text:
    R. G. Musgrove v. The Catholic Church of St. Louis.

      It seems that individuals have the right to sue for the abatement of a nuisance.
    A cemetery is not per se a nuisance; special circumstances are requisite to make it such.
    A PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    XL Filleul, for plaintiff.

      Preaux, for defendant and appellant. ■
   Buchanan, J.

By an Act of the Legislature, approved March 16, 1848, entitled an Act to enlarge the powers of the wardens of the Church of St. Louis, of New Orleans, the defendants, a religious corporation of this State, were authorized to establish, within the limits of New Orleans, a cemetery for the burial of Roman Catholics; provided said cemetery, be established at a distance of at least one mile from the left bank of the river, and provided the consent of the Municipality in which the same may be located be first obtained.

At a sitting of the Council of Municipality No. Three, of'the city of New Orleans, on the 18th November, 1850, resolutions were, adopted which were approved by the Mayor on the 2Gth November, 1850, authorizing the defendants to establish a cemetery within the said Municipality, to wit: on land acquired by the Church Wardens from Mr. Felix Labalut, and in the resolutions described; also authorizing the Mayor to sign, on behalf of the Municipality, all notarial acts required by the defendants, in order to carry into effect the foregoing resolution.

On the Gth December, 1850, a notarial act was passed in pursuance of these resolurions, to which were parties the defendants and the Third Municipality of the city of New Orleans, and by which it was agreed that the defendants might establish a cemetery upon the land mentioned in the resolutions of the Municipal Council above recited, upon the conditions: 1st, That neither the Council nor the defendants should have the right of changing the destination of said cemetery, unless with the consent of the families or relations of the dead buried therein. 2d, That at least fifty Indigent of the Third Municipality shall every year be buried in said cemetery, on the order of the Recorder, and at the expense of the defendants.

By the effect of the consolidation Act of 1852, the city of New Orleans, a new corporation created by that Act, succeeded to the rights and obligations of the municipal corporations previously existing, the Third Municipality included. By resolution, approved by the Mayor the 4th December, 1854, the corporation of the city of' New Orleans repealed the resolutions of the Municipality No. Three of the November, 1850.

Up to the time of this repeal the defendants had done nothing towards availing themselves of the right given them by the Act of the Legislature, the resolutions of the Municipal Council, and the contract aforesaid, to establish a cemetery at or near the Bayou St. John. But between the 18th and the 22d January, 1855, they interred a dead body in the land mentioned in the said resolutions and contract.

The plaintiffs, proprietors of land in the neighborhood, have sued out an injunction to prohibit the defendants from continuing the interment of dead bodies at this place, on the grounds: 1st, That such use of the property is a nuisance prejudicial to the health and offensive to the feelings of the plaintiffs. 2d, That the authority to establish graveyards is vested exclusively in the Mayor and Aldermen of New Orleans, who have formally prohibited defendants from establishing the one now complained of by their resolution of the 4th December, 1854.

The defendants have questioned the right of plaintiffs to prosecute the abatement of a nuisance. Upon this point, however, the authorities seem to be in favor of plaintiffs. Herbert v. Benson, 2 An., 770.

The evidence does not establish the nuisance complained of. It is even doubtful whether the burial-ground of defendants is distinctly visible from the premises of the plaintiff. The latter fronts on the Bayou St. John, the cemetery of defendants fronts on -Esplanade street. Besides, it is not shown that the cemetery of the defendants offends the senses of passengers or of residents in the neighborhood. The vicinity of a graveyard is undoubtedly unpleasant from associations with ideas the most repugnant to human nature, and frequently exaggerated by superstitious terrors. But it cannot be denied that a repository for the bodies of the dead is an indispensable part of every town or village, and, under the superintendence of a good police, there is not, necessarily, anything shocking or offensive to the senses in such a repository. On the contrary, a cemetery may be rendered one of the most attractive ornaments of a city, and it is believed that such is the case with those of New Orleans in general. We would not, therefore he prepared to say that the vicinity of a cemetery is, per se, a nuisance, without proof of special circumstances which would make it such. But in this case not only are such circumstances entirely wanting, but the petition admits that the municipal corporation has the power to locate cemeteries; and the proof is, that the cemetery in question has been located not merely by a resolution of the corporation, but by a formal contract before a Notary Public.

The repeal by the existing corporation of the resolutions adopted by the Third Municipality involves very important questions of vested rights on the one side, and of the police authority of the corporation on the other, which it is neither necessary for the decision of the present cause nor proper now to decide, inasmuch as the city corporation is not a party to this suit.

It is therefore adjudged and decreed that the judgment of the District Court be reversed, that the injunction herein issued be dissolved, and that there be judgment for defendants, with costs of both courts.


source: Caselaw Access Project

author: Ogden, J. Spojtoud, J.

license: Public Domain

text:
    J. E. Zuntz v. Miss A. M. Cornen and Mrs. Moussier.
    The incapacity of a married woman to contract, is not absolute.
    A married woman who signs a note and executes an authentic act of mortgage, with the authority of her husband, to receive its payment, cannot arrest an order of seizure and sale simply on the ground that she was a married woman. Nor can she arrest such an order upon a mere suggestion of want of lawful consideration of the notes, without affidavit.
    Where the authentic acts bear intrinsic evidence that the wife has exceeded her powers, the Judge should not issue an order of seizure and sale ; but where they do not bear such evidence, the order should be issued, and the wife left to her remedy, like other defendants in executory process, by injunction upon affidavit.
    C. 0. 124, 1779, 2867, 2411, 2412.
    from the District Court of the Parish of Plaquemines, Rousseau, J.

      H. JD. Ogden, for plaintiff:
    1. It is an attempt to change the proceedings via exeautiva into via ordi-naria, without plaintiff’s assent, either expressed or implied. 2 An. 488.
    2. The proceedings are not in conformity to the mode prescribed by law.
    The only remedy, authorized by the facts of the case, is that subsequently-resorted to, viz : an injunction. O. P. 738 et al. 4 Rob. 492. 2 Rob. 90.

      Ro&ier and Penrose, for defendants and appellants :
    It appears from the- face of the papers that an order of seizure issued erroneously. The mortgage act shows that at the time of the execution of the notes and mortgage, Mrs. Moussier was married — a community of acquets and gains existed between her and her husband. It is not stated in the act that the debt was incurred for the benefit and use of the wife; the mere acknowledgment is that she, being indebted, mortgages, for the security of the debt, a certain plantation and slaves. The petition contains no other allegations. The presumption of the law arising is, that the notes were executed in consideration of a debt incurred by the husband, and for which he alone was responsible. The husband being the head and master of the community, all contracts entered into during the marriage must be considered as made by him, and for his advantage, whether they be made in his own name or in the name of both husband and wife. This presumption can be destroyed only by positive proof that the consideration of the contract enured to the separate benefit and advantage of the wife. It is clear that the acknowledgment made by the wife in the instrument itself, cannot avail the plaintiff; if it could, the protection which the law gives to married women would be nugatory. 6 Rob. 67. O. O. 2371. Although the debt was incurred in the name of the wife, still it is considered the debt of the husband. But even if the wife had acknowledged that the debt had enured to her sole benefit, nevertheless the wife has a right to force the creditor to prove it before he can exercise his right of selling her property.
    A married woman who has given a mortgage upon her pal'aphernal property to secure advances which the act acknowledges to have enured to her benefit, is not thereby estopped from showing that the advances were not for her benefit, and that she is not bound by the act of mortgage. 5 An. 586. The onus probandi that the debt enured to the benefit of the wife is on the plaintiff-. 3 La. 74. 4 Rob. 509. 1 An. 428. The law forbids the transfer of parapher-nal property of the wife to pay the debts of the husband, or the debts of the community which he was bound to pay. 5 An. 572. 0.0.2912. A mortgage executed by a husband, under a power of attorney from his wife who was separated in property, on the paraphernal funds of the latter to secure the repayment of an amount alleged in the act to have been lent to the husband as her agent, but which was not shown to have been applied to her use, cannot be enforced. 0. 0. 2412. It is incumbent on the party seeking to enforce the contract of a married woman, to show that it enured to her benefit. 1 An. 424, 53. The wife is not estopped from setting up the defence, by her acknowledgment of the indebtedness, in an act of mortgage. 5 Ann. 173. In the case of Barilo of Louisiana v. Farrar, 54-, it is laid down that the Article 2412 makes no change in the law as it stood, at the time the sixty-first law of Toro was in force. By this law it was enacted, “ and we do also order that when the husband and wife shall bind themselves jointly in one contract or severally, the wife shall not be bound in anything, unless it shall be proved that the debt was converted to her benefit.”
   Ogden, J.

(Slidell, 0. J., absent.)

This appeal is taken by the defendants from an order made by the court below, dismissing the oppositions of the defendants to an order of seizure and sale which the plaintiff had obtained.

The order of seizure and sale was granted on an act of mortgage executed by the defendants in favor of Maunsel White, to secure the payment of three promissory notes executed by the defendants for $10,766 each. The notes are the first and second notes of the defendants, payable to their own order, and Mrs. M. Moussier, being a married woman, was authorized by her husband to sign them.

The opposition of Mrs. Moussier sets forth that she was a married woman, and, that her notes were not therefore binding on her. She does not allege that the notes were given for a debt of her husband, but denies that she ever received any consideration therefor. The opposition was not sworn to and no injunction was prayed for. The other defendant took a rule on the plaintiff to show cause why the order of seizure and sale should not be set aside, on the ground that the defendants were entitled to certain credits, which could only be finally determined in an ordinary action. The Judge of the court below dismissed the oppositions of both defendants, on the ground that the only mode of arresting an order of seizure and sale, pointed out by law, was by an injunction.

The appellants’ counsel argues that the appeal is taken from the order of seizure and sale, as well as from the order dismissing the oppositions, and contends that, on the face of the petition of the plaintiff, it appears that the order of seizure and sale could not have legally issued against Mrs. Moussier, who was a married woman.

The defendants have not filed an assignment of errors as required by the Code of Practice, when the case comes up without any bill of exceptions or certificate of the Clerk that the transcript contains all the evidence. No motion having been made to dismiss the appeal on that ground, we have considered the ease as if the appeal had been taken directly from the order of seizure and sale, and we are of opinion that the averments in the petition and the act of mortgage, and of subrogation by Maunsel White, of the plaintiff to his rights under the mortgage, was sufficient to authorize the order of seizure and sale against Mrs. Moussier. The incapacity of married women to contract is not absolute. Helling v. West, 2 An. 1. Mr. Moussier was authorized by her husband to enter into the contract, as appears on the face of the notes. It does not appear on the face of the proceedings, that the obligation she entered into was null and void, and no legal defence is suggested in the opposition which, without being- sworn to, ought not to have been received. Code of Practice, Art. 788.

Plaintiff, by a supplemental petition, allowed certain credits, and it is not alleged by either of the defendants, that there are any other credits to which they are justly entitled. If there were such, the defendants should have filed an opposition under oath, setting forth the payments which had been made, and praying for an injunction in conformity with Art. 739 of the Code of Practice.

The court below did not err in dismissing the oppositions, and the judgment is therefore affirmed, with costs.

Spojtoud, J.

I conenr in the opinion prepared by Mr. Justice Ogden, and add the following reasons :

A single, and a married woman authorized by her husband, executed their joint and several notes, and secured them by an authentic act of mortgage importing a confession of judgment upon a plantation and certain slaves.

.It is contended that an order of seizure and sale could not be lawfully issued upon these authentic documents, although no informality is suggested, simply because one of the parties is a married woman.

It is also contended that the order of seizure and sale could be arrested by the married woman without affidavit or bond, upon her mere suggestion of a want of lawful consideration for the notes.

These propositions are novel and startling, and no precedent is cited to sustain them, if they are well founded in law, then no order of seizure and sale can ever be properly issued upon an authentic act of mortgage, when a married woman is one of the mortgagors, for the proof of consideration, and that such consideration enured to the separate benefit of the married woman, is, under the decisions, necessarily a matter in pais; her own acknowledgment in either act not constituting proof thereof.

The check that such a doctrine would impose upon the operations of commerce in a community where so large an amount of property is held by married women, should make us pause, before we add this to the other embarrassments of business in this State.

The wife, whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband nor conjointly with him, for debts contracted by him before or during the marriage.” C. C. 2412.

But, in the ease before us, the wife does not pretend to bind herself for her husband, nor conjointly with him. Duly authorized by her husband, she confesses judgment for a debt apparently her own.

Must the judge, in such a case, without any evidence before him but the authentic act, on which, there appears no single circumstance of suspicion, presume that it contains a latent fraud upon the law ? Has such fraud become so common as to be the rule instead of the exception, and to impose upon our District Judges the necessity, in all cases, of exempting the property of married women from the executory process ? I think not. At any rate, no adjudicated case has said so; but we must say so, to reverse the judgment of the District Court.

The true doctrine, is, that where the authentic acts bear intrinsic evidence that the wife has exceeded her powers, the judge should not issue an order of seizure and sale; but where they do not bear such evidence, the order should be issued and the wife left to her remedy, like other defendants in executory process, by injunction upon affidavit. C. P. 738, 739 ; Exchange and Banking Co. v. Walden, 15 L. R. 433 ; Clement v. Oakey, 3 Rob. 90; Minot v. United Stales, 4 Rob. 493.

For, the wife may, in certain cases, validly mortgage her property with the authorization of her husband, in writing. C. C. 124,1779, 2367, 2411.

It is true, that, when an issue is properly made up between the parties, the burden of proving the affirmative that the debt of the wife (particularly where it has been contracted conjointly with her husband) enured to her separate benefit, has been thrown upon the creditor. But, in no case does it appear that such an issue was made by rule upon simple suggestion without affidavit, when an order of seizure had been issued upon authentic documents unsuspicious upon their face.

The case of Durnford v. Gross and Wife, 7 M. 465, was an ordinary action against the wife upon a promissory note signed conjointly with her husband. So was the case of Davidson v. Stewart, 10 L. R. 146.

Brandegee v. Kerr and Wife, 7 N. S. 64, was an ordinary suit upon a promissory note made by the wife and endorsed by the husband, which, the court remarked, could not be distinguished from a joint and several note of husband and wife.

Prudhomme v. Edens, Administrator, 6 Rob. 65, was an action vid ordinaria upon a note drawn in solido by husband and wife.

The Firemen's Insurance Company v. Cross, 4 Rob. 510, was an ordinary suit upon a note made by the defendant, authorized by her husband, who also, in the accompanying acts of mortgage, bound himself for the debt; but the point decided was, that the District Judge ruled correctly in allowing the defendant to show by testimony that the loan was actually made to Osborn Cross her husband, and not to her herself, as stated in the acts.

Patterson & Co. v. Fraser and Wife, 5 An. 586, was an ordinary action, in which the wife denied her acknowledgment in an authentic act made when she was a minor under marital authority. The evidence cast various circumstances of suspicion upon the good faith of the act, and the court refused to hold the wife bound.

De Gaalon v. Matherue, 5 An. 495, was a simple suit upon a promissory note, and the wife proved that her husband had received the consideration, and was released.

Provost v. Provost, 5 An. 574, was an action by a married woman to annul an assignment made by her, and the court said that, under the evidence, there was no douht that the assignment was an attempt to apply the separate property of the wife to the payment of the debts of the husband, which the law forbids.

In Pascal v. Sauvinet, 1 An. 428, the wife sued out an injunction against an order of seizure and sale upon a mortgage, which, her husband, as her attorney in fact, had given ; the court sustained the injunction, stating that the evidence rendered it probable that the loan and mortgage were made without her knowledge or consent, and that the money whiph was received by the husband, was applied exclusively to his own use.

In Taylor v. Carlyle, 2 An. 579, the plaintiff, a married woman, also enjoined an order of seizure and sale against her property, upon the ground that the debt for which the mortgage was given, was her husband’s debt; the court said the evidence satisfactorily established the averment, and perpetuated the injunction.

Ervin v. McCalop, 5 An. 173, was an injunction sued out by the wife, against an order of seizure and sale under similar circumstances. The defendant in injunction met the issue, and attempted to prove that the debt inured to the benefit of the plaintiff, in which he failed.

In Beauregard v. Her Husband, 7 An. 293,it appears that the note upon which the order of seizure and sale issued was the joint and several obligation of the husband and wife, and, therefore, came within the prohibition of C. C. 2412.— Still, the wife went through all the formalities of an injunction to stay the sale, and succeeded.

Not one of these cases sustains the position of the appellant, that the petition and documents annexed do not make out a proper case for an order of seizure and sale, or that, it is competent for her to arrest the order by her unsworn statement, in a rule, that ihe notes were without consideration.

She should have proceeded by injunction, if she wished to arrest so solemn a proceeding as this order, based upon her own formal act importing a confession of judgment. *.


author: Voorhies, J. Spoffobd, J.

text:
    S. B. Conrey v. T. B. Hoover.
    A broker sold bills of exchange which were not paid at maturity. He afterwards assisted the accexifcors in effecting an arrangement to secure their payment by mortgage. Held, that in the latter transaction he acted as an attorney in fact, and not as broker, and therefore, he could not recover a broker’s commission for the service. 0. C.1986, 2960, 2986.
    from the Eourth District Court of New Orleans, Reynolds, J.

      Olcoit, for plaintiff.

      Henderson, for defendant and appellant.
   Voorhies, J.

Maunsel White & Co. employed the plaintiff and paid him a commission as broker to sell certain bills of exchange, of which they were the acceptors, amounting to $40,230 50, and the defendant became the purchaser thereof. Those bills were dishonored at maturity, and the paper of that firm became depreciated in value from 20 to 35 per centum. Maunsel White then renewed and secured those bills by a mortgage on his property in favor of the defendant, who granted him a prolongation of the term. This arrangement appears to have been effected through the agency of the plaintiff after several interviews with Mr. White. The settlement was made in presence of the defendant, who received the mortgage notes in lieu of those protested. The deed of mortgage was prepared under the directions- of both,the plaintiff and Maunsel White.

For the services thus rendered the plaintiff claims $815 92, and the further sum of $33 44, “ for brokerage in renewing protested paper of Q. Burke & Co., without obtaining mortgage, say $3,344 at 1 per cent.”

The defendant is appellant from a judgment rendered against him in favor of the plaintiff for these two sums.

Tho principal ground on which ho rests his defence is, that the plaintiff, as broker, sold him the bills, and then under the pretence of friendship, and affecting to be desirous to aid him in securing tho same, officiously obtruded himself in the settlement made by defendant with Haunsel White & Go.

The testimony of 8. W. Taylor, the only evidence touching the protested paper of G. Barhe & Go., shows that the witness himself settled the matter directly with Hoover in presence of Gonrey.

On the one hand we have before us the testimony of three witnesses. The first proves that he considers the value of the services rendered by the plaintiff to be fully worth per cent, on tho amount of the matter adjusted: the witness is not a broker. The second witness says, that he knows of no customary rate of charge by brokers for the settlement of protested paper, as it does not come under the head of brolcerage rates. He would say that 5 per cent, on the amount arranged ($40,796) would be a low compensation. As soon as a sale of paper is effected by him, he considers his duty at an end. Should it afterwards be protested and the vendee apply for his aid to secure its payment, and he did so, ho would charge for his services. This is not legitimate brokerage, but agency; and ho never did such business. He might charge for it one per cent., ten per cent.; it would depend altogether upon the services. He would not consider it his moral or legal duty to aid a party to whom he sold paper, which was afterwards protested, to secure it. The third witness says that he is a broker; that after he has sold paper to a party, he considers that he has done with the transaction. He would not give his aid to the purchaser to secure such paper, unless his commission were paid; and would make the same charge as broker when he sold the paper, and not as agent; and this he believes to be the custom.

On the other hand wo have also the testimony of three witnesses : The first says, ho is a broker in this city; whenever he has procured paper for a party the payment of which was delayed, he used all his exertions to procure the payment of that paper without any charge, and this has always been his custom. He considers it to be the interest of the broker, in order to get business that he should exert himself to secure the payment of paper sold by him to a party. The second witness says, that he is and has been a broker for twelve years; when a party purchases paper from him as a broker, and which is not paid at maturity, he considers himself bound to assist the purchaser in obtaining tho payment thereof, without any charge. It occurred only in three or four cases that paper sold by him was not paid at maturity, and he assisted the parties to secure their money. The third witness says that he is and has been a broker for twelve years: that it is not usual or customary for a broker to charge the buyer any commissions for aiding to secure paper which he has sold him. The highest commission charged for the sale of paper, which is paid by the seller, is one per centum. After the sale, he considers his obligation legally at an end, but at the same time thinks it is his moral duty to assist in securing the debt when it becomes doubtful or is protested, without any charge.

Upon this state of facts the question arises, is the defendant liable to the plaintiff for any commission or compensation ? If so, for what amount?

It is perfectly clear that tho services were not rendered by the plaintiff as broker. 11 The broker or intermediary is he who is employed to negotiate a a matter between two parties, and who, for that reason, is considered as the mandatory of both.” O. 0. 2985. It is a trade or occupation. There are various classes of brokers. Their commissions are generally regulated by usag’e. The testimony of one of the witnesses shows that the highest rate of commission or brokerage for the sale of paper in this city is one per centum. Hence it follows that the alleged services were rendered by plaintiff, not as a broker, but as an attorney in fact. “ The procuration is gratuitous unless there have been a contrary agreement.” 0. 0. 2960. This Article corresponds with Article 1986 of the Napoleon Code. Duranton, in his commentary upon it says: “ Au surplus, quoique le mandat soit (jratuit de sa nature, cela n’est vrai au moins que dans le cas oh on peut le considérer comme un office d’ami, et non lorsqu’il est Vexereice d’une profession. Dans le dernier cas, le salaire est dff. suivant la nature de l’affaire, et au taux reglé par la loi ou Vusage ; il est censé stipulé au moins. Tel est le cas oú je charge un avoué de s’occuper pour moi dans telle affaire, un agent de change de me vendre ou de m’acheter des rentes sur l’Etat, un eommissionnaire de vendre mes vins, &e. &c., dans tous ces cas et d’nutres analogues, je dois le salaire d'usage: il est taoitement con-venu.” 18 Dur. No. 187. How then can it;be urged that the plaintiff’s claim results from the exercise of a profession, and that his commission is regulated by law or usage — “le salaire est du suivant la nature de l’affaire et au taux régle par la loi ou l’usage ?” There being no contrary agreement, it is clear that the procuration in this case must be iooked upon as gratuitous, a mere office d’ami. It was natural under the obligations imposed on him by law as broker or intermediary, that the plaintiff should have lent his assistance to the parties to carry out the original contract in good faith. 0. 0. 2986. There is not a single case mentioned by any of the plaintiff’s witnesses, in which compensation has ever been claimed or allowed for such services, whilst on the other hand it is shown that similar services have been rendered without any compensation.

On the hypothesis that the plaintiff is entitled to recover anything, the amount claimed and awarded to him is manifestly exorbitant and dispropor-tioned to the value of his services. Taking 35 por cent, as the highest estimate of the depreciation of the paper of Mauns'el White.& Go., it results then that the amount really secured was only §11,199, and that the plaintiff’s commission amounts to $815 92. The calculation of interest on eleven bills made by the plaintiff for the defendant and by Mr. Garl Kohn for Maunsel White & Go., constituted the settlement. Under all the circumstances of the case, it is clear that the plaintiff is not entitled to judgment without proof of a special agreement, of which we find none in the record.

It is, therefore, ordered that the judgment of the District Court bo reversed, and the plaintiff’s demand dismissed as in case of non-suit.

Spoffobd, J.

I concur in the decree only upon the ground that the evidence is not sufficiently explicit as to the extent and value of the plaintiff’s services to the defendant.


author: Slidell, C. J.

text:
    Connor’s Widow v. Administrators and Heirs of Connor.
    A marriage was solemnized in Mississippi between a’ resident of that State and a minor resident of Louisiana, the tutor not objecting thereto, and Mississippi being the matrimonial domicil and so contemplated by the parties at the time of the marriage. ITeldy That although it was the intention of the parties to be married in Louisiana, which was prevented solely by accident, yet the mar" riage was not constructively and de jure a marriage in Louisiana, and after the death of the husband, the widow was not entitled to any portion of the estate in Louisiana as community property under the Code of 1808, which was in force at the time of the marriage.
    That certain monies belonging to the wife in Louisiana and received by the husband and invested by him in property in Mississippi, did not constitute her paraphenal funds for which the husband was liable, but became the absolute property of the husband^wre onariU, under the laws of Mississippi, that being the matrimonial domicil.
    That the widow having brought no dowry and being left in comparatively necessitous circumstances is entitled to her mw'iialpooiion in the real estate of Louisiana.
    The discrimination which the Codes of 1S08 and 1825 make between the rights of wives domicilia-ted in Louisiana, and those domiciliated in other States on the subject of community is not unconstitutional.
    0. C. 2829.
    from the District Court of Tensas, Snyder, J,
    . Farra/i' and Henderson, for plaintiff:
    The petitioner, a citizen of the United States, and widow of Henry L. Connor, deceased, of the State of Mississippi, sues for community in “ Arcóle Plantation,” an estate in parish of Tensas, of the succession of said H. L. Conner, deceased.
    Her first ground for this claim is, — that her case falls within the laws and decisions of the State of Louisiana, which fix and confer the right, for these reasons:
    1st. She was a citizen ward of the State of Louisiana when married.
    2d. She was married during the continuance of the Code of 1808.
    3d. She was constructively and de jure married in Louisiana.
    4th. It was the ante-nuptial intention of the spouses, to have made Louisiana their residence.
    5th. Mere accident, and the post-nuptial purpose of her husband, made Mississippi their actual residence, but to which act, petitioner, then a minor, and without disposing will, could give no assent.
    All these facts are set forth in the petition, and most abundantly sustained in the proof; and on these predicates we invoke the following principles of Louisiana authority:
    1st. This was a marriage of a Louisiana ward, and to all legal intents was a Louisiana marriage. And both codes are express that as to such marriage, property acquired in Louisiana is subject to community. O. C. p. 336, Art. 63, p. 324, Art. 10 ; O. O. Art. 2369 ; Stor. Com. L., p. 292, note 3.
    This rule is fully recognised in McGill's case, 6 An. 344-5, and 6 An. 257.
    2d. At the time of the marriage, it is in clear proof, and without contradiction, that Louisiana was the contemplated domicil of the spouses after marriage, and this, as to marriages out of Louisiana, with but partial and occasional residence in Louisiana is held sufficient to subject the martial rights to Louisiana law.

      Rouih's ease, 9 Rob. 224; Fisher's case, 2 An. 775 ; and in Walker v. Dme-race, extended to slaves never in Louisiana, 4, An. 669.
    To same effect is Rowley v. Rowley, 19 Louisiana, 573-578.
    When the marriage was in Louisiana, and the property in Louisiana, and domicil intended to have been in Louisiana, no such case has been decided denying the widow community. When superinduced by the marriage, it has never been disallowed for any cause.
    3d. This marriage was contracted under the O. 0., and Spanish law, and ' these did not require domicil to give community. 1 Partidas, 532, Tit. 11, Law 24. Saul v. Ms creditors, 6, N. S. 577, 580, 586,589, 595. Cole's wife v. his Hews, 44-47 (43 and 51). Dixon v. Dixon's Executor, 4. La. 190.

