author: Spofpohd, J.

text:
    State v. Johnson and Melville.
    The Supreme Court can not pass upou points not reserved by bills of exception, and which can not be assigned as error.
    Wh re the prisoner had pleaded to an indictment for murder on a former trial — held, there was no necessity for a new arraignment.
    Where an indictment for murder alleges in one count the death of the party killed to be by beating, , and in another count by drowning, and each count lead to the same conclusion, the State will not be compelled to elect between the counts — the mode of killing not being material to the constitution of the offence.
    Evidence of tacit admissions of a prisoner should be received with the greatest caution. This sort of evidence should not be received unless it consists of direct declarations of that kind, which naturally call for contradiction, and which, by his silence, the party acquiesces in.
    from the First District Court of New Orleans, Robertson, J.
    ' Morse, Attorney General, for the State.

      Wapples & Wapples, for defendant and appellant
   Spofpohd, J.

This case has already been before the Supreme Court, and was remanded for a new trial, on account of the erroneous rejection of a witness for the defence. See 9 An. p. —

Upon the second trial, the defendants were again convicted of manslaughter, and sentenced to hard labor for (he term of eighteen years.

They have again appealed, relying upon numerous bills of exceptions, as well as upon certain points made in a motion for a new trial. The latter points are not presented in a proper form for this court to pass upon them. No bills of e.\-ceptions were taken with reference to them, and they have not been, and, as the record stands, could not he assigned as errors. Const. Art. 62; State v. Faut, 2 An. 837; State v. Nelson, 3 An. 497; Stale v. Brown, 4 An. 505; State v. Romero, 5 An. 25.

There was no necessity for a new arraignment of the prisoners, as they had previously pleaded to the indictment. By statute, an indictment for murder involves the charge of manslaughter, and they must be presumed to have been tried, the second time, for the latter offence, of which they were found guilty. They interposed no plea of autrefois acquit, or autrefois convict, when they were brought to the bar for trial.

1. The first bill of exceptions relied upon in the argument of the defendants’ counsel, was taken to the refusal of the Judge to compel the Attorney General to elect between two of the counts of the indictment, one alleging the death of the party killed by beating, and the other by drowning.

All the counts charged the prisoners with the same crime, to wit: tho murder of the deceased. The mode of killing is not material in the constitution of the offence, moriendi mille figures ; 3 Green Ev., Sec. 140. But the various modes were properly charged in different counts. No authority has been cited to show that the Government could be driven to an election between counts all tending to the same conclusion against the same parties, and we see no reason for establishing such'a doctrine. It is true that a person indicted for one species of killing, as by poisoning, cannot be convicted by evidence of a species of death entirely different as by shooting, starving, or strangling; 2 Russell on Crimes, 712. But where various acts of violence are committed upon a man, as beating with a colt, and throwing him into a river, from either or'all of which death ensued, it would be a singular rule of practice to narrow the judicial inquiry to a single act, where all the acts are clearly set forth in various counts, so as to put the accused fairly upon his defence.

The counts did not charge the acts to have been done in different places. In all, the venue was laid in the parish of Orleans, within the jurisdiction of the First District Court of New Orleans. This was sufficient, and there is no inconsistency in the counts in this particular. State v. Nolan, 8 Rob. 516 ; State v. Moore, Ib. 524.

2. The Coroner’s inquest was properly admitted in evidence, for a restrictive purpose, under the authority of the case of the State v. Parker, 7 An. 84.

3. A bill of exceptions was taken to the evidence of one of the State witnesses who testified, that “ he heard the keeper of the Stone Coffeehouse remark in the presence of Wiliam Johnson, one of the accused, that said Johnson had acknowledged to him, that he had accompanied the deceased from the Stone Coffeehouse on the morning of the alleged murder, some few squares up the street, and left him in the hands of a police officer, and that upon hearing this remark, the said Johnson did not deny it.”

The only objection made to the evidence, was, that it contained a tacit admission, which was not known in the criminal law.

Undoubtedly such evidence should be received with the greatest eircumspee». tion. But the implied admission here was not an admission of guilt, but an admission of a distinct fact, to wit: that the accused had acknowledged to the. keeper of the Coffeehouse, that he had been in company with the deceased on a certain morning, and left him with a police officer. The rule is, that this sort of' evidence should not be received, unless it consists of direct declarations of that, , kind which naturally calls for contradiction, and which by his silence, the party-acquiesces in. 1 Green Ev., Sec. 199. The rules of evidence with regard to. voluntary admissions, are generally the same in civil and criminal cases. The-term admission, in criminal cases, being applied to those matters of fact which, do not involve a criminal intent. 1 Green Ev., Seo. 170. Lord Erskine said¡ that “a fact must be established by the same evidence, whether it is to be fol-. lowed by a criminal or civil consequence;” but the intent is a very different thing, and cannot be established by a tacit admission. Here there appears to. have been an extra judicial conversation between persons in presence of the-prisoner, where tho prisoner was stated to have acknowledged a certain fact,.in-itself involving no guilt, to be true, and he acquiesced by his silence; he was naturally called upen to deny it, if he had not made the statement attributed to him, and it does not appear that anything rendered it impertinent for him to do so. Under these circumstances, it cannot be said that the evidence was wholly inad-missable. State v. Rawles, 2 Nott & McCord, 381; Commonwealth v. Francis Call, 21 Pick. 522.

4. The only remaining bill of exceptions was taken to a portion of the charge of the Judge, to wit: that wherein he referred to the case of Dr. Webster, in Massachusetts, as being a ease depending wholly upon circumstantial evidence, followed by a verdict which was correct, to the cases in Phillips’ Treatise on Evidence, where certain persons were convicted on circumstantial evidence, who afterwards turned out to bo innocent, but who still at the same time, were legally convicted, to a remark that such cases were often cited to frighten juries into verdicts of acquittal, and to his proceeding further to argue and illustrate the case.

In all this, we think the Judge limited himself to giving the jury a knowledge of the law applicable to the case, ashy statute it is made his duty to do. Sess. Acts 1853, p. 249.

The doctrine of circumstantial evidence is only illustrated by cases, and so long as the Judge abstained from alluding to the particular facts of the case before him, or giving the jury any opinion as to his impression of the facts, he w'as acting within the line of his duty to refer to the examples found in reported cases and the laws deducible therefrom.

It is therefore ordered and decreed that the judgment of the District Court be affirmed with costs.


source: Caselaw Access Project

author: Spoitobd, J.

license: Public Domain

text:
    The State v. Chopin.
    The charge of the Court to the jury should not be excepted to generally. The objectionable parts should alone be noted.
    The accused asked for instructions to the effect that a person believing his life to be assailed and in immediate danger from another, is excusable in law in resisting and killing a third person who interferes to disarm him forcibly with a view to bring about a fight without weapons, between accused and another, after being warned to stand off, Held: the instructions make the party’s justification depend upon a mere belief of imminent danger, without stating that there should be reasonable grounds of belief; nor do they present the case of a third person confederating with the first as. sailant, or aiding him to make a dangerous assault upon the accused, which would be necessary to sustain his plea of self-defence. The refusal to give the instructions was proper.
    The wrong doing of a third person who interferes in a fight between two, not to prevent, but to encourage it, will not excuse either of the combatants for killing him.
    by defendant from the District Court of Pