author: Breaux, J. Watkins, J.

text:
    No. 11,087.
    The State of Louisiana vs. Michael Walsh et als.
    1. The requirements to the entry of an order on the minutes, under Actl38 of 1877, are satisfied when the entry is made under the direction of the trial court, by the minute clerk, and the minutes are approved and signed by the judge.
    2. The purpose being to lead the mind of the witness to the subject of the inquiry, the question is not leading in the legal sense of the word.
    3. Proving the impulsive exclamations of third parties at the time of finding inculpatory testimony, a short time after the homicide, does not warrant the setting aside of the verdict. The defendant subsequently admitted all that was proven.
    4. The latitude of a cross-examination will not be extended so as to allow the accused to introduce testimony without his having laid the foundation required' by the rules of evidence.
    5. Evidence of threats by deceased, not communicated to accused, is not admissible; the proof being, as stated by the trial judge, that the conflict was provoked by the accused.
    6. An accused who testifies in his behalf is subject to the same duties, liabilities and prerogatives as other witnesses; he may be examined, cross-examined, impeached, corroborated. The testimony shall be weighed and considered according to the general rules of evidence, and the trial judge shall so instruct the jury.
    7. A new trial will not be granted on the ground of misdirection unless the jury was misled.

      APPEAL from the Criminal District Court for the Parish of Orleans. * Moise, J.

      M*J. Cunningham, Attorney: General, and Lionel Adams, Assistant District Attorney, for the State, Appellee:
    1. The requirements of Act No. 138 (E. S.) of 1877, that the judge shall enter an order upon the minutes directing the criminal sheriff, whenever in the opinion of the judge, in a case fixed for trial, talesmen will be required to draw such number of jurors as in the opinion of the court may be necessary to complete the jury, is fully satisfied when the order is entered on the minutes, under the direction of the presiding judge, by the minute clerk, and the minutes are approved and signed by the judge. Century Diet., p. 1496; 1 Bouvier Law Diet. 592; 1 Rap. and Law, Law Diet., p. 446; And. Law Diet., p. 405; 6 Am. and Eng. Ency. of Law, p. 469; And. Law Diet., p. 679; 15 Am. and Eng. Ency. of Law, p. 618; Act 30 of 1880.
    2. No defect or irregularity in the drawing and summoning of grand or petit jurors shall be sufficient cause to challenge the array unless it is made to appear that some fraud has been practised, or some great wrong committed that will work great and irreparable injury. Acts of 1873, p. 168; Act 44 of 1877, Sec. 11; 26 An. 579; 31 An. 91; 32 An. 34; 33 An. 1362; lb. 1414; 34 An. 119; 35 An. 1098; 37 An. 376; 38 An. 459.
    3. In order to bring a witness as soon as possible to the material points on which he is to speak, examining counsel may recapitulate to him the acknowledged facts of the case which had already been established. 1 Greenl. Ev., Sec. 434; Í Tayl., Secs. 1196,1454.
    4. It is a well settled and universal rule of practice that a conviction will not be set aside and a new trial granted merely because of immaterial or harmless errors, which could not have prejudiced the accused in any way. Whart. Or. P. and J?., Sec. 793; 1 Bish. Or. Pr., Sees., 1275,1277; 3 Gra. and Wat. N. T., p. 826; 9 Am. and Eng. Ency. Law, p. 755; 11 An. 480; 16 An. 384; 30 An. 1171; 35 An. 970.
    5. It is not error of sufficient importance to warrant the interference of the revisory tribunal, that the trial court permitted a question to be propounded, notwithstanding objection thereto, which was intended to elicit statements made by third parties at the time of the finding of inculpatory evidence, when the answer of the witness was that he heard no such statement.
    Nor when the fact sought to be established is afterward admitted to be true.
    6. Evidence of previous threats is inadmissible unless a proper foundation is first laid by proof of some overt act or hostile demonstration made by the deceased at the time of the fatal encounter. Whart. Or. Ev., Secs. 657, 757.; 2 Bish. Or. Pr., See. 627; 9 Am. and Eng. Ency. of Law, p. 674; 37 An. 443; lb. 490; Ib.640; 38 An. 20; 36 An. 671; 48 lb. 86; An. 617; 42 An. 754; lb. 939; 43 An, 841; 44 An. 161.
    7. Where the proof is that the conflict was provoked by the accused, who were the fiist assailants and commenced the attack with dangerous weapons at a time when they were in no danger, either actual or impending, evidence of threats, whether communicated or uncommunicated, is not admissible. 37 An. 443; Id. 640; 38 An. 20; 39 An. 671; 41 An. 86; Id. 617; Id. 939; 43 An. 841; 44 An. 161.
    If admissible at all, such testimony can only be heard where the question as to who was the aggressor is left in doubt. 2 Bish. Or. Pr., Sec. 627; Whart. Or. Ev., Sec. 757; 9 Am. and Eng. Ency. of Law, p. 674; State vs. Jefferson, 43 An. 998.

      8. Where there is any evidence supporting a plea of self-defence the trial court is required to instruct the jury as to the principles of law which apply, and has no authority to pass upon the weight or value of the evidence which has gone to the jury.
    But there is a clas3 of cases to which a different rule applies, viz., those involving rulings of the judge in the course of the trial upon the admissibility of evidence, such as whether the proper foundation had been laid for evidence of character, threats, etc. In such cases, it is the necessary function of the judge, for the guidance of his own action, in a matter addressed exclusively to his own discretion, to determine whether the foundation has been laid, and, for that purpose, to consider and weigh the evidence in support thereof. I-Ience, it was held that, as the foundation must rest on proof of the antecedent conditions required, it is in the sound discretion of the judge to determine whether such proof has been made. State vs. Labuzan, 87 An. 491; State vs. Janvier, lb. 645; State vs. Ford, lb. 461.
    But when the evidence is closed and the case has gone to the jury, it is the latter’s exclusive province to consider all the evidence before it and to determine its weight and credibility; and it is the judge’s duty to charge the law applicable to any state of facts supported by evidence, whether he believes or attaches value to such evidence or not. State vs. Tucker, 38 An. 539, 540.
    9. The bill of exceptions must set out the facts to which a charge was pertinent, in order to show that instructions were asked, for that would have had a material bearing on the case, and that the trial court was not asked to charge the jury upon abstract principles of law. 35 An. 774; lb. 1048; 87 An. 77; lb. 576; 6 An. 286; 10 An. 264; 12 An. 679; 22 An. 425; 34 An. 1034; 3 Gra. and Wat. N. T. p. 17.
    10. A new trial will not be granted on the ground of misdirection, if the error does not affect the just result, and if substantial justice has been done. 95 Ant 974, 975; 6 An. 658; 2Thomp. Trials, Secs. 2401, 2402, 2403; 7 An. 284; 8 An. 116; 32 An. 621; 28 An. 170; 33 An. 391; 35 An. 1103.

      A. D. HenHques for Defendants and Appellants
    Whenever tales jurors are to be drawn in the parish of Orleans, the judge shall enteran order on the minutes, directing the criminal sheriff or one of his deputies to draw such number of tales jurors as in the opinion of the court may be necessary to complete the jury in the case on trial. Act No. 138, extra session of 1877, p. 209.
    To enter an order on the minutes as provided for in Act 138,1877, is meant, to set down in writing, to make a record of and not merely to announce, and is not synonymous with render. Am. and Eng. Ency. of Law, Yol. 6, verbo “Enter,” p. 649; see McLaughlin vs. Doherty, 54 Calif 519; Lockwood et als. vs. Dills, Admr., 74 Ind. 51.
    In the direct examination of a witness leading questions can not be asked — except when the witness appears hostile to the party producing him or is unwilling to give evidence. 1 Greenleaf on. Ev. (14th ed,), Yol. 1, Secs. 434, 435; 2 Taylor on Ev., Yol. 2, p. 1196, Sec. 1404; State vs. Tod Johnson, 29 An. 717; State vs. Farce, 37 An. 269.
    Under the guise of res gestee a narrative of past events made after the events are closed, by either the injured party or by bystanders, is not permitted. Wharton Crim. Ev.,Sec. 264; State vs, Melton, 37 An. 78; State vs. Williams, 34 An. 961.

      In the instant case, the evidence admitted (against the objection of the accused) was the declarations of third persons made after the transaction was at an end, outside the presence of the accused, at a distance of over a square from the place where the event, which resulted in death, had occurred, and after several hours had elapsed.
    In cross-examining the witness of the State, the accused must be allowed to ask any fact tending to establish his defence, whether it be or be not connected with the facts testified to in the examination in chief. State vs. Swayze,80 An. L323; State vs. Thomas, 32 An. 349; State vs. Wright, 40 An. 589.
    When there is a question as to whether the attack was made by the deceased or the accused in the fatal encounter, it is competent to show by prior declarations of either party that the attack was the one he intended to make. Wharton on Homicide, Secs. 694, 695; Stokes vs. People, 53 N. Y. 164; Wiggins vs. ’People, 93 U. S. (3 Otto) 465; State vs. Jefferson, 43 An.996.
    An accused can avail himself of the privilege of testifying, but can not be compelled to testify. Constitution of 1879, Art. 6; Acts of 1886, No. 29, p. 39.
    The State can not, under the guise of offering rebutting evidence, reinforce its testimony, proving matters not brought out by the defendants. Bishop Crim. Pro., Vol. 1, Sec. 1069.
    It is the duty of the courfto instruct the jury upon every phase of the case made by the evidence. When evidence is offered to prove a certain state of facts, and the claim is made that they are proved, the court should be requested so to do, charge the jury that the law is applicable to the facts claimed to be proved. State vs. Tucker, 38 An. 540. In all cases evidence of character is an item'of proof to be considered by the jury; it is entitled to the serious and honest consideration of the jury. It is from this evidence, as wen as from all the other evidence before them, that the jury are expected to form their final conclusion. State vs. Garic, 35 An. 970.
   The opinion of the court was delivered by

Breaux, J.

The defendants having been tried on the charge of murder, and convicted without capital punishment, were sentenced to suffer imprisonment at hard labor for life.

From the verdict and judgment they appealed.

Their grounds of complaint are set out in a challenge to the array of tales jurors, a motion for a new trial and fourteen bills of exceptions.

The motion for a new trial was tendered ex industria, for it reiterates the grounds reserved in the bills, and contains no other or different matter requiring the court’s consideration.

The court having issued an order to the criminal sheriff to draw the names of 150 talesmen from the jury wheel containing the tales-men drawn by the jury commissioners, and directing their summons, their counsel challenged the array of the said tales jurors on the grounds that there was no legal order issued for the summoning of the talesmen.; that there was no order written on the minutes of the court in the'manner required; that there was no legal drawing of talesmen; and that the said talesmen were drawn by the jury commissioners instead of the criminal sheriff, or one of his deputies.

The last ground, viz.: that there was no legal drawing, as the talesmen had been drawn from the jury wheel by the commissioners, and not by the criminal sheriff, has been amended and supplemented by the effect of the evidence admitted, and includes the additional objection that the deputy sheriff did not draw the names of the tales jurors from the jury wheel in the manner required by the statute on the subject.

The question is fairly presented by the admission of the assistant district attorney, that the entry on the minutes under date of September 27, 1892, directing the drawing by the criminal sheriff of tales jurors was written in the minute book by the minute clerk, under directions of the court, and not by the presiding judge with his own hand, but that after the minutes had been written containing the order, they were signed and approved by the trial judge before the list of jurors was called.

The deputy who drew the talesmen states that three jury commissioners and the witnesses, naming them, were present; that 250 names were placed in the wheel, from which he drew 150 names of tales jurors; that they were' drawn in a bunch; “ that he took the 150 names out at one and the same time.”

Entering Order upon the Minutes.

1. The objection made because the entry in the minute book of the order for the drawing of the talesmen was written by the clerk, and not by the trial judge with his own hand, is the first in the order of the questions presented.

Act No. 158 of 1877 provides: That whenever on the trial of any criminal case in the parish of Orleans, where the accused is charged with a felonious crime, the panel of jurors has been exhausted and the jury is not complete, or when in the opinion of the judge, in a case fixed for trial, talesmen will be required, the judge shall enter an order on the minutes, directing the criminal sheriff or one of his deputies to draw such number of tales jurors as, in the opinion of the court, may be necessary.

This, it is contended, can not be interpreted to mean that the judge shall announce what the order is, and that the minute clerk shall enter the order upon the minutes, but that it is the duty of the judge himself to enter the order on the minutes.

“ To enter,” with reference to the minutes of a court, is to cause to be put down upon the record any order or any part of the court’s proceedings; it is the act of setting down, or causing to be set down, in writing; recording, or causing to be recorded, in due form, any step in the case of which note must be kept.

The minute clerk was the mere amanuensis of the judge.

It was in no respect his order.

The minutes are of the court’s proceedings and are made authentic by the judge’s signature.

It would be entirely exceptional to hold that the judge must write down certain orders in proper person.

By adopting the medium of “to enter” as understood, and as given in the dictionaries, it agrees at all points with the practice of the courts.

Panel of Tales Jubobs.

2. The second ground of challenge to the array, as presented in counsel’s brief, and in his oral arguments at the bar, is that the deputy of the criminal sheriff, acting under the order of court, instead of drawing,from the jury wheel, the names of talesmen one by one, took out a handful of slips, counted one hundred and fifty names and returned the remainder. He argues that by this irregularity there was not the indiscriminate taking from the jury wheel and a resort to chance or fortuity that the statute provides; that the drawing was not as intended and the proceedings were null and void.

A violation of the special statute and the selecting of tales jurors would violate the panel of tales jurors.

Though the jury commissioners and witnesses were present, only the deputy sheriff who attended to the drawing was examined as a witness.

He is direct in his testimony; no slips were selected; they were taken out and the number exceeding the one hundred and fifty ordered to be drawn returned without reading the names.

The names were taken from the wheel at random.

There was no wrong committed to the prejudice of the accused or any irregularity detrimental to the defense.

It was not in good form to act as hastily in the drawing; we can not give it our approval, but this does not carry with it the nullity of the panel of the tales jurors.

If grounds were shown for the least inference that the defendant was denied that chance drawing of jurors for his trial which the statute provides we would annul and set aside the verdict.

If the slips had been taken out one by one, instead of many, the-fortuitous would not have been more absolute.

With the exception of undue haste there was no informality; at any rate not sufficient to annul a panel of tales jurors.

The decisions and the authorities uniformly maintain that the irregularity must give rise, at least, to an inference that the names'of tales jurors were selected and not drawn.

The Question Not Leading.

The following question was objected to by defendant’s counsel as leading:

‘ ‘ I understand you to say that when you got there, after running there, you found one man lying partly on the banquette and partly in the gutter, dead?”

The answer of the witness was “Yes, sir.”

It is true that the interrogatory must not assume facts as proven which have not been proven; nor that particular answers have been given which have not been given.

The prosecuting officer, it is shown, had not misunderstood the witness who had already testified in reference to the fact suggested by the question.

When the purpose is to lead the mind of the witness to the subject of the inquiry, the examining counsel may recapitulate to the witness the acknowledged facts already established in order to bring him to the material points on which he is to speak. 1 Greenleaf on Ev., Sec. 434; Roscoe Crim. Ev., p. 730.

In thus leading the mind he may propound a question which suggests the answer “Yes” or “No,” if it be not conclusive upon the matter at issue, and suggests incidental facts, not directly incriminating the accused.

Circumstances Under Which the Coat oe Accused Was Round.

To the following question the accused objected: “State exactly what occurred at the time of the finding of the coat?” on the ground that the fact sought to be proven was not part of the res gestee, more than two hours had elapsed after the homicide and the accused was not present.

It is s’1 own by the evidence that after the arrest of two of the accused, Walsh and Leonard, the officer repaired, about two- hours after the homicide, to where the other accused, Ryan, lives, and there found a coat on which there were blood stains.

The accused was not present.

The officer spoke to his mother and sister.

The court states, in the recital of facts incorporated in the bill, that nothing was said at the time with reference to Ryan.

By the court, reasons for ruling:

“ Later during the trial Ryan admitted the coat to have been his, and also that there were blood stains upon it. Nothing prejudicial to the accused was elicited in this examination with respect to any remarks made by Ryan’s mother or sister. I admitted the testimony for the purpose of permitting the prosecution to prove the discovery of the coat, its condition and the circumstances surrounding the discovery.

“As a matter of fact this witness did not at any time claim that he heard any remarks made by any person at the time of the finding of the coat, nor did he undertake to repeat anything as having been said at the time.”

The objection to the question lost all importance, if it ever had any, by the answer given.

With reference to that to which objection was made the witness did not testify. He knew nothing about it; had not heard.

Another bill of exceptions was taken, viz., No. 7, on the same subject matter, to the testimony of Officer Bitterwolf.

The question propounded was:

“ Who were there at the time that this coat was found?”

“Ans. Mrs. Ryan and her daughter and Officer Pordyce and myself.”

And then the following question was asked of said witness:

“ Q. Anything said at the time of the finding of said coat?”

And the witness answered and said:

“ Yes, sir.”

The trial judge states that the testimony was admitted for reasons stated in bills 4, 5 and 6, and adds:

“ It was subsequently admitted that the coat was Ryan’s.”

The coat was admissible as evidence tending to prove the presence of the accused, Ryan, at the time of the homicide, and that this garment was blood stained; it was competent to prove under what circumstances it was stained with blood.

The impulsive exclamations of those with whom the accused resided as to the identity of his coat at the time it was discovered, about two hours after the homicide, are not inadmissible declaration or narrative, but utterances which, if proven, will not vitiate the verdict; the defendant having afterward admitted that the coat was his. A new trial will not be granted to have excluded the testimony of a fact proven by defendant’s admission.

Threats Not Communicated.

Counsel for the defendants, during the course of the cross-examination of a State witness, J. Coyle, inquired of the witness whether or not before the homicide the deceased Hanley had not made certain threats against the accused.

The counsel for the defendants stated to the court that the object of the cross-examination of this witness was to prove that the deceased, Patrick Hanley, did, a short time prior to the fatal encounter, threaten the life of Michael Walsh, one of the defendants, and furthermore, that the first overt act at the time of the homicide was made by this witness, Coyle, striking Leonard, another defendant, and by the deceased drawing a pistol and pointing it at the accused, Walsh.

The court ruled that the testimony was not admissible, for the reason that no foundation had been laid for the introduction of evidence of threats by the deceased against the accused, and reserved to defendants the right later during the trial to re-examine this witness if in the meantime the basis for the introduction should have been laid.

The counsel for the defendants urges error on the part of the court in having thus ruled, and contends that on cross-examination he must be allowed to cross-examine .the witnesses for the State as to any fact to establish his defense, whether the fact be connected with or disconnected from those testified in the examination in chief.

In support of his contention counsel refers to the cases of State vs. Swayze, 30 An. 1327, and State vs. Grayson, 38 An. 788.

The distinction laid down, in both those cases, between the right of the State in the cross-examination of witnesses of the accused and the right of the accused in the cross-examination of a witness of the State is not disputed.

It is conceded by the prosecution that the accused had the legal right to cross-examine the witnesses for the prosecution, as to any fact tending to establish their defense, whether connected with the facts testified in the examination in chief or not.

The prosecution disclaims any denial of this well-established principle, and urges that the objection was that evidence of threats could in no sense be heard to establish a defense in the absence of proof of some overt act or hostile demonstration by the deceased at the time of the killing.

Such was also the reason assigned by the trial court for excluding the testimony sought to be elicited, and for suggesting postponement of the examination of the witness upon this point until proper foundation was laid.

Proof that the threats have been communicated to the accused, or of some overt act or hostile demonstration, is a condition precedent to the admissibility of testimony to prove that threats were made by the deceased.

Counsel for the defendant does not limit his argument to these propositions. He urges that the question submitted for adjudication is whether, under the state of facts as presented by the record, it was competent to show, when there is a question as to whether the attack was made by the accused or the deceased, the prior declarations of either party.

In other words, that in cases of doubt as to who commenced the attack, threats of the deceased against the accused though uneommunieated, are relevant bo show that the attitude of the deceased was hostile to the defendants.

The recital of facts by the judge in the bill must, under our jurisprudence, be accepted as correct.

He states in words not to be misunderstood that no foundation had been laid ac the time that these questions were propounded to the witness.

Whether a' sufficient foundation had been laid for the reception of the evidence was a question for the judge.

We can not assume that there was a question as to whether the attack had been made by the accused or the deceased, regardless of the judge’s statement that no foundation at all had been laid and that no attempt in that direction had been made.

The Judge’s Recital in the Bill oe Excbptons.

Later in the trial a witness on behalf of the defendants was asked the question:

“If she had heard threats made by the deceased, Patrick Hanley, against the accused, Michael Walsh, five or ten minutes prior to the fatal encounter?”

Similar objection was made by the prosecuting officer as was made to the testimony of John Coyle.

The court sustained the objection, to which defendants reserved a bill of exceptions. The following is the recital of the court in the bill:

“In my opinion under the proof, evidence of threats was inadmissible. There can be no question as to who was the aggressor, the matter is not left in doubt; the conflict was provoked by the defendants, who were the first assailants, and who commenced the attack with dangerous weapons.

“There was neither provocation, necessity nor excuse for the murder, which was cruel in the extreme. The accused were in no danger, either actual or impending. Neither the deceased nor the persons who accompanied him had made any hostile demonstrations or committed any overt act toward the accused; on the contrary, the proof established, beyond all question, that the first attack was made with murderous weapons by the prisoners. Nine witnesses for the State supported this conclusion, which was confirmed emphatically and positively by certain physical facts and all surrounding circumstances. The testimony of the interested witnesses for the defence (the three accused, the mother and sister of one of them) was palpably incorrect and no weight whatever could be given to it.”

The question of law presented by counsel does not arise in the case.

The question is one of fact as to whether a foundation for the reception of the testimony was laid, vel non.

We have the statement that the testimony left no doubt as to who made the attack.

The testimony is not before us. The facts necessary to a decision are those recited in the bill of exceptions.

They are conclusive, and leave no room to apply the principles laid down in the text books and in the decisions to which our attention is directed.

The threats were inadmissible, as they had not been communicated; no proof was made of an overt act or hostile demonstration by the deceased, and the question who was the aggressor is not left in doubt by the recitals of the trial judge as contained in the bill of exceptions.

Witness in His Own Behalf.

One of the defendants had testified.

The day after he had been discharged as a witness he was reexamined by the State.

The district attorney stated to the court that he desired to have the accused called for'the purpose of laying a foundation for a contradiction.

The defendants’ counsel, objected and assigned as reason that the accused had been a witness in his own behalf, also in behalf of the other defendants; that he had testified and had beeu cross-examined and his examination closed; that he could not be recalled to be re-examined.

The only objection was “that the assistant district attorney could not place upon the stand an accused person for any purpose, and particularly after said accused had testified and retired from the witness stand.”

The statutes of the different States making defendants competent witnesses in their own case have undergone considerable construction by the courts.

It is generally stated that if an accused chooses to waive the constitutional protection in his favor and become his own witness, he may be recalled as any other witness in the case. He may be examined, and cross-examined, impeached and corroborated. The weight of the testimony is left to the jury.

He must answer relevant questions.

“ Any other construction would render this statute the most effectual shield to crime and criminals which could possibly be devised.” ■Wharton Crim. Ev., p. 432.

“ The trial judge may, at his discretion, permit to be recalled in order to be re-examined by the party recalling him. As a matter of discretion, however, this is not reviewable by the appellate court unless it appear that the error goes to the merits of the case.” Ib. 493. It is a matter wholly within the discretion of the lower court to allow a witness to be recalled to lay the foundation for his impeachment. 11 S. E. 758; 9 So. 574.

Act 29 of 1886 is a return to a practice which became odious in the remote past.

It is now divested of all adverse presumption because of the fact that the accused does not choose to testify in his own case.

He is still protected by the presumption of the common law, as to innocence until found guilty, should he not testify.

“It is proper for the court, in all cases where the defendant declines to avail himself of the right of testifying, to hold firmly to the position that no inference is to be drawn against him from such omission. * * *

‘ ‘ And it has been considered error for the judge to decline to charge the jury that no presumption is to be drawn from said withholding, and it has been held error if the court permit the counsel for the prosecution, against defendant's objections, in addressing the jury, to comment on the omission as a circumstance against him, or a fact to be considered in determining the case.” Wharton on Grim. Ev., p. 435.

The fact that the prisoner is examined by counsel, and that the judge will be able to preserve his position as moderator, is a safeguard against the abuses of the old system.

In thus admitting the prisoner to examination as a volunteer witness under the statute, he waives his privileges as an accused in open court, during the examination of witnesses, at the trial in matters connected with the offense. He is subject to the same rules and called upon to submit to the same test as other witnesses. In the language of the statute:

“He shall be subject to all the rules that apply to other witnesses. ’ ’

His credit, like that of other witnesses, is for the jury.

Refusal to Instruct as Requested.

The last bill of exceptions reserved during the course of the trial was taken to the court’s refusal to instruct the jury as requested.

The court gave the following special instruction as requested:

“ Evidence of the character and reputation that an accused has in the community where he lives, when offered, is always competent. It tends, in many important phases of a case, to create a doubt which, but for that evidence, would not have existed in favor of the party or parties charged with crime, and it may, on the other hand, remove a doubt already existing, which otherwise might weigh heavily against the accused.

But declined to give the following:

“ Evidence of character and reputation that the accused has in the community where he lives, when offered, is always competent. It tends, in many important phases of the case, to create a doubt which, but for that evidence,twould not have existed in favor of the party or parties charged with crime, and it may, on the other hand, remove a doubt already existing, which otherwise might lay heavily against the accused.”

A party who complains that an instruction was.refused must show that it was appropriate to the case. 8 Graham & Waterman on New Trials, p. 17.

The law is tenacious of character, and correct instructions to juries make character part and parcel of the whole evidence when offered and admitted.

In this case the consideration of character was not excluded; the jury was instructed that “ it is always competent when offered.”

As to the part withheld it may be said, if character be an issue of the case, that withholding a particular instruction has not the same effect as giving an improper one. By the latter the jury is deceived, but by the former they are left unembarrassed to try the case on its merits, according to their own opinion of right and justice. 8 Graham & Waterman on New Trials, p. 1717.

A new trial will not be granted unless the jury were misled. 2 Thompson on Trials, Sec. 2401; State vs. Gorie, 35 An. 974; State vs. Riculfi, 35 An. 771; State vs. Bret, 6 An. 658.

The jury passed upon the question of guilt.

The questions of law presented do not give grounds to reverse the verdict.

Verdict and the judgment appealed from affirmed.

Dissenting Opinion.

Watkins, J.

I am in accord with the opinion of the majority, except upon one question, and that is the right of the district attorney “ to have the accused called for the purpose of laying the basis for his contradiction,” under any circumstances, and particularly under the circumstances stated in the opinion.

The defendant had accepted the grace of a special statute, and placed himself on the stand as a witness in his own favor. He was examined, cross-examined and re-examined.

He was then discharged from the witness stand. The day after he had been discharged as a witness,” in the language of the court, he was recalled by the State and examined, “ for the purpose of laying a foundation for a contradiction.”

In so doing the State made the accused her own witness, and his testimony his own evidence. In my opinion, the statute authorizing accused persons to testify is not susceptible of the interpretation the court has given it. It declares that while the circumstance of the witness being a party accused shall in no wise disqualify him from testifying,” yet that declaration is coupled with the proviso, “(1) that no one shall be compelled to give evidence against himself;” and “(2) that if the person accused avails himself of this privilege, he shall be subject to all the rules .that apply to other witnesses, and may be cross-examined as to all matters concerning which he gives his testimony.” Sec. 2, Act 29 of 1886.

In this instance the accused has been coerced to violate both of the foregoing provisions of the act, (1) by compelling him to testify against himself as a witness for the State, against his solemn protest; (2) by compelling him to give testimony for the State otherwise than on cróss-examination, and in relation to matters and things about which he was not interrogated in chief while on the stand as a witness in his own behalf.

If the decision be in conformity to the statute, it is plainly unconstitutional, being in direct conflict with Art. 6 of the Constitution.,

This statute is an enabling law, and like other enabling statutes should be strictly construed.

If the construction placed upon the statute in question prevails,. any ivitness who has appeared and testified for an accused becomes liable to be thus called by the State as a witness for the accused notwithstanding his discharge, and at any subsequent stage of the trial, and compelled to give evidence against himself. My understanding of the law is different. I am firmly of the opinion that the State exhausted her right of questioning the accused upon his cross-examination, and that both the statute and Constitution forbade his being-made a witness for the State, and coerced to give testimony against himself.

For these reasons I feel constrained to dissent from the opinion of the majority.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 11,223.
    V. M. Purdy vs. A. J. Forstall et als.
    1. A mere declaration by a creditor that he would not execute his judgment until a certain person should return from Europe is not such a granting of time as would release the debtor’s surety. Even had tliewords used been unequivocal, they being expressive of mere intent did not create any obligation nor estop the creditor, ü. C. 1814, 1815.
    2. Mere forbearance or delay of a creditor in enforcing his rights against the principal does not release the surety, who may, if he chooses, pay the debt, and becoming subrogated to the creditor’s rights control the claim to his own satisfaction.
    3. A surety upon an unconditional obligation to pay has no right when sued to attempt in that suit, to which the principal debtor is not a party, to adjust collaterally an unliquidated claim for damages for inexecution of a contract between the latter and the creditor, which the principal debtor has not himself claimed or asserted.
    APPEAL from the Seventh District Court, Parish of East Carroll. Montgomery, J.

      Robert Whetstone and Cunningham & Lyons for Plaintiff and Appellee.

      Omer Villeré for Defendants and Appellants:
    af maturity and enforced the obligation against his principal. 28 An. (N. R.), Case vs. Sarpy; 29 An. 844, Hill & Co. vs. Bourcier et al. 1. Forbearance to sue does'nofc release the surety, who might have paid the debt
    2. Mere inaction on the part of the creditor does not discharge the surety. 32 An. 1280, Pharr vs. McHugh & Vinson.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiff alleges that under a writ of ft. fa. issued from the District Court for East Carroll parish in suits Nos. 701, 705, 708, 709, 711 and 748 the sheriff of that parish had seized and advertised for sale certain property belonging to him.

That he was informed that said writ was issued at the instance and under the instructions and order of Anatole J. Forstall, upon a cer-. tain pretended twelve months’ bond for $2400, which he claims to own, given for the sale of a lot of mules and other pers'onal property-sold under judgments in the above numbered suits, which said bond was executed on the 5th day of June, 1886, and held by the sheriff or some other person until the 12th day of June, 1889, when it was filed in the District Court for East Carroll in the clerk’s office, endorsed in blank by J. C. Bass, sheriff, and the writ of fi. fa. was issued upon it, and his property seized.

That said seizure was wrongful, unjust and unwarranted, because it was in violation of an express agreement upon the part of Francis M. Taylor (who acted as the agent of A. J. Forstall) with petitioner, who, petitioner was informed, believed and alleges, acted in the interest and benefit of said Forstall and in the interest and benefit of Mrs. F. M. Taylor, the defendant in the above mentioned suits.

That when the sale was made of said mules, etc., and it became necessary to give said bond, F. M. Taylor, acting as aforesaid, procured and induced the plaintiff, Purdy, to become surety thereon, with the understanding that he would not be held liable on the same if the proceeds should be held by the court to belong to Forstall and Hernandez.

That at that time there was an agreement upon the part of For-stall to sell Mrs. Taylor and Francis M. Taylor the Live Oak plantation, which Forstall had lately purchased under a foreclosure of mortgage, and to which said mules, farming utensils, etc., were attached and belonged, as claimed by Forstall, and saidF. M. Taylor purchased the same with the understanding that they would be covered by the purchase price of the sale of the plantation, and plaintiff signed said bond with said Taylor, as he understood, at the request of Forstall, to protect them from passing out of the hands of said Taylor, and taken from the Live Oak plantation; and when he signed said bond as Taylor’s security it was his understanding that Forstall' and Hernandez would look only to the property, for the purchase of which the bond was given, and not to him.

That after the execution of said bond Forstall and Hernandez were declared by a judgment of the District Court for East Carroll, upon opposition's filed in suits Nos. 701, 705, 707, 708 711 and 748, to be entitled to the proceeds of the sales made under the fi. fa. issued thereon, and for which the bond was given, and in violation of said agreement of his (Forstall’s) agent he was seeking to hold him upon the bond.

That said fi. fa. was wrongfully issued upon said bond because it was not at the time the same was issued such an instrument as under the law a fi. fa. could issue upon; that it was no longer a twelve months’ bond, its' character, force and effect as such having been changed by taking additional security thereon after it had become due and should have been executed, making it really and in fact an ordinary bond or contract.

That by the acts of Forstall, plaintiff has been released upon said bond, even if he were ever liable upon it as security. That on the 5th day of June, 1887, when said bond was due and exigible, execution should have issued upon it, and the property for which it was given should have been seized and sold; but instead additional security was taken thereon and its collection extended to November following, about five months, with the distinct understanding and instruction of jplaintiff that its collection should then be enforced if he was bound upon it, which he avers he was not if it became the property of Forstall. That at that time Taylor held possession of all the stock and other property for the purchase of which the bond was given, and the amount of the bond could easily have been made by the sale of them under it; but instead of proceeding to the collection of the bond at that time, Forstall allowed the time of payment by Taylor, the principal thereon, to be extended from month to month, and year to year, without plaintiff’s consent, and in fact against his express wish and instruction, until a large portion of said property had been disposed of by Taylor and he became insolvent, and now For-stall illegally endeavors to hold plaintiff responsible therefor and require of him to make good the loss, if any, which he had sustained by his own acts; but that he has been informed and will show that the debt for which said bond was executed as claimed by Forstall has been extinguished, and really and in fact Mrs. Taylor is not indebted to him in any amount.

Alleging that the sheriff unless enjoined would sell his property under the writ, and that he, the plaintiff, had been damaged by the seizure to the amount of five thousand two hundred and fifty dollars, he prayed that the said sale be enjoined, that the sheriff and Forstall be cited, and that he have judgment in his favor decreeing him released from any liability upon said bond — that the injunction be perpetuated, and that he have further judgment for the amount of the damages claimed.

The sale was enjoined as prayed for.

Eorstall answered, first pleading the general issue. He then admitted that he, together with Charles Hernandez, own the twelve months’ bond referred to, and averred that the same was a just and binding obligation of plaintiff, and exigible in manner and form attempted by him and Hernandez.

He admitted that he, together with Hernandez, caused the seizure of plaintiff’s property under ft. fa. issued on said twelve months’ bond, which the principal and security refused to pay. That he and Hernandez, being joint owners of the bond, had the legal right and a just cause to proceed as they did. Reserving his right to demand damages from plaintiff and his sureties on the injunction bond, he prayed that plaintiff’s demand be rejected and the preliminary injunction be dissolved.

Charles Hernandez, with leave of court, intervened in the suit, and averring that he is equally interested therein with A. J. Eorstall, for the reason that they together own the twelve months’ bond, execution on which had been enjoined, he adopted Eorstall’s answer and allegations and joined also in his prayer.

The case went to trial and judgment was rendered therein perpetuating plaintiff’s injunction and condemning defendant to pay $250 attorney’s fees.

Defendant and intervenor have appealed from the judgment.

In order to reach a clear understanding of the position of the parties, it will be necessary to make a statement of facts which are somewhat complicated.

On the 25th of January, 1884, Mrs. Lizzie M. Taylor, wife of F. M. Taylor, executed her mortgage note of that date for $5000, to her own order and by her endorsed, payable on the 1st January, 1885, with interest at 8 per cent, per annum from maturity, and secured payment of the same and 10 per cent, attorney fees in case of suit by a mortgage on her plantation, known as the Live Oak plantation, in the parish of East Carroll, with mules, etc., thereon.

On the 21st day of February, 1885, she mortgaged the same property to secure two promissory notes of $4000 each, to her own order and by her endorsed, payable one year after date, with interest at 8 per cent, after maturity and 10 per cent, attorney fees in case of suit.

On December 4, 1885, a number of the creditors of Mrs. Taylor sued her, accompanying their demands for a moneyed judgment by applications for writs of attachment against her property, which writs having been granted and issued were executed, some upon the Live Oak plantation and others upon that plantation and a stock of goods belonging to her in her store at Lake Providence.

On December 8, 1885, Anatole J. Forstall, as owner of the note above described of Mrs. Taylor for $5000, instituted proceeding via executiva thereon, and under the same the Live Oak plantation and the mules, farming utensils, etc., thereon were seized.

W. G. Vincent and other attaching creditors thereupon intervened by way of third oppositions, which (as similar ones were again filed at a later period) are now simply referred to, and will be more particularly mentioned hereafter.

On the 26th April, 1885, Anatole J. Forstall, as holder of one of the two mortgage notes of $4000, and Charles Hernandez, as holder of the other note, instituted proceedings jointly via exeeutiva and the Live Oak plantation with the mules, carts, utensils thereon were seized thereunder, and under these writs it was advertised for sale. W. G. Vincent, one of the attaching creditors spoken of, who had already filed one “third opposition,” now filed another, covering the same grounds as the first.

In the petition he averred that, finding that the property originally attached by himself was insufficient to cover his claim, he had applied for and obtained an order for a second attachment, directed to the sheriff of West Carroll parish, with instructions to seize sixteen mules belonging to his debtor, which, he had been informed, were then in that parish; that before process issued Mrs. Taylor caused the property to be brought to East Carroll and placed them on the West Oak plantation for the purpose of avoiding a seizure, and with afview of permitting them to be seized under the executory process of Forstall which had been previously levied on that plantation, the object being to shelter them from his (Vincent’s) pursuit by having them embraced under said proceeding, which was a friendly suit conducted for mutual benefit of the litigants therein.

That as soon as said mules were placed on said plantation he had caused an alias writ of attachment to issue, and they were seized thereon.

That soon after he had caused them to be seized they were seized under the executory proceedings and were advertised to be sold thereunder.

That since his petition of third opposition was filed on the 5th February, 1886, Forstall and Hernandez, representing themselves as mortgage creditors of Mrs. Taylor, commenced proceedings against her in April, 1886, in which they are again attempting a sale of the mules, notwithstanding said mules had been taken out of the possession of Mrs. Taylor by an attachment which was prior to the last proceedings.

That said plantation without said mules was worth more than sufficient to pay the demands of Forstall and Hernandez, by reason of mortgage or otherwise. Charging fraud and collusion between For-stall and Hernandez and Mrs. Taylor, and that the real object of the executory proceedings was to overreach and destroy his rights, and to make a fraudulent and simulated sale of the Live Oak plantation and the mules for the benefit of Mrs. Taylor; that Forstall or Hernandez or some interposed party was to buy in said plantation and mules, ostensibly for cash, but actually to allow Mrs. Taylor in her own name, her husband’s name or that of some interposed party to occupy and cultivate said plantation, and out of the crops make annual payments to Forstall and Hernandez of the small balance really due them on said mortgages, and ultimately preserve the property for the benefit of Mrs. Taylor, and attacking the claim set up by the-mortgage creditors, third opponent prayed that if Forstall and Hernandez persisted in having said sale made that the sheriff be ordered to have the mules separately appraised and separately sold from the other property seized, and ordered to hold the proceeds of their sale in his hands until further order of court; that after trial had, the ex-ecutory proceedings be decreed fraudulent and collusive; that the proceeds of the sale of the mules be ordered to be paid to opponents by the sheriff, in satisfaction of the judgment he would obtain in his attachment suit; that his rights as attaching creditor be recognized and maintained, and as beingsuperior in rank to all others as regards said mules and their proceeds.

This opposition was quickly followed by others of a similar character on the part of other creditors, and under and by virtue of them the mules were ordered to be withheld from sale under the executory proceedings, and to be appraised and sold separately, which order was subsequently carried into effect.

Pending the seizure the sheriff leased the plantation and mules to F. M. Taylor, the husband of the defendant — the lease of the plantation for the year 1886, at a rental of $2000, and the mules for a period and for a rental not shown by the record.

In the meantime, and after considerable delay, the plantation was sold on the 17th day of July, 1886, on twelve months’ bond, and adjudicated to Forstall, for $10,000, he paying the sheriff the costs of proceeding, giving his twelve months’ bond for $7000, to cover the possible eventual rights of the various third opponents, and retaining the balance as mortgage creditor.

Some of the ordinary attaching creditors having succeeded in obtaining judgments on their claims, writs of fi.fa. were issued thereonj and- under them the mules were seized, and, together with some movable property, were, under those seizures, and those of Forstall and Hernandez, sold on twelve months’ credit to F. M. Taylor, for the sum of $2400, for which he executed his twelve months’ bond as purchaser, with Y. M. Purdy as security.

The issuing of the writs of fi. fa. brought about the filing of a number of third oppositions in the matter of the last sale, the different parties claiming priority of payment, among them Forstall and Hernandez.

We may say here that that litigation terminated adversely to the third opponents and favorably to Forstall and Hernandez, adjudging to the latter the twelve months’ bond, the proceeds thereof to be applied to the payment of their mortgage claims.

On the 29th November, 1886, after Forstall had become the adjudieatee of the Live Oak plantation, an agreement was entered into between Forstall and Hernandez and Mrs. Taylor, as follows:

It is agreed and understood between Mrs. Lizzie M. Taylor, of Lake Providence, La., and Anatole J. Forstall and Charles Hernandez, of New Orleans, La., that whereas the Live Oak Plantation, in the parish of East Carroll, was purchased in July, 1886, by said A. J. For-stall, for ten thousand dollars, at á sheriff’s sale thereof in the suit of Forstall and Hernandez vs. said Mrs. Lizzie M. Taylor, and whereas the parties hereto hereby appraise said property at $15,000, and verily believe that the same could be sold at that price at some .future time. The said Forstall and Hernandez both hereby agree that at any time within five years that the said Mrs. Taylor shall pay to them the amount due them, they should transfer said property to her qr to any person whom she shall designate. The said Mrs. Taylor obligates herself to pay to the said Eorstall and Hernandez the amount she owes them, which amount shall be determined in the suit now pending in East Carroll, entitled A. J. Eorstall and C. Hernandez vs. Mrs. Lizzie M. Taylor, said interest to be paid annually, on the 1st day of January of each year.

. Mrs. Taylor, moreover, binds herself to pay yearly, as they shall become due, all the taxes on said Live Oak plantation. Forstall and Hernandez agree that they shall rent the said plantation and credit Mrs. Taylor with the rent on account of her said indebtedness to them. They further agree that at any time they shall find a good purchaser for said plantation, to sell it for fifteen thousand dollars, out of which amount they shall deduct the amount due them by said Mrs. Taylor, and turn over the balance to her. In case any part of this agreement is not complied with, the same to be null. Thus done and signed at New Orleans, La., this 29th November, 1886.

(Original signed) E. M. Taylor,

Agent of Mrs. Taylor.

A. J. Forstall.

Charles Hernandez.

About the time the twelve months’ bond fell due (5th June, 1887),. the litigation relative to the mules being then pending and undetermined, a question arose as to whether it should be then executed or not, and a conference took place between some of the attorneys representing the third opponents in that proceeding and E. M. Taylor. As a result of that conference execution of the bond was stayed until the issues raised in the third oppositions should be disposed of, provided J. B. Donnally should sign the bond as additional security, which was done. - Eorstall and Hernandez do not seem to have been a party to that agreement. Whether Purdy was present or not at the conference is immaterial, as he concedes in his pleadings that he consented to the extension.

No action was taken upon the bond so far as Purdy was concerned until it was filed in court and the fl. fa. issued upon it, under which the seizure was made which gave rise to the present controversy.

E. M. Taylor, who had purchased the mules, subsequently to that purchase bought one-half of a plantation in East Carroll, mortgaging the property for payment of the price.

He disposed of four of these mules — not accounting to Hernandez and Forstall for the proceeds. The balance were placed by him on the property purchased, and falling under the operation of the mortgage, the proceeds of the sale thereof, when they were afterward sold in the execution of the bond as against Taylor, were adjudged to his vendor.

Referring to Purdy’s petition it will be seen that he claims that the indebtedness of Mrs. Taylor to Forstall and Hernandez (which so far as the record has not up to the present time been fixed by a personal judgment against her) was extinguished.

The basis of this claim is the action of Forstall and Hernandez relatively to the Live Oak ¡plantation after the agreement between them and Mrs. Taylor. On thi3 subject counsel of plaintiff say in their brief: “ Under the terms of that agreement Messrs. Forstall and Hernandez are now indebted to Mrs. Taylor. They agreed in said contract they would pay to Mrs. Taylor all in excess of $10,000 that they gave for her Live Oak plantation, if they could find a purchaser for said named place, provided that the sale could be made within five years from the date of the contract.

“The records show.that Forstall sold to Hernandez,both of whom were contracting parties with Mrs. Taylor. The records further show that Hernandez made Joseph E. Ransdell his agent to sell this Live •Oak plantation, and that Ransdell, as agent, has sold 919 acres of land out of the 960 tract, and that he sold it at the price of $28,894, having still left 41 acres that he has not sold.

“ Even if the sworn statement that Forstall has made is correct, he and Hernandez would owe Mrs. Taylor about $18,000 after she has paid them every cent that she owes them. The evidence shows she was in possession of Li\ e Oak plantation at the time it was seized and sold. She made and gathered a crop that year. Forstall allowed her to keep thefplace after he had it sold and he bought it. He furnished her plantation supplies that year, and it was to his interest to .assist and aid Mrs. Taylor. There was an express understanding between F. M. Taylor and Forstall that Taylor was to buy the work stock when sold, so that they would be kept upon the plantation, in order to cultivate and complete the crop they had planted. Forstall had written a letter to Taylor requesting that he would get some one to go on a bond for him if he purchased the property.”

‘ ‘ The evidence shows that in 1886, the year that she made this contract, and the same year of all these transactions, Mrs. Taylor paid the interest and the taxes on the property.”

“The following year, 1887, the plantation was rented to Dunn for the sum of $2000. This amount was collected by Forstall and Hernandez. This amount collected paid the interest on the plantation for that year, and there were about $900-over to go as a credit in the year 1888. Forstall and Hernandez then took the plantation out of the possession of Mrs. Taylor, thereby violating their part of the contract, placing it beyond the power of Mrs. Taylor.”

“ After Live Oak plantation was seized, the sheriff rented the plantation to Taylor for that year (1886) for$2000. That Taylor never paid one cent of this money to the sheriff, but the latter turned the money over to Taylor upon a written order of Forstall.”

The “records” to which counsel allude are doubtless acts of sale of the Live Oak plantation and different portions thereof from For-stall to Hernandez, and from Hernandez to different persons, but they are not in the transcript.

We now turn to the consideration of plaintiff’s contention that under certain circumstances he was not to be held liable on the bond, and that the circumstances have occurred which were to exempt him.

In a letter written by Forstall to Taylor under date of May 24, 1888, he said: “Mr. Hernandez is absent at present from the city, and, of course, under the circumstances, as he is interested with me in this matter of the Live Oak plantation, I can give you no positive answer until his return, which, I believe, will be in about a month, as he is now in Europe, but he expects to return soon.”

F. M. Taylor testified as follows:

“ I got Mr. Purdy to sign it (the bond) as obliging two parties, myself and Mr. Forstall. I told Mr. Purdy that he would run no risk, as I was Mr. Forstall’s duly authorized agent, and I showed him the power of attorney offered in evidence (from Forstall to Taylor) .
“I accepted the terms and conditions of the power of attorney and on various occasions acted by its authority. I transacted all of Mr. Forstall’s business for him in this parish — collected debts for him, authorized suits to be brought for him. I looked after his business in every particular the same as if he had been present. I brought suit against Y. M. Purdy (another suit) for him, closed out the Larch business for him, and bought the Therrel store for him — bought it in my own name, but it was virtually for him.
“The cheek I gave Mr. Therrel for his store and fixtures I sent to Forstall, and had him credit Therrel’s account with it. At the time the mules were seized, Forstall had a bill pf sale for the mules. There was an agreement between Mr. Forstall and myself to wait until Hernandez should return from Europe. The letter (of May 24, 1888) was in answer to one I had written in regard to Mrs. Taylor’s business — I represented her as well as Mr. Forstall — with request that Mr. Forstall come up and settle up the business, and show what Mrs. Taylor’s indebtedness was to him. There was an agreement between Mrs. Taylor and Forstall and Hernandez — it included the Live Oak plantation. In connection with my evidence I offer document “D ” (agreement between Mrs. Taylor, Forstall and Hernandez) . The reason for extending the twelve months’ bond, I suppose, was Forstall and Hernandez were waiting until the Live Oak plantation was sold so they could make a settlement with Mrs. Taylor. I don’t know this positively, I presume this to be the case. At the time I had an understanding with Forstall about extending the time for collecting the twelve months’ bond — it was about twenty-three months after the bond had been given — the rent on execution was not issued on the bond when due. I suppose Forstall was waiting to have a settlement with Mrs. Taylor. The mules were all in my possession and I had bought additional stock and farming utensils. As agent for Mrs. Taylor I have never made a settlement with For-stall and Hernandez. I had nothing but a verbal agreement with For-stall. I represented Forstall and Mrs. Taylor at the same time. The verbal agreement between Forstall and myself was made in New Orleans. Mr. Forstall told Mrs. Taylor and myself that he would not see her suffer, but would provide for her to have S4000 or |5000 in case of failure in business on her part. I had a written agreement with Forstall (but have lost it) that in any event the mules would belong to Mrs. Taylor. The bill of sale to Forstall of the mules was given as collateral to be placed in bank by Forstall — the mules were bought by Forstall, for which he gave his check on the bank. This check was sent to the bank and in return got a bank cheek for it, which I handed Forstall. I did not get any of the proceeds of the check.
“ At the time of the sale (of the mules) I was cultivating the Live Oak plantation for my own account. I had rented the mules from the sheriff and was in possession of them at the time of the sale, and protested against the sale.”