      4th. The rights of community attached, by virtue of the laws in force at the time and place of marriage. And this rule is a forced sequent from the language of both Codes. That every marriage in this State superinduces of right community of gains. That is, the fact of marriage in the State begets the right, and it thereupon attaches to all property acquisitions in this State as a consequence.
    It follows, therefore, that no repeal of the law so then in force, could divest or abate the right. O. C. p. 336, Art. 63; p. 324, Art. 10; 4 La. 191, 192, 193 ; 9 La. 145 ; 4 Mart. 648; 9 La. 583-4; 5 An. 144.
    5th. It is well known that community in the civil law, is the substitute for dower and distribution of the common law. The laws of all nations make provision for widows, from succession of estates within their jurisdiction. This law, or provision, by whatever name, is a real statute when applied to immov-ables.
    Story’s Con. of Law, 3d Ed. p. 278, note 1.
    The common law rule is plainly to this effect. Stor. C. L. §454, and see also §461. Wheat’s International Law 127, 128.
    It was well aad clearly decided under the old code that the statute regulating the rights of husband and wife was a real, and not a personal statute. Hence said the court:
    “It follows then, as a consequence, that próperty within the limits of this State must, on the dissolution of the marriage, be distributed according to the laws of Louisiana, no matter where the parties reside; because viewing the statute as real, it is the thing on which it operates that gives it application, not the residence of the person who may profit by the rule it contains.”

      Cole’s wife, 7 N. S. 44 (id. p. 47.) To same effect, Saul v. His Creditors, 5 N. S. and Dixon v. Dixon, 4 La. 190; 1st Partidas, p. 532, Tit. 11; L..24. This reasoning w'e maintain, has a force-of logic, that ever has, and ever will resist all assault. Grant the proposition that the law of community is a real statute, and the consequence dedueed in Cole’s casé is an inevitable result
    In fact, the definition of a real statute may be rendered, a law which exerts its force independent of the personal incidents of parties, to be affected by it. 3 An. 426.
    But in HachiooocCs ease, and long since the O. C., the court, with much display of learning, affirm the doctrine that the law of community is a real statute. 9 Rob, 443.
    By what new logic, then, can it be maintained, that by inference and deduction, and not the language of the new code, that a prominent object and result of this real statute is to discriminate between the residence of persons who claim its benefits?
    The new code has said, (which the old code omitted to say) — “ A marriage contracted out of the State, between persons who afterwards come here to live, is also subjected to the community of acquets and gains, with respect to such property as is acquired after their arrival.” Art. 2370.
    Now this, we contend, is but a declaration of what the law in like case was before, and as the courts so before decided. But the courts since have seized on the negative pregnant in this article, and decided that if the parties don’t remove to Louisiana, the wife has no community rights. Just as well decide that in property acquired in Louisiana before the removal of the spouses there, the husband also should have no heritable rights, but the same should escheat to the State.
    We, however, respectfully forbear to press any now views upon the construction of Art. 2370 of the new code. We hope and prefer, to convince the court that our rights are established and maintainable under the old code, without interfering with the court’s construction of this article and its accessories of the code of 1825. And because, too, we consider our case exempted from the operation of this article of the code of 1825, for reason that ours was a Louisiana marriage — with the intention of a Louisiana domicil.
    But should the court overrule us in all our pretensions of right, as before shown, and consider our case within the ostracism, of this article, and that this article has been heretofore rightly construed, then wo say the article is in manifest conflict with sec. 2, art. 4, O. U. S.
    “ The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

      Privileges are rights; immunities are exemptions: the first are direct and positive; the second more negative in character. These privileges, we consider, are necessarily and exactly civil privileges, and are clearly distinguished from franchise, powers, and authorities. All such are political rights, and not included in this common grant and concession of civil privileges, secured to all the citizens of the United States, in each and all of the several States.
    This grant is said to have its predicate on another power in the O. U. S., that of naturalization. The two most obviously deprive the several States of all authority to make laws of alienage against the citizens of any one of the United States.
    Now, the usual and most common privation of alienage is incapacity to take, hold, inherit, and transmit property. This article of the code is a direct penalty of alienage, applied to a citizen of a State of the Union.
    Our position is, that a Mississippi wife, widow, or heir, in regard to real property in Louisiana, is entitled by constitutional “ privilege ” to the same rights of a Louisiana wife, widow, or heir, in like relation to the same property.
    Is not this proposition clear of all doubt? And so universally in conformity to the common understanding, that this article of the code, perhaps, stands alone, in the legislation of the States, in its alienage policy of exclusion. Even Louisiana has no such exclusion against a non-resident heir, and without a show of reason for the discrimiaation, accords to a non-resident widow what in Louisiana jurisprudence is denominated the marital portion. 0, C., p. 334-, art. 65 ; 0. 0. art. 2359 ; 5 Ann. 159, 160. 3 N. S., 1, 2.
    From all prejudice under this disparaging exception of the code of 1825, we claim protection under this higher law.
    Mr. Hamilton, in the Federalist, No. 80, p. 321, considers this section “ the basis of Union,” and attaches much importance that it is reserved to the federal judiciary, “ to secure the full effect of so fundamental a provision, against all evasion and subterfuge.”
    In No. 42, pp. 170,171, Mr. Madison much commends the objects of this provision in connexion with the naturalization power.
    Justice Story, in his Commentaries on the Constitution of the United States, adverts to the defects of this power in the articles of confederation, as well from the imperfect language used to express it, as that it was dangerous and impractical; because the power of naturalization remained with the States. He regards the section as a clear inhibitory clause against the power of the States, on the subject of alienage, and especially as affecting the rights of citizens of the United States to “hold real estate, or have other privileges, except as aliens.” And says: “ The intention of this clause was to confer on them, if one may so say, a general citizenship, and to communicate all the piivileges and immunities which the citizens of the same State would be entitled to under the same circumstances.” Vol. 3, secs. 1800 and 1799.
    I do not find a direct judicial decision by the Supreme Court of the United States on this clause. In Banh of Augusta v.. Émle, 13 Pet. 552, 553, Mr. Webster, arguendo, gave the same interpretation to this clause which we seek for it here ; and to the assertion of such rights said, “ it is evidently not in the power of any State to impose any hindrance or embarrassment.” His point was, “ that citizens of other States may trade in Alabama in whatsoever is lawful to citizens of Alabama.”
    This court, by its Chief Justice, rightly decided in that case, the rule invoked did not apply, because it was a foreign corporation, instead of citizens, who sought the privilege.
    In Groves v. Slaughter, 15 Pet. R., 515, Judge Baldwin held that it was competent for a State to regulate its internal commerce in slaves. But whatever privilege it gave to its own citizens in this traffic, enured of right to all the citizens of the United States under this section.
    The allusion to this clause by the Chief Justice, in the case of Priggs v. Commonwealth of Pennsylvania, 16 Pet. p. 629, I understand as approving our construction. A ¡ike allusion of the Chief Justice is found in the License cases, 5 How. 585.
    The Congress of the United States, by its resolution of 2d March, 1821, (6 Stat. at Large, 590,) expunged from the Constitution of the State of Missouri, a clause which was considered as reserving to the State, the power to contravene that section of the Constitution of the United States. Yet Louisiana, by its new codo, Art. 2370, and its judicial construction, has exerted the same power against non-resident wives, as if she was under no restraint by this section of the Constitution of the United States, and had-the right to regard as aliens the citizens of the United States. If she can so legislate against a non-resident wife, she may also against a non-resident husband or heir, and may, of course, discriminate among States in her penalties of alienage, and confer the favor of citizen privileges as may suit her caprice.
    There is no intention of reflecting upon the policy of Louisiana on this subject. So far as noted, it is, perhaps, an isolated ease of such legislation; and as we believe rightly, fairly, and liberally construed, it is not the necessary interpretation of her law. The new code is wholly silent as to what are the rights of a non-resident wife. The old code was equally so. But the courts, by construction of the old code and the Spanish laws, determined her rights were the same as a resident wife. They adjudged, (as the court adjudges since the code of 1825,) that the law of community is a real statute. If this be so, it legally and legitimately follows, that its construction is wholly irrespective of the domi-cil of the parties.
    And it may be noted too, that while the courts’ decisions for years past, have marked community rights with a rather restrictive policy, the Legislature, by the Act of 1844, considerably extended those rights.
    And this judicial policy was scarcely enunciated from the bench, in the case of Huff v. Borland, 6 An. 437, when the Legislature repudiated the entire alien-age principle, by the Act of 18th March, 1852. It is not pretended the Legislature pointed its action in rebuke of the court; but we refer to these acts as grounds for suggestion, that the laws we invoke, liberally construed, fully sustain our right of action in this case; and that such liberal interpretation should be indulged, as best comporting with the legislative will on the same subject. The Act last referred to, is as follows :
    “ No. 292. — An Act relative to the property of non-resident persons in this State.
    “Be it enacted, &c., That all property hereafter acquired in this State, by nonresident married persons, whether the title thereto be in the name of either the husband or wife, or in their joint names, shall be subject to the same provision of law which now regulates the community of acquets and gains between citizens of this State. Approved March 18th, 1852.”
    This law corrects the evil for the future; but we earnestly entreat this court to protect us from this unauthorized penalty which is supposed to have been incurred by us in the past.
    The judicial construction of this Article 2370, has never been considered in Louisiana with any reference to the clause in the Constitution of the United States before referred to. But the affirmative disqualification against the nonresident wife is deduced from the negative pregnant of this article. And, in doing so, the law of community is by implication adjudged a personal statute; whereas all the decisions on the direct point adjudges it a real statute. The construction, therefore, is not necessarily required by the language of the article; is vastly restrictive, and we believe, erroneous. But jt is so adhered to. See succession of McGill, 6th An. 314. If, therefore, the code of 1825, is to have any bearing in this case on this point, then we confront such interpretation of this article with the Constitution of the United States, and ask for a judicial conformation of the article to this superior authority.
    But if the court shall he of opinion that the construction of Art. 2370 of the new Code precludes our right of recovery, and shall entertain the further opinion that the Constitution of the United States, as referred to by us, does not require this court to remit the plaintiff to the same right in this case, as if a widow of this State; then we respectfully solicit the honorable court so to pronounce its opinion, that we may, if deemed necessary, review its judgment in the Supreme Court of the United States.
    The plaintiff is also entitled to recover the amount of her paraphernal property received by her husband in the State of Louisiana, after her marriage.
    Paid H. L. u., by Judge Porter, plaintiff’s guardian, $4,452 24.
    Judge Balter's deposition, paid R. L. (7., for plaintiff’s lands, $1,600.
    Dr. Metcalf's deposition, value of lot-horses, $250. — -Total $6,802 24.
    Deposition of Mrs. Ker, proves amount about $7,000.
    This right adjudged in principle,, in the case'of Arnold v. McBride, G An. 703. To same effect, Pulliam v. Pulliam,Prem. Ch. R. 354. 7 La. 194. 10 La. 260.