On re-examination, the following question was asked the witness:

Q. When you went to Mr. Purdy and asked him to give his consent for the extension of payment of the twelve months’ bond, did you not, as agent of Mr. Eorstall, represent to him that in case the Circuit Oourt, which was to be held at an early day in this parish, should decide that Eorstall was entitled to the proceeds of the twelve months’ bond in preference to the other creditors of Mrs. Taylor, then, in that event, did you not tell him that the twelve months’ bond was to be canceled?”
A. “I certainly intended to convey that impression, as I was acting for Forstall. Previous to the seizure of the Live Oak plantation the place had been in the name of Mrs. Taylor. In 1886 I rented the place from the sheriff. I agreed to pay $2000 rent, for which I gave my note. The sheriff returned the note to me on an order from Forstall and Hernandez. I never paid the sheriff for the note. -When Forstall made the contract with Mrs. Taylor they gave me an order for the return of my note. In compliance with the contract I was to pay the taxes due, which I did. I furnished the supplies to make the crop on the place that year. Forstall and Hernandez have not complied with their contract. If they had complied with their contract I think they would be considerably indebted to Mrs. Taylor. She has complied with the contract after the sale of the Live Oak. She considered that she ha-d paid the interest and taxes from the rents collected from Mr. Dunn, who had the place in 1887, and from the rent she considered there was sufficient amount to pay the interest and taxes for 1888 and 1889, from the fact that Forstall never made any demand on me as her agent for interest or taxes for 1886. There was no interest or taxes due, as this contract was not made until November, 1886.”

The plaintiff, Purdy, testifies as follows:

The day the mules were sold Mr. Taylor came to my place of business and asked me as a special accommodation to himself and Forstall to go on the twelve months’ bond for the mules that he had bought that day, showing his power of attorney from Forstall authorizing him to secure bonds for him. The power of attorney shown me is the same as that offered in evidence. Mr. Taylor told me it was more to Forstall’s interest to sign the bond than it was to his. He stated that he had leased the mules and implements for the year, and it would be the means of destroying his prospects if they wei’6 taken off the place.”

Being asked the question whether, at the'time of the extension of the bond, when it was about to mature, Taylor had not told him, as agent of Forstall, that in case the court should decide that Forstall and Hernandez were entitled to the proceeds of the twelve months’ bond in preference to the other creditors, that then in that evexrt the twelve months’ bond was to be canceled, he answered, “ I certainly so understood it; all of the cases were decided in favor of Forstall.”

The power of attorney from Forstall to Taylor bears date the 12th of December, 1888. It gave Taylor full power and authority to represent him and to attend to all his business and concerns in the parish of East Carroll and elsewhere, of every nature and kind whatever * * * to take in payment from whom it may concern|any form or kind of movable or immovable property and dispose of the same to others by sale or otherwise; to ask, demand, have and take and by all lawful ways and means to recover and receive from whom it may concern all and every such' wares or goods, debts, property and effects whatsoever as is now or may be in his or her or their custody and possession due, owing or belonging to him, this constituent, whether by bo¡d, bill, note, book, debt account, consignment, bequest or for and by what other reason or means soever, and to that end, to whom it may concern, to adjust and settle all accounts, and upon recovery and receipt in the premises to make and give good and sufficient receipts and acquittances; to appear before all courts of law and equity, there to do, prosecute and defend as occasion shall require, or to compromise, compound and agree in the premises, by arbitration or otherwise, as the said attorney in his discretion thinks proper; also to apply for and obtain any attachments or sequestrations, injunctions, appeal and provisional seizure, give the requisite security, sign the necessary bonds and make and subscribe thereon all affidavits, and generally to do and perform all and every other matter that shall or may be necessary, and bind the said constituent as firmly as he himself might do if personally present.”

Under date of July 12, 1886, a few days previous to the sale of the plantation and of the mules, Forstall wrote to Taylor as follows:

Dear Sir — I confirm mine of the 9th inst. Live Oak is to be sold on the 17th, and I will be required to furnish two bondsmen. Oan you specify any two parties in your city who will act in that capacity for me? If you find two who are willing]to do this send me their names at once, as the time is very short before the sale. Let me hear from you immediately and oblige,
“ Yours truly,
“ A. J. Forstall,
Per Bareshide.”

The defendant, Forstall, testified as follows:

“V. M. Purdy’s allegation in the injunction is not correct. F. M. Taylor did not act as my agent with plaintiff. I do not know anything as to the agreement entered into between Taylor and Purdy, but I authorized Taylor to make no such agreement, and in fact was very sorry when I heard that Taylor had purchased these articles under a twelve months’ bond, because I knew we would have trouble to make him pay. From the time I issued executory process in said suit up to the sale I had no conversation or interview with him, and certainly never authorized him to act- for me. Taylor was not my agent for any purpose whatever. I had nothing to do with said bond. I did not authorize Taylor to obtain security on said bond. I never induced Taylor to purchase said property. I never held out directly or indirectly, through Taylor or any one else, inducements to Purdy or Donnally in order to obtain them as sureties. I am not responsible for what Taylor may have told them, but if he did speak for me he was not authorized by me to do so. I never did or said anything to make Purdy understand I would not hold him on said bond.”

Opinion.

The theory upon which the plaintiff, Purdy, as security upon the twelve months’ bond, furnished by Francis M. Taylor, as adjudicatee •of the lot of mules purchased by him, in the proceedings of Forstall and others against his wife, has enjoined the seizure of his own property is that when Mrs. Taylor was threatened with ruin by the numerous attachments against her, her friend, Anatole J. Forstall, holding the vantage ground of being mortgagee of her Live Oak plantation, went to her assistance by foreclosure proceedings, under which he was to buy in that property, with the mules, carts, farming utensils thereon, at a price within his claim, and by arrangements to be perfected subsequently to his purchase he was to secure his own debt, enable her to pay out, but at the same time guard her against her other creditors. That this plan was disarranged by the proceedings of the third opponents, who succeeded in obtaining a sale of the mules separately from the plantation. That this severance placing Porstall in a position of possible danger of personal liability on the twelve months’ bond, which had to be furnished at the sale, should he buy himself, inasmuch as the third [oppositions might be determined adversely to his mortgage rights on the mules, it was agreed that P. M. Taylor, the husband, should purchase the mules with the understanding that if the third opponents won their suit Porstall was to disappear entirely from any connection with that sale and Taylor was to bear all the consequences of a purchaser, but should Porstall, win the suit Taylor was to be considered as having purchased for Porstall. The mules were to be replaced on the plantation, and matters were to be placed on the same footing as if severance had not taken place and Porstall had bought both lands and mules at once under his mortgage claim. That under such a condition of things Purdy was to be released, or not looked to as Taylor’s surety on the bond. That Porstall having bought the plantation, and having won his suit as to the mules, matters had taken the shape to entitle him (Purdy) to demand that he be not] proceeded against.

In view of the friendly relations between the Taylors and Porstall, and the actual execution of an agreement between Porstall and them so nearly identical with that foreshadowed by W. G. Vincent in his third opposition, it can not be denied that plaintiff has placed his case inferentially very strongly before the court, and we were at one time disposed to take his view of the situation, but on more mature deliberation we do not think the judgment of the lower court sustaining it can be maintained for several reasons.

In the first place, the mules having been sold under the writs of a number of creditors on terms of twelve months’ credit with security, it is clear that when Taylor bid them in he became their actual owner. Their ownership in the interval between the sale and the termination of the third opposition proceedings could not be swinging in a balance to rest finally upon Taylor personally, should the third opponents have judgment in their favor, and upon Taylor as an agent of or interposed party for Porstall, should judgment go against the opponents. Taylor was undoubtedly the absolute owner of the mules, and Purdy undoubtedly his surety as such for the purchase price. We have very critically examined the pleadings and thejevidence and we think that the plaintiff himself and the Taylors concede this to be the fact. Plaintiff’s contention is that, although this was the case, none the less by a collateral agreement between himself and Taylor, as agent of Forstall, he was not to be proceeded against should Forstall have judgment in his favor in the matter of the third •oppositions.

If .Taylor was the actual owner and actual debtor, and Purdy his actual security, then the claim is that their absolute obligations evidenced by a contract of so high a nature as to be executory at once on default, by fi-fa., should be done away with so far as Purdy is concerned by a side agreement.-

Such a claim as this would necessarily have to be supported by very strong evidence. We do not think it has been furnished. The side contract which plaintiff sets up rests, in the first place, solely on parol evidence, which, although permitted to be received without proper objection to the same, was, as we shall hereafter Show, of the weakest character. Taylor had been the agent of Forstall by a notarial power of attorney, antedating all these proceedings, but the agency evidently was not intended to cover a case where Taylor himself and Taylor’s wife were personally concerned — it obviously had reference to dealings with parties other than Taylor and his wife; but even were this otherwise, the powers given to Taylor in the act did not extend to making any such a contract or such arrangements as plaintiff contends for.

Again, Taylor occupied a very peculiar position in relation to all these proceedings, for even if the parties were all acting in accord they, to a certain extent, in the nature of things, had adverse interests.

Taylor claims to have represented both the creditor, Forstall, and the debtor, who was his own wife, and he was at the same time the debtor himself on the twelve months’ bond in which both Forstall and his wife had an interest. Arrangements by a person holding such conflicting interests are, to say the least, very questionable. To hold that there was such an arrangement as Purdy asserts, we have to leave the notarial act of agency, or use it only to an exceedingly limited extent, and rest our conclusions upon the actions and relations of parties, and upon parol evidence to destroy written obligations.

But leaving all this aside, we do not think the testimony supports Purdy in contending that there was any agreement between Taylor and himself prior to his becoming surety, such as he now declares on. What occurred at that time is practically covered by Taylor’s testimony to the effect that he got Mr. Purdy to sign it (the bond) as obliging two parties, himself and Mr. Forstall; that he told Mr. Purdy that he would run no risk, as he was Mr. Forstall’s duly authorized agent, and that he showed him the power of attorney offered in evidence, “ and by Purdy’s testimony that when he received the power of attorney he exhibited it to his own attorney, and on his advice that he could safely sign, he did so.”

In Purdy’s own statement he says: The day the mules were sold Mr. Taylor came to my place of business and asked me as a special accommodation to himself and Forstall to go on the twelve months’ bond for the mules that he had bought that day, showing me his power of attorney from Forstall, authorizing him to secure bonds for him, the power of attorney being the same offered in evidence. Mr. Taylor told me it was more to Forstall’s interest to sign the bond than it was to his. He stated that he had leased the mules and implements for the year, and it would be the means of destroying his prospects if they were taken off the place.” Being asked the question whether at the time of the extension of the bond, when it was about to mature, Taylor had not told him that in case the court should decide that Forstall and Hernandez were entitled to the proceeds of the twelve months’ bond in preference to the other creditors, that then, in that event, the twelve months’ bond was to be canceled, he answered: “ I certainly so understood it;” and this same question having been asked of Taylor, he answered: “ I certainly intended to convey that impression, as I was acting for Forstall.”

We think the evidence does not show that an understanding was made with Purdy at the time of his signing the bond that under certain contingencies he was not to be looked to, and does show that Purdy’s action rested upon an examination of Taylor’s powers under the notarial act and an erroneous conclusion as to their extent, and not upon anything dehors that act. The first evidence looking to or tending toward such an understanding as plaintiff speaks of refers to a date much later than the date of sale. It refers to a time when the bond was about to mature, at which time Taylor was anxious for an extension, and obtained it with Purdy’s consent — not from Forstall nor from Hernandez, but from the attorneys representing the different plaintiffs in the third opposition proceedings, which proceedings weré at that time still pending. It was those parties, and not Forstall or. Hernandez, who were pressing for execution, and it was with those parties Taylor was then dealing. It was they who exacted Purdy’s consent to the extension, and it was they who insisted upon the additional security being given upon the bond, which was secured by the obtaining the signature thereto at that time of Donnally. Taylor was clearly not acting for Forstall at that time, and Purdy had no reason to suppose that he was. If he thought proper to receive the “ impression ” that Taylor says he u intended fo convey,” he did so at his own risk, on the strength of misplaced confidence in Taylor. Even at that date matters even between Taylor and Purdy do not seem to have reached the point of any “ contract” or “ agreement ” on the subject. Purdy’s action in insisting upon what he now claims to have been a “ condition” of his consent to an extension that the bond should receive execution immediately upon the termination of the opposition proceedings shows that he considered himself as ^Taylor’s actual surety at that time, and then bound absolutely upon it, and his contention in this suit that he has been discharged because Forstall and Hernandez did not execute the twelve months’ bond at that time as against Taylor shows the same fact.

With the evidence before us we do not feel justified in accepting as established the collateral agreement for discharge which plaintiff relies on, and in making that declaration it may be well to note that through the whole of the discussion Hernandez’ rights in the premises have been utterly ignored. His rights are separate and distinct from those of Forstall. There is no pretence that he ever entered into any contract for Purdy’s discharge, and from all we can see he is prima facie, at least, a creditor of Mrs. Taylor for a much larger amount than this bond would cover.

We now consider the claim of plaintiff that time was given to Taylor by Forstall without Purdy’s consent. We have already said that to the extension of time granted at the maturity of the bond neither Forstall nor Hernandez were parties. To this extension Purdy expressly agreed. Taylor in one place in his testimony says that For-stall agreed, verbally, in New Orleans to give him time. What he says on the subject is said so loosely that we attach no importance to the statement. We think it quite likely Mr. Forstall may have, without any intention of binding himself, declared his intention to •hold matters in abeyance until Mr. Hernandez should return from Europe.

A mere declaration of that character is not the granting of time referred to in Art. 3063 of the Civil Code as carrying with it the release of a surety. There is no pretence that there was ever even a “ promise ” to postpone, but had there been it would fall under the terms of Art. 1815, which declares that a positive promise that from the manner in which it is made shows no serious intent to contract creates no oh -6on.

The failure t, Tc and Hernandez to execute the twelve months’ bond prOü.p-.j at maturity did not discharge Purdy. A mere forbearance or delay in enforcing their rights did not have that effect — he could have paid the debt, and becoming subrogated to their rights he could have controlled the claim to his own satisfaction. Hennen’s Digest, p. 1541.

Plaintiff next claims that subsequently to the purchase of the Live Oak plantation by Forstall the latter and Hernandez entered into a written agreement by which Mrsv Taylor was to remain on the plan^ tation, exercise certain rights of ownership thereon (but short of ownership), and ultimately become, under certain contingencies, the owner of the property; that Mrs. Taylor had complied with all her obligations under this contract, up to a certain period, when suddenly, without right so to do, Forstall sold the property to Hernandez, and Hernandez sold the same to different parties, placing it out of Mrs. Taylor’s power to finally comply with the balance of her obligations.

That one of the clauses of this contract so broken up was that in the event Forstall and Hernandez should find a purchaser within a certain time for the plantation, and should sell it for over a certain amount, that the surplus over that amount should be paid to Mrs. Taylor — that the price on which the property had been sold nob only exceeded the amount fixed, and paid off all the indebtedness of Mrs. Taylor to Forstall and Hernandez, but left a large balance which she was entitled to receive from them.

Up to the present time Mrs. Taylor (who is no party to the present litigation) has asserted no such claim that we are aware of against Forstall and Hernandez. We can not collaterally in this suit settle or liquidate the rights of Mrs. Taylor under that contract. Purdy is ■ not authorized to advance claims for or stand in judgment for her.. We can not undertake to say what the rights of parties would be were she to do so herself at some future time, and the condition of affairs should prove such as plaintiff represents.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment of the District Court be and the same, is-hereby annulled, avoided and reversed, and that plaintiff’s demand be and the same is hereby rejected, and the injunction taken out by him be and the same is hereby dissolved, costs in both courts to be-paid by appellee.

Rehearing refused.


author: Fenner, J.

text:
    No. 11,173.
    Succession of Mrs. E. F. Lewis.
    1. The court maintains the rules laid down, in Miller vs. Handy, 33 An. 160, as regulating purchases on credit by a wife in community; but when a wife has SO' purchased and has actually paid, out of her own funds, two-thirds of the purchase price, besides all interest, taxes and expenses, and has held and administered the property in her own right for more than sixteen years, and for six of them after the death of her husband; when her husband went into bankruptcy and omitted this property from his schedule without complaint from any creditor; when the inventory of his succession omitted it without any such complaint; when the wife has died without any attack on her title, we consider that the laches and long acquiescence of the husband’s creditors till after her' death would relax the rigidity of proof ordinarily required in such cases, and that the evidence in this case would, under such circumstances, suffice to defeat an attack by them, which, however, has never been made or threatened,, and is only suggested by an adjudicatee as an objection to accepting the title.
    2. In this case the heirs of the husband are also sole heirs of the wife and are interested in maintaining the latter’s title.
    3. There would be no motive for attack by creditors in any event, because the unpaid price and restitution of wife’s paraphernal funds would about absorb the value of the property.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

    C. L. Walker for the Executor, and Chrétien & Southon for the-Public Administrator, Appellees.
    As to title to property purchased by a wife and deeded to her, the fact of ownership, of record and of public information being unquestioned and undisputed by the husband for more than nine years preceding his decease, or by any creditor or heir for seventeen (17) years, is sufficient, even in view of Arts. 2405. and 2402, Civil Code, to overcome any presumption as to any claim of the community or of the husband’s estate against the same.

      Article 2405, Civil Code, which provides that all effects which husband and wife reciprocally possess are presumed common effects or gains, unless it be satisfactorily proved which of such effects are otherwise acquired, in itself affords the right to the surviving marital partner to maintain his or her title by such evidence as is usually admissible in ordinary actions.
    When it appears from the evidence that property bought during marriage, by the wife and in her name, with the authority of her husband, who was a party to the deed of sale, was paid for out of money that belonged to the wife, neither the executor of the husband nor any devisee of the husband, who is not his creditor or forced heir, can contest the widow’s title to the property, and set up that it is community. X>rumm vs. Kleinman, 31 An. 124.
    The actual possession as owner of immovable property, purchased and recorded in the wife’s individual name for more than ten (10) years (in fact for seventeen (17) years), constitutes under Art. 3478, Civil Code, such “ possession in good faith and by a just title ” as to amount to sufficient proof of ownership as might be required by Art. 2405, C. C.
    The recorded title of the wife and the possession by the wife during the existing of the matrimony, however incomplete or inchoate, is a faet as any other fact, ultimately depending on proof, and is not an absolute nullity; such incompleteness does not vest the title in the husband, nor in the community through him as its head; the decedent’s estate has only a right of action for one-half of the property or its contribution to the extent of one-half of its value.