      To the case so made and proven, the defendants plead generally and specially : First, a general denial except as admitted, and then specialty set forth the alleged facts of the marriage succession and inheritance, and all the proceedings had in administration of the estate; and especially the proceedings had to effect partition, and this judgment of partition is plead in bar res judicata.

    But the defence does not set up the acts of plaintiff or her attorneys as ratification or judicial admission of defendant’s pretensions.
    The res judicata is not well plead and cannot avail. Neither the parties, or matters in issue, in the partition were the same as in this case.
    1st. This suit is by the mother in her personal right and against all her children, her wards included.
    That was by part of her children against her as tutrix for the minors.
    2. To this suit Elliot and Marshall are defendants, but were not parties in that.
    3d. The suit for partition involved no rights of third parties, claiming adverse to the alleged inheritance. And the plaintiff’s claim in this suit could only have been presented in that, by a third opposition, which she was not bound to interpose.
    4th. Subject matter in controversy was in no wise similar; much less identical.
    Sth. The judgment plead was not, and is not final. Its appeal was perfected 22d of April, 1853, and seven months before one of defendants {Marshall) plead it res judicata.

    We consider, therefore, there is no plausible foundation for this plea.
    As to the facts supposed to be admitted in the record by the plaintiff, adverse to her title, as assorted in this suit,, and tending to establish and sustain the title of defendants, even if these were relied on in the defence as judicial admissions, or ratification, they could avail defendants nothing. These supposed admissions are contained in two petitions, filed by counsel in plaintiff’s name as tutrix, the one filed on the 8d of September, 1851, the other on the 15th of March, 1852.
    On the first, no order or procedure of any kind appears to have been taken. And being in no sense a judicial proceeding, its averments could not be assumed as judicial admissions.
    The other petition professes to express her desire as tutrix, to promote the partition sought for by Mrs. Brídele, but was powerless to act for her minor wards, and therefore prayed a family meeting. Such family meeting was thereupon ordered, but its deliberations are not shown in the record, if any were had..
    But if these petitions declare or admit anything adverse to the rights sued for in this case, they were only by attorneys at law, and not attorneys in fact. 0. 0. Art. 2270, and are mot by the oath of the plaintiff, that they were unauthorized. And the record shows her prompt change of counsel, and her plea of the 9lh of October, 1852, denying and resisting all grounds of partition.

      Shaw and JS. A. Bradford, for defendants:
    The plaintiff alleges, that the property which is the subject of this suit, having been purchased by her husband during the marriage, belonged to the community which she pretends existed between them, and that consequently, upon the dissolution of the community by the decease of II. L. Connor, her husband, the one-half of that property became absolutely hers; that, by "reason of the intestacy of the deceased husband, the plaintiff as widow in community, is entitled to the usufruct of the other half of said property; that certain slaves, bought after the decease of H. L. Connor and paid for out of the revenues of the Louisiana property, belong to her; that she has inherited from her deceased daughter Anna, one-fourth of her distributive share as heir of said IT. L. Connor ; that the succession of U. L. Connor is indebted to her in about the sum of §7,000, for her paraphernal property; that she is entitled to claim commissions as tutrix to the heirs of AT. L. Connor; and that she is entitled to claim the marital portion because of her being left in necessitous circumstances.
    In a supplementary petition, she sots up that a public sale of the property had been made under a decree of partition ; and that by reason of a private sale of their shares, made by three of the heirs, and the public sale having been made at the courthouse of the parish and not on the plantation, the property was sacrificed ; the purchaser was made a party, and she prays to annul the sale and recover the property, &c.

      The answers deny every proposition of the plaintiff except her claim to the inheritance from her deceased daughter.
    On behalf of the defence, we propose now to consider the pretensions of the plaintiff in the following order:
    1st. As to the existence of the pretended community.
    The evidence of the plaintiff’s own statements show clearly, that Henry L. Gonnor previously to, at the time of, and subsequently to his marriage with plaintiff, was a resident of the State of Mississippi; that the marriage was celebrated at the house of her sister in that State, and that they continued to reside in that State up to the time of the husband’s decease. That immediately after his marriage the husband went on to establish his home aud enlarge his property in Mississippi.
    Under this state of facts, we contend that the community did not exist, and that the property purchased in Louisiana by H. L. Gonnor was bis separate property, andas such upon his decease intestate, descended to his heirs. Wo refer to Louisiana Code, Art. 2370, and to a few decisions of this Court in support of our position. 9 Rob. 443; 2 An. 257, 344, 436.
    Much stress seems to be laid on an alleged intention to make the matrimonial domicil in the State of Louisiana.' But whatever may have been the idle talk on this subject, there is not shown any act of Mr. Gonnor indicating any such intention; but all his acts show the contrary. But, wore it otherwise, intention without actual performance will not avail in the change and establishment of domicil. TheJ parties must have actually removed to and established their residence in this State in order to create the community, which, even then, would only regulate property, subsequently acquired. 9 Rob. 224; 2 An. 775; 4 An. 469.
    As to the incapacity of the plaintiff to give a valid consent to the marriage, it is not desired to say anything about it; it is supposed that she was legally married and must abide all its consequence.
    As to the argument professed to be based on the 2d Sec. 4th Art. of the U. S. Constitution, we contend that it has no application to the question now under consideration, and do not consider that the provision quoted, in any manner interferes with the provisions of the Article of the Code and the uniform construction of it by this Court. We contend therefore that the plaintiff’s pretension in this respect must be rejected.
    2nd and 3d. With the fall of the community, must also fall the claim for’ usufruct of the other half of the property, and to slaves bought after the decease of H. I. Gonnor.

    4th. As to plaintiff’s inheritance from her deceased daughter, Anna; the defendants are not in possession of it, nor have they been so ; nor do they prefer any claim to it; nor have they ever denied or interferred with plaintiff’s claim to it, and we cannot see, therefore, what right she has to demand it of defendants.
    5th. As to plaintiff’s claim on the succession of her husband for her so called paraphernal rights.
    She alleges, that her husband, during the marriage, received certain moneys belonging to her in Louisiana, and that he invested them in property in Mississippi, which was his separate property. The matrimonial domicil was in the State of Mississippi, which is undisputed, the Common Law prevails in that Stat.e, and by that Law the personal effects of the wife, upon being reduced into possession by the husband, become his absolutely. Personal property is governed by the laws of the domicil of the owner and without regard to its actual location. This money therefore when received by the husband, became his property, absolutely '■'■¡¡we mariti,” and consequently the wife has no claim on the succession here for it. 2 An. 980.
    6th. As to the claim for commissions as tutrix; she has not rendered any account of her tutorship, and has not shown that she administered any property of her wards, and certainly not how much, so that such allowance could be made ; she surely cannot be entitled to commissions, at least as yet.
    7th. As to the claim for the marital portion.
    The deceased II. L. Conner, husband of the plaintiff, left an estate in Louisiana, appraised at $58,456 75c. and five heirs, daughters .of himseif and plaintiff.
    The plaintiffhorself shows, that for her dower she was assigned a life estate in 370 acres of land in the slate of Mississippi; and slaves and personal effects, in fee, to the amount of $10,163 38, Record, p. 114. Also that she was supported at the expense of the estate (luring the year of mourning. Deeds to be found, pp. 184 to 188, &e. show that, soon after the death of her husband, the plaintiff gave $3,000 cash for one piece of property, $15,000 for another piece and $3,200 on a credit for more. In her supplemental petition, p. 20, she says that from her own means she furnished a part or all of the support of her minor children, and partially the supplies of the plantation in Tensas parish.
    The deceased, Mr. Conner, was a man of fortune, but not very large, he lived as a prudent and liberal country gentlemen, by no means extravagant, he had five daughters, several of them of marriageable age, previous to his decease, and the style of living he was accustomed to under these circumstances would be necessarily more expensive than would be that of his widow. She could live in the same coinfort and style on a much less income, as she had not to support her children ; their expenses were properly chargeable to, and to be paid out of their own means. The plaintiff had nobody to support but herself. She says that she supported her minor children, and partially supplied the plantation in Louisiana. Can she then be considered to have been in necessitous circumstances, as an American Republican Widow !
    We contend therefore, that she shows fto claim whatever to the marital portion.

    And last, as to the matter set up in the supplemental petition ; we contend that any heir or co-proprietor, being legally capable of acting for himself, has the right to sell his inheritance or share in the undivided property, at private sale, if he choose, and the co-heirs or co-proprietors have no right to object to it. Besides, this private agreement made, the property brings more than it would have done without it, and although it resulted a little unfortunately to the private vendors, it resulted very much to the advantage of their co-propiie-tors, by an increase of the price of the property to at least $20,000.
   Slidell, C. J.

In the settlement of the estate of the deceased, H. L. Connor, a controversy has arisen between his widow and his children. It is one of those family disputes with which our judicial annals so painfully abound, and which seem a necessary and unamiable consequence of our peculiar laws on the subject of the conjugal relations and of inheritance. In the perusal of this voluminous record the suggestion constantly recurs to the disinterested mind how much better it would have been if these parties had arranged their conflicting pretensions in a spirit of filial and parental affection. As they have chosen to pursue a different course, we are to apply the rules of law in the distribution of the estate.

Mr. Connm• was a native and resident of Mississippi. Ho lived and died in that State. In 1824 he became affianced to the plaintiff, Susan E. Balcer, a minor, residing in Louisiana, and under the guardianship of her tutor, Alexander Pm'ler, a resident of Louisiana. After completing her education at the North, she was placed on her return to Louisiana in the family and under the care of her sister, Mrs. Ker, a resident of the parish of Concordia, in this State. The consent of her tutor was given in these words:

“I, Alexander Porter, jr., of the city of New Orleans, duly appointed tutor by the Court of Probates in the parish of St. Mary, Attakapas, in the State of Louisiana, to Susan Balcer, minor, daughter of the late Joshua Balcer, deceased, do in my quality aforesaid, by these presents, consent that the rites of matrimony be solemnized between Henry L. Conner, of Adams county, in the State of Mississippi, and the said Susan Balcer; and I sign these presents, and affix my seal thereto, in the eity of New Orleans, this 4th day of May, 1824, in order that the same may serve in time and place.

[l. s.] Alexander Porter, Jr.”

It was intended that the marriage should be solemnized at the house of Mrs. Ker, but in consequence of the overflow of the Mississippi at the time, it was found inconvenient for their Mississippi friends and the Mississippi magistrate, Judge 'Winston, to reach Mrs. Ker’s house in Concordia, and the place of solemnization was changed to the house of another sister in Mississippi. Immediately after the marriage in May, 1824, they went to live at Oak Hill, in Adams county, Mississippi, the residence of Mr. Connor's' mother. Here they continued to live until Mr. Connor’s landed estate in that county, owned at the time of his marriage, was increased hy the acquisition of lands there, inherited hy his brother. He erected upon this estate a commodious dwelling, embelished it with an extensive garden and ornamental grounds, and lived, until his death, at this seat, which he called Berkley, in a style of comfort and elegance. The slaves and other personalty of his Mississippi estate amounted at his death to about $61,000, and Berkley was a tract of about 1200 acres.

In 1841 he purchased a valuable plantation in the parish of Concordia, which was kept in successful cultivation until his death, and was then inventoried, with its slaves, etc., at $58,456 75. A very comfortable dwelling-house was built upon this plantation, and occasionally the husband and wife visited the place, and tarried for some time upon such visits, Berkley, however, always remaining their home, and Mississippi their domicil. There is evidence that he occasionally spoke, after his marriage, of an idea of going to Louisiana to live. One witness not only says she had often heard him speak about going to Louisiana to live, but that he contemplated at the time of his marriage a removal to the State of Louisiana. But upon a fair review of all the testimony upon this subject in connection with the surrounding circumstances, and especially the continuous and consistent acts of the parties, which speak more forcibly than casual words, wo are satisfied that there was not in the mind of Connor, at the time of the marriage, or subsequently, a settled purpose to live in Louisiana, much less any ante-nuptial understanding that such should be the base, and it is certain that his vague views as to a change of domicil never even approached a realization. Mississippi must unquestionably be.eonsidered not only the matrimonial domicil, hut the matrimonial domicil contemplated at the time of the marriage.

It further appears that after the marriage,'and after Mrs. Connor had taken up her abode in Mississippi, the husband and wife received from Judge Porter $4452 24, being the amount of her patrimony in her tutor’s hands, which sum the husband converted to his own use. The wife has participated in the distribution of the Mississippi estate, and occupies the Berkley mansion under the assignment of dower, hut with means incompetent to sustain the establishment in its former style, or to live otherwise in the comfort and luxury to which she was habituated before widowhood.

I. The most important inquiry in this cause is whether the claim by the wife of one-half of the Louisiana estate, as widow in community, is well founded.

The proposition is advanced upon the ground that, hy the Code of 1808, which was in force at the time of entering into wedlock, every marriage contracted in the territory of Louisiana superinduced of right, partnership or community of acquets or gains, such being the express provision of article 8 of section 4 of ’ that Code; that although in this case the marriage was actually celebrated in Mississippi, she was a Louisiana ward, and was constructively and de jure married in Louisiana; that it was the ante-nuptial intention of the spouses to make Louisiana their residence, and mere accident, and the post-nuptial purpose of her husband, made Mississippi their actual residence; hut to which act petitioner, then a minor, and without disposing will, could give no assent. These grounds, it is argued, are set forth in the petition and sustained by the evidence.

In these views of the law and facts we do not concur.

It is true that an accident changed the mere place of solemnization from Louisiana to Mississippi. But that this change was made against the wish of the tutor does not appear, and cannot reasonably be inferred. It is impossible to infer from the evidence in the cause that the house of Mrs. Ker, in Concordia, was originally selected, or the house of Mrs. Metcalf, in Mississippi, subsequently adopted as the place of marriage, with reference to any question of property or marital right. The choice in both cases seems to have been suggested by mere considerations of convenience and decorum. The language of the tutor’s consent indicates no restrictions to Louisiana as the place of celebration, and does contain matter suggestive of the inference that no such restriction was intended. Under the then existing laws and jurisprudence of the State of Louisiana, this marriage would have been considered a Mississippi marriage, even if an accident had not prevented its solemnization in Louisiana, in Ford's case, decided while the Code of 1808 and the Spanish laws were still in force, the question was whether the slaves of the wife, who was married in Mississippi, passed to her husband by the laws of that State, or remained her paraphernal property by virtue of the law of Louisiana, which, was contemplated at the time as the matrimonial domicil, and within a reasonable time became so actually. Martin J., as the organ of the court, solves the question thus:

“We think that it may safely be laid down as a principle that the matrimonial rights of a wife, who, as in the present case, marries with the intention of an instant removal, for residence in another State, are to be regulated by the laws of her intended domicil, when no marriage contract is made, or one without any provision in this respect.”

The existence of this jurisprudence certainly loses none of its significance as a fact in this cause, when it is considered that Alexander Porter, the tutor, who authorized his ward to marry a gentleman domiciled in Mississippi, was an eminent member of the judiciary of Louisiana, and as such concurred in the opinion in Ford’s case.

As to the ante-nuptial intention of the parties respecting the matrimonial domicil, there is no reasonable ground to say that Louisiana was contemplated. The weight of evidence, as we have already remarked, is entirely opposed to such a conclusion.

We find no fair analogy as to facts between this case and the case of the minor Le Breton; and the doctrine there enunciated clbariy militates against the present plaintiff.

Alexandrine Le Breton, a minor, thirteen years of age, without the consent of her mothor, fled from New Orleans with her lover to Natchez, with the intention, as the Court inferred from the evidence, to be married there and return to New Orleans as soon as it could conveniently be done. They remained a few weeks in a tavern at Natchez, and soon after returned to New Orleans, where they continued to reside until the wife’s death. The husband claimed to have become owner of his wife’s chattels jure mariti under the law of Mississippi; but his pretensions were rejected, and one of the grounds for the conclusion was that although the marriage took place in Mississippi, Louisiana was the contemplated matrimonial domicil; another was that the carrying the minor out of the State, without the consent of the mother, was in frauden, legis, and a marriage contracted under such circumstances in another State did not defeat the action of the law of Louisiana on the wife’s property received by the husband here.

The Spanish laws do not enter into the consideration of the case, haring-been abrogated before the acquisition of the Louisiana estate; and the claim of the wife derives no support from the Oode of 1825. It declares that every marriage contracted in this State superinduces, of right, partnership or community of acquets and gains, if there be no stipulation to the contrary. A marriage contracted out of this State, between persons who afterwards come here to live, is also subjected to the community of acquets, with respect to such property as is acquired after their arrival. Articles 2869, 2370. The present marriage was not contracted in this State nor in contemplation of a matrimonial domicil in this State, nor did the parties or either of them come here to live before the acquisition of the Louisiana property.

Under the well settled interpretation of the Oode of 1825, applied to the facts of this case, Mrs. Oonnor was not a partner in community. Succession of Packwood, 4 Rob. 438. Huff v. Bolard, 6 Ann. 437. Succession of Franklin, 7 Ann. 395. We speak now of a case arising before the xict of 1852, by which Act the legislature, dissatisfied with the existing law, extended the community of acquets and gains in favor of non-resident married persons to property in this State thereafter acquired, p. 200.