      Chas. F. Claiborne for Appellant:
    Declarations in an act of sale to the wife that the property was purchased for her account, and with her own separate and paraphernal funds, are binding only upon the husband and his collateral heirs, but do not affect his forced heirs nor his creditors. Bachino vs. Coste, 35 An. 570; 1-L. 206; 9 E. 211; 10 An. 686, 784, 739; 11 An. 326; 28 An. 314; 31 An.126; 33 An. 612; 34 An. 374.
    The law presumes the existence of the community of acquets and gains; astipulation to the contrary must be proved. C. C. 2399 (2369), 2405 (2374).
    All property purchased during marriage, “ even though the purchase be only in the name of one of the two and not of both,” is presumed to be common, “because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.” C. C. 2402 (2371).
    The title being taken in the name of the'wife does not even raise a presumption in her favor. 9 E. 214; 7 An. 104; 29 An. 76; 30 An. 170.
    Even though the title specifically declares that the price was paid with her separate funds under her administration accruing to her from a designated source. 1 L. 206; 5 An. 741; 11 An. 326; 18 An. 126; 20 An. 531; 30 An. 169; 33 An. 612; 35 An. 570.
    ■The burden of proof is upon the wife, or heirs, or assigns, to establish affirmatively and clearly that she paid with her own separate funds, under her own separate administration. 17 L. 300; 12 R. 582; 2 An. 763; 5 An. 611; 8 An, 286; 12 An. 598; 15 An.119; 16 An. 214; 20 An. 532 ; 21 An. 344; 24 An. 521; 30 An.170; 35 An. 570.
    Even when the act contains specific mention thereof, giving derivation of funds. 1 L. 206; 11 An. 326; 18 An. 126; 20 An. 531; 33 An. 612; 30 An. 169; 5 An. 741; 85 An. 570.
    The husband alone, and not the wife, is liable upon notes furnished by the wife for part of the price of property purchased in her name during the community, when her means did not justify a reasonable hope of her ability to pay them— upon the ground that the purchase is one made really for account of the community, for whose debts the husband alone is liable, and that the wife can not bind herself for the debts of her husband or of the community. O. C. 2398; 12 R. 582; 2 An. 808; 6 An. 57; 10 An. 30; 12 An. 350; 13 An. 593; 19 An. 250; 29 An. 76; 32 An. 907; 34 An. 977, 1063; 33 An. 160 (167).
    A purchaser can not be made to take a title which is not unquestionably good and which is suggestive of litigation. Janies vs. Meyer, 41 An. 1100; Succession of Justus, No. 11,061 X. R.; Succession of Dumestre, 40 An. 571 (574).
   The opinion of the court was delivered by

Fenner, J.

This is a proceeding to compel compliance'by the adjudicatee with an adjudication made of certain property sold at pub-lie'auction under an order of court in this succession.

The defence is:

“That neither the deceased nor her succession was owner of the whole of said property; that said property was purchased from the heirs of J. Waterman and wife by act of A. Hero, notary, dated April 8, 1876, in the name of Emma Frayser, wife of Robert N. Lewis; that said property was therefore owned by the community existing between the said Emma Frayser and her said husband, Robert N. Lewis, and that it could be sold only by him or in his succession, and was liable for the payment of his debts; that the said R. N. Lewis died on March 31, 1886, leaving three minor children, and debts exceeding in value the amount of the assets, as appears by record No. 17,608 of the Civil District Court.”

After a careful study of the evidence in the record we find no reason to disturb the finding of facts as made by the careful judge a quo, which he states as follows:

“Mrs. Emma F. Lewis, then the wife of Robert N. Lewis, acquired the property sold, 185 St. Charles street, on April 8, 1876. There was no separation of property; the community of acquets and gains existed between her and her husband, Robert N. Lewis; the act recites that she purchased with her own separate and paraphernal funds, derived, as she declared, from her father, Dr. John A. Frayser, of Memphis, Tenn.; the purchase price was $9800, of which $2450 was paid cash, the balance on terms of credit, secured by vendor’s lien, and evidenced by thirty notes. Mrs. Lewis, at the time of the purchase, received from her father $2500, and subsequently, for the purpose of paying the mortgage notes, $1400; her father and husband were both at that time wealthy. It was clearly the intention of Mrs. Lewis to acquire a .home, and thus provide against her husband’s future financial embarrassment.
“ Mrs. Lewis and her husband lived in the house from 1876 to about 1883.
“ In 1882, Robert N. Lewis failed. On May 22, 1883, he took the-benefit of the insolvent laws of this State, and was adjudicated, in suit No. 8653 of this court, an insolvent. The property sold herein was never included or mentioned in the insolvent proceedings. On the 29th of March, 1886, Lewis died. His succession was opened in this court and numbered 17,608. The property in controversy was not inventoried or referred to in the succession proceedings. His succession was insolvent.
“On the 22d of February, 1892, Mrs. Lewis died. From 1884 to the date of her death the property, with the furniture therein, was-rented by Mrs. Lewis, individually, or by her agents, for her account. It was rented at $125 per month from 1884 to 1891, and after 1891 at-$80 per month; Mrs. Lewis collected the rents herself, or they were remitted to her by her agent; the property was always assessed and the taxes paid in her name. Up to the time of her death, mortgage-notes amounting to $3879.17, and the interest thereon, were paid; twelve notes amounting to $3470.83 are due and unpaid. There is-no positive testimony as to who paid the notes, but the court is satisfied that they were not paid by the bankrupt husband, and concludes from the circumstances of this case and the presumption arising from the facts disclosed, that they were paid, as well as the purchase price, by the wife out of the money received from her-father and the revenues of the property.”

On these facts the judge maintained the wife’s title, and the adjudicatee has appealed.

We are not disposed to depart from orto extend the rules carefully-formulated by us in the case of Miller vs. Handy, as follows:

“ It is difficult to lay down precise rules as to the limits within which, the wife’s liberty to purchase on credit should be restricted, but we think the following general propositions are reasonable, viz.:
“1. It should be regarded as essential that the wife should have-some paraphernal funds to invest, because such investment is the-foundation of her right to purchase.
“2. The cash so invested should bear such fair proportion to the total price of the purchase as to render it reasonably certain that the property purchased would furnish sufficient security for the credit portion of the price.
“ 8. The wife’s paraphernal property and revenues should be ample to enable her to make the acquisition, with the reasonable expectation of being able to meet the deferred payments.” Miller vs. Handy, 33 An. 160.

The two first rules are fully complied with in this case; but it must be confessed that the evidence would hardly be sufficient, under ordinary circumstances, to establish compliance with the third rule. But the circumstances in this case are unusual and extraordinary. We are confronted with the facts that Mrs. Lewis has actually paid about two-thirds of the price of this property, besides all the accruing interest, taxes and expenses; that she purchased it in her own name and as an investment of paraphernal funds under her own administration; that she has held and administered the property in her own right, under a title never questioned, for more than sixteen years; that when her husband went into insolvency, this property was not placed on his schedule and no creditor ever complained of its omission; that when her husband died, this property was not included in the inventory of his estate and no creditor, objected; that six years after his death she has held and administered the property as her own, without question from any source; and that it is only after her death, when her lips are sealed, which might fully have justified her right, that this issue is, for the first time, raised — not by any creditor or heir, but by an adjudicatee who anticipates an improbable and, we think, an impossible disturbance of the title.

So far as the heirs of R. N. Lewis are concerned, they are the three children of his marriage with Mrs. E'. T. Lewis, and are her sole heirs and sole testamentary legatees, and are obviously interested in maintaining her title.

So far as his creditors are concerned, if, after this lapse of time, any such remain, we think that, considering their laches and long acquiescence, up to the death of Mrs. Lewis, the rigidity of proof ordinarily required in support of a wife’s title would be so far relaxed that the evidence contained in this record would suffice to destroy any attack which they could make upon it. We may add that, even if the property were held to be in the succession of R. N. Lewis, the unpaid mortgage and the satisfaction of Mrs. Lewis’ paraphernal claims would about absorb its value.

On the whole, we see no reason to disturb the judgment.

Judgment affirmed.


author: Eenner, J.

text:
    No. 11,195.
    C. V. Thibaut, Sheriff, vs. Dr. N. M. Hebert.
    The “business of slaughter houses,” as used in the license law of 1890, means the business of slaughtering animals for sale. It does not matter whether it is carried on in a house or in a shed, on his own property or on rented property; whether he slaughters his own animals or those of others — if the slaughtering is followed as a business, and is for public sale of the animals slaughtered, it is subject to the license.
    APPEAL from the Third Justice of the Peace of Parish of Plaque-mines. Barry, J.

      Gauthreaux & Lory for Plaintiff and Appellee.

      James Wilkinson for Defendant and Appellant.
   The opinion of the court was delivered by

Eenner, J.

A license is claimed from defendant under Section 9 of the license act of 1890, for “ carrying on the business of * * * slaughter house.” The case was submitted on the following agreed statement of facts:

“Defendant kills one or two beeves a week, which are raised or pastured on his Bohemia plantation; said beeves are killed under a shed, and afterward sold in his plantation store, for which he pays a license as retail merchant and liquor dealer on the public road. Most of these beeves are purchased originally in New Orleans.”

From a judgment enforcing the license claimed the defendant appeals.

We think defendant pursues the “ business of a slaughter house.” The statement of facts shows that he slaughters animals regularly and continuously, and that he slaughters them for sale. Worcester defines slaughter house “ a house where beasts are slaughtered for market,” therefore the business of a slaughter house is the slaughtering of beasts for market or sale. This, we think, is the natural and common acceptation of the words and conveys the legislative meaning. A reference to the act establishing the slaughter house company, No. 118, of 1869, shows that the Legislature considered the “slaughter house business” to mean the slaughtering of animals “ the meat whereof is destined for sale.” The facts that the business is conducted in a shed instead of a house, that the animals slaughtered belong to the party, and that the meat is sold in a public store carried on by him, do not seem to affect the case.

The Section 9 of the license act of 1890 embraced in the same paragraph various other businesses besides that of ‘ ‘ slaughter house, ’, such as the business of “cotton ginnery,” and of “refining sugar and molasses,” but it took pains especially to exempt “ planters and farmers grinding and refining their own sugar and molasses, or ginning their own cotton or that of their tenants.” It extended no such exemptions to persons who conduct the business of a slaughter house, thus making no distinction in favor of those who slaughter their own animals for sale. We can make no distinction where the law makes none.

Judgment affirmed.

Rehearing refused.