Lastly, the plaintiff insists she is protected by Section 2, of Article 4th of the Constitution of the United States, which ordains that “ the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” The plaintiff’s position, as defined by the counsel in his written argument, is “ that a Mississippi wife, widow or heir, in regard to real property in Louisiana is entitled by constitutional privilege to the same rights as a Louisiana wife, widow or heir, in like relation to the same property.” Limiting our answer to so much of the proposition, as pertains to the question of community, we are of opinion that the provisions of the Oode of 1808 and 1825 on the subject of community do not conflict with the Constitution of the United States. They say, to all who chose to marry in this State, bo they citizens of this State or of other States, your marriage in this State shall superinduce, of right, a partnership or community of acquets or gains, if you make no stipulation to the contrary, when you make the contract of marriage in this State, the law in your silence implies the partnership as an incident of your contract. So again the law says to all persons married elsewhere, be they citizens of Louisiana or citizens of other States, if you choose, after marriage to come to Louisiana to live, your acquisitions in Louisiana (at least in the absence of your previous marriage agreement to the contrary,) will be deemed as made subject to the community of acquets. In neither case do we discover an unconstitutional discrimination between our own citizens and citizens of other States of the Union.

TI. With the failure of the claim of community, the claim of usufruct of the Louisiana property after the husband’s death also fails.

III. The claim of §6952 24-100; amount of alleged paraphernal funds received by the husband cannot be sustained. The marriage took place in Mississippi, the husband was then domiciled .there, that State became and remained the matrimonial domicil, and there was no clear ante-nuptial nor post-nuptial understanding that the parties should come to Louisiana to reside, the frustration of which might perhaps be regarded as a fraud on the wife.

The law of Mississippi must therefore control the wife’s rights.

Under that law her personalty, reduced into possession by the husband, became his jure ma/riti. See Hayden v. Nutt, 4 Ann. 68. Marcenaro v. Butoli, 2 Ann. 980.

IV. The plaintiff claims the marital portion, in case her claims for community and paraphernal rights are disallowed. The doctrine is not disputed that this right to the marital portion in real estate situate in Louisiana results from the marriage, no matter where contracted, and that the wife takes by inheritance. But the claim is opposed on the ground that Mrs. Connor was not left in necessitous circumstances.

The Article 2859 of our Code which confers the right is in these words :

“ When the wife has not brought any dowry, or when what she has brought as a dowry is inconsiderable with respect to the condition of the husband, if either the husband or the wife die rich, leaving the survivor in necessitous circumstances, the latter has a right to take out of the succession of the deceased what is called the marital portion, that is, the fourth of the succession in full property if there be no children, and the same portion in usufruct only, when there are but three ora smaller number of children, and if there be more than three children, the surviving, whether husband or wife, shall receive only a child’s share in usufruct, and he is bound to include in this portion what has been left him as a legacy by the husband or wife, who died first.”

In the present case the wife brought no dowry, and her little patrimony was, as we have seen, received by her husband, became his jure ma/riti, and was converted to his own use. We have also seen that she is excluded from the community of acquets, and so far as the evidence informs us, although she had a modest patrimony before marriage, she was, as to any. means of her own, penniless at his death; and her husband having omitted to make provision for her by will, which it seems it was his intention to do on a scale commensurate with his affection and her meritorious conduct, she had nothing for her future support, save what the laws of Mississippi and Louisiana would accord to her. In this view of the case and as to any means of her own, she was unquestionably left at her husband’s death in necessitous circumstances.

Foster v. Ferguson, 1 Ann. 263, was a case analogous in its circumstances, so far as the immediate point before us is involved. The marriage was contracted in Mississippi, and although made with the view of a residence in Louisiana, yet in consequence of the early death of the husband, and his fortune having been acquired before marriage, she seems to have taken nothing as partner in community. Under the laws of Mississippi she had received as dower an usufruct in one half of his real estate, and also in full property one half of the nett personalty, which were not however sufficient for her maintenance. The District Court had awarded the widow one fourth of the estimated value of the deceased estate in Louisiana, deducting the estimated value of her Mississippi dower. The Supreme Court reversed the judgment in this respect, and gave the widow one fourth of the succession of the husband loft in this State 11 independent of the rights which she had acquired in the estate in Mississippi.” It is true this is tho only decision upon the point cited from our reports, and it is also true that the grounds of the conclusion are not fully elaborated. It is a precedent, however, and as such should be followed, even though solitary, unless we are clearly satisfied thatits doctrines are unsound. Of this wo are by no means satisfied ; and on the contrary we think it will bear the test of an analysis upon principles of justice and common sense. If instead of being situate in different countries, the whole of Foster's estate had been in Louisiana, it is clear that the marital fourth would have been assigned upon the whole estate. But a part happened to be in Mississippi, and had been subjected to a Mississippi distribution, which assigned to the widow a share which the law of that State deemed equitable and just. By maintaining the marital portion without reduction in the Louisiana estimate, the widow received an equitable share in her husband’s whole estate, and no more. By reducing it the spirit of both statutes would have been violated ; for the spirit of each was that a provision for the widow’s support proportionate to the husband’s fortune and condition in life should bo made out of his estates.

It was however argued on behalf of the heirs that in ascertaining whether Mrs. Oonnor was in necessitous circumstances, the state of her means at a time subsequent to her husband’s death, could be considered, and that by reference to certain deeds of sale made to her about two years after her husband’s death, it will be seen that she made large purchases, for which she paid an important portion in cash, a state of things inconsistent with penury. These purchases she made from her children of their interest in the homestead estate and the slaves which, during her husband’s life time, had been employed upon it. A portion of this homestead estate had been already set apart to her in dower, which included the family dwelling; and from this consideration, as well as in fulfilment of a wish of the husband repeatedly expressed in conversation, but unfortunately for her, not consecrated by a will, that she should pass the remainder of her days in the enjoyment of the estate where they had spent their married life in comfort and luxury, it was natural she should desire to extend her interest in the homestead ; and it may well have been that some of the influential and wealthy friends of her husband and herself, by whom she was surrounded, may have assisted her in raising cash means. But even if these cash means were the result of her industry, thrift or good fortune subsequent to her husband’s death (for it seems clear that she had no fortune of her own when ho died), we apprehend that subsequent prosperity and easy circumstances are not a tost contemplated in our Code. It is true, an authority cited from a Erench commentator seems to counterbalance the doctrine asserted by the children. Merlin in his Repertoire, verbo Quarto do Conjointe Pauvre, puts the question whether in determining the widow’s right, the state of her fortune and the precise time of her husband’s death should be considered. He does not seem to announce his own opinion, but says that Dumoulin and Le-brun make a distinction between the case where the wife’s change of fortune has followed closely on the death-of the husband or has supervened a long time afterwards, and say that in the latter case, things must be loft as they are. The language of our Code seems to point very distinctly to the state of things at the date of the death- — “if either the husband or the wife die rich, leming the survivor in necessitous circumstances.” Moreover the doctrine which looks to the posterior state of things seems out of harmony with the analogies of the Code and a sound legal philosophy. It is not the general policy of the law to leave rights either in abeyance or determination upon future accident. "We prefer the intepretation of Gregorio Lopez in commenting upon a kindred provision of the Spanish law. We refer to the Olh Partida, tit. 13, law T: “Men are sometimes content to marry women who are poor and without a dowry ; it is therefore but just and proper, that since they loved and honored them through life, they should not leave them destitute at their death. ’The ancient sages have therefore thought fit to ordain, that if the husband should not leave such wife the moans of living well and decorously, and she should not have possessed such means of her own, (nin ella lo ouiesse de lo suyo,) then she may inherit one fourth of his estate, notwithstanding ho should have children ; but such fourth part ought not to exceed one hundred pounds in gold, however great may be the estate of the deceased. But if such wife should have possessed (ouiesse do lo suyo) the means of her own of living decorously, then she has no demand on the estate of her husband on account of such fourth part.”

Upon this Lopez remarks: Item cum hie chicit nin ella lo ouiesse de lo suyo, intelligitur tempore mortis mariti, quia qualitas adjecta verbo intelligitur secun-dum tempus verbi. Unde licet postea efficiatur dives, non excludetur ab ista quarta et ejus petitione, ut tenet idem decius in diet, authent. praeterca, in fin, reprens se ita con su luisse, et pater ejus consilio 24. In the same note, he justly .states that the spirit of the law is not to exclude the wife if by the labor of her own hands she could earn a subsistence, and that the law looks to the condition in life, its comforts and luxuries, which she had enjoyed during marriage. Ista quarta datur in honorem preetuiti matrimonii, ut conservenlur con-juges in solito status.

Y. The claim for commissions as natural tutrix cannot be disposed of at present, no account of the tutorship having been yet rendered, and moreover, it not appearing what property she actually administered, &c.

VI. She is entitled to be recognized as inheriting one-fourth of the share of her deceased daughter, Anna, in the Louisiana succession.

YII. We do not think the plaintiff has shown any injury sustained by the sale of the property to George B. Mwrshall. There is on the contrary respectable testimony tending to the conclusion that the price of adjudication was enhanced by the private agreement made between the purchaser and a portion of the heirs.

The plea of res judicata is not relied upon in the points and brief of the appellees, and we have not therefore discussed it.

It is therefore decreed that the judgment of the District Court be reversed, and it is further decreed :

I. That the plaintiff’s claim of community and of usufruct as surviving spouse in alleged community, and for paraphernal rights, be rejected.

II. That the plaintiff’s claim for commissions as natural tutrix be reserved.

III. That she be recognized as the heir of her deceased child Anna F. Con-nor, for one fourth of the said child’s share in the Louisiana succession of the said Henry L. Connor, deceased.

IV. That her claim for the marital portion of the Louisiana succession of her deceased husband, Henry L. Connor, to wit the usufruct of one sixth, he and is hereby sustained, the same to be adjusted by future proceedings therein.

V. That the claim to annul the adjudication of the Arcóle plantation, slaves and appurtenances to George B. Marshall, be rejected.

VI. That the price of sale of the said Arcóle Plantation, slaves and appurtenances, at which it was adjudicated to said Marshall $135,050, be considered as representing the estate in Louisiana as left by the deceased, subject to a reasonable deduction for the value of the slaves added thereto and improvements made since the death of the said Henry L. Connor, and existing at the date of adjudication to said George B. Marshall.

Notk. — rThis case lias been taken to the Supreme Court of the United States by writ of error.

YII. That this cause he remanded for the purpose of effecting a final settlement of accounts, a partition and further proceedings according' to law, the costs of the appeal to be paid by the defendants.

Re-hearing refused.


author: Spofford, J.

text:
    The State v. Brien.
    Where the object of the prisoner’s counsel dic( not seem to be to except to the Judge's charge or to procure different or additional charge* but to make counter explanations and objections in the hearing of the jury, after the cause was submitted to them. X£el&: that the Court did not err in refusing such explanations and objections to be made.
    In trials for murder or manslaughter the violent and quarrelsome character- and disposition of the deceased cannot be given in evidence.
    from the First District Court of New Orleans, Robertson, J.
    Morse, (Attorney General) for State.

      Ogden & Zeovy, for the accused and appellant.
   Spofford, J.

The defendant was convicted of inanslaúghter and sentenced to imprisonment at hard labor for seven years.

Having appealed to this Court he relies upon two bills of exceptions to procure a reversal of the judgment..

1st. The prisoner complains that the Judge refused to permit his counsel to state his objection to the charge and except to the same in presence of the jury, after they had risen from their seats, but before they had withdrawn. The Judge states that the counsel did notask any additional charge, hut wished to state objections in the hearing of the jury after the case had been submitted to them by the court.

Under this state of facts, we do not perceive that the court erred to the prejudice of the prisoner. The counsel tendered no bill of exceptions containing the points of the charge which he thought ohjectionable, and the object seems to have been not to procure any different or additional charge, but to make counter explanations and objections in the hearing of the jury after the cause was submitted to them. As we are not informed of any particulars wherein the judge’s charge was thought to be erroneous, we cannot presume that it was so. If it was not, the prisoner suffered no injury. The counsel did not ask to have the charge reduced to writing.

2d. Evidence was offered to show that the deceased was a man of intemperate habits, and of violent and quarrelsome character and disposition, and that he had been turned away from the Seamans’s Home, on two different occasions, on account of violent and' quarrelsome conduct whilst under the influence of liquor, and that when he got sober he returned and apologized and begged to be re-admitted, and was re-admitted on his promise of better conduct. The prisoner, admitting the general rule that in trials for murder or manslaughter evidence of the bad character of the deceased is inadmissible; contended that in the present case the'ovidence bore directly upon the question whether the prisoner.had given the blow wantonly or maliciously, and without justification or excuse, or had given it in self-defence, and to repel a violent and dangerous assault upon his person by the deceased.

We have been referred to no authority for considering this an exception to the general rule, and wo find tho evidence, under the facts stated in the bill, to be open to all the objections to which such evidence is generally liable. 1 Wharton’s Criminal Law, 172. State v. Chandler, 5 An. 489. State v. D'Angelo, 9 An. 48.

The judgment is affirmed with costs.


author: Ogden, J.

text:
    City of New Orleans v. J. Solomon.
    I'he Act of the Legislature of the 18th of March, 1850, creating a distinction between urban and rural property, in preparing the budget of receipts and expenditures of the city of New Orleans, is repealed by the Consolidation Act of 1852.
    from the Fifth District Court of New Orleans, Augustin, J.

      Eeisland, Assistant City Attorney, for the plaintiff.

      Laville, for defendant and appellant,
   Ogden, J.

(Slidell, O. J., absent.)

This is a suit to recover taxes which the defendant resists, on the ground that none oí tho formalities required by the Act of the Legislature of I860, have been complied with.

The ease of the City of New Orleans v. Phillips, 9 An. 45, is relied on to support the defence. The decision in that case, related to a tax for the year 1850, and was governed by the Act of tho Legislature of the 18th of March, 1850, which required that the council of each municipality should every year before any tax, fix and determine by ordinance, the limit between tho urban and the rural parts of tho municipality, and that before fixing the amount of the tax to be assessed, they should cause to be made out a budget or estimate of expenditures for the urban part, and another like estimate or budget for tho rural part for tho current year, to he published in English and French, &o. The question presented is, whether the powers of that act remained in force after the Act of Consolidation was passed in 1852. Tho 19th section of this Act, entitled an Act to Consolidate the City of New Orleans, and to provide for the government and administration of its affairs, provides, that whenever a vole shall be taken in either board upon the passage of an ordinance to lay any tax, such ordinance shall be published before being acted on by the other board, except in certain cases. The 29th section prescribes the duties of the Comptroller, and directs that he shall publish annually a report containing, among other things, an estimate of the receipts and expenditures of the current year, and, in general, all such matter in connection with the fiscal affairs of the city as tho Comptroller may consider of public interest. The distinction between urban and rural property is entirely omitted in this act. We think its provisions in relation to the manner of preparing and publishing the budget of receipts and expenditures of the city and establishing the formalities to precede taxation, cannot be reconciled with the requirements of the Act of 1860, and that the provisions of this latter act on that subject are therefore repealed.

The judgment of the court-below is therefore affirmed, with costs.


author: Buchanan, J.

text:
    Priestly & Bein v. T. Shaughnessy et al.
    A defendant who acquiesces in a judgment, cannot appeal from it.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Hart, for plaintiffs.

      Simons, for appellant.

      Race & Foster, and others, for intervenors.
   Buchanan, J.

(Slidell, 0. J. and Ogden, J., absent.)

Plaintiffs instituted suit, in the via exeeuliva, as holders of a note of defendant, secured by mortgage upon a slave, which was sold by the Sheriff. Various other holders of special and general mortgages, claimed the proceeds. Among these was Timothy Shaughnessy, who filed a third opposition, alleging that plaintiffs’ mortgage was simulated, and various other grounds of preference in himself over the plaintiffs. The latter excepted, that the question of simulation could not be raised in form of a rule. This exception was sustained by the District Court in a judgment dated the 18th of March, 1834. This judgment reserved the right to Shaughnessy to take another rule, on grounds not touching the invalidity of said mortgage.

Shaughnessy acquiesced in this judgment by filing another opposition, by motion made on the 22d of March, 1854, on grounds other than the invalidity of the mortgage. These grounds were :

1st. That the mortgage notes held by plaintiffs and by two intervenors, named Thompson and Batson, were not taken by the holders in the usual course of business.

2d. That the holders of said notes did not derive their title from the mortgagee, but received them from the mortgagor.

3d. That the holders did not pay value for said notes, but received them as collateral security for the debts, much less in amount than the face of the notes received.

4th. That the notes were extinguished before coming into possession of these holders.

5th. That Thompson, the intervenor, is not owner of the five notes hold by him.

The plaintiffs and the intervenor Batson, took the same exception to this rule, which had been taken to the former one; and also pleaded the exception of res judicata, founded upon a certain suit, entitled Paul Lacroix v. C. M. Fogg, in which a judgment had been rendered.

These exceptions were sustained by the court, and the rule dismissed, on the the 6th of April, 1854.

The third opponent appealed on the 16th of March, 1855, from both the judgments of dismissal as above.

We are of opinion that his acquiescence in the judgment rendered on the 18th of March, 1854, has precluded Shaughnessy from the right of appealing from that judgment, which ho has voluntarily executed, by availing himself, as stated in his second rule, of the right reserved to him in the-first judgment. O. P. 567. The question of the simulation of the mortgage, and the proper mode of pleading such simulation, is not therefore before us.

Confining ourselves to the issue made upon the rule of the 22d of March, 1854, it appears to us that the Judge of the District Court erred in dismissing that rule upon the exceptions filed. The first of those exceptions, which was a repetition of the exception taken to the former rule, was indeed without application to the second rule; for as the latter did not assert the nullity or invalidity of the mortgage, there could properly be no question therein of the legal mode of pleading nullity or invalidity. The other exception res judicata, does not appear to be supported by the evidence.

Shaughnemj, against whom the judgment in the case of Lacroix v. Fogg, was pleaded in bar, was not a party to that suit.

It is therefore adjudged and decreed, that the judgment of the District Court rendered on the 6th of April, 1854, be reversed; that the exceptions filed by the appellees on the Cth of April, 1854, to the third opposition of the appellant, be overruled, and the cause remanded for further proceedings according to law; and that the appellees pay the costs of appeal in both courts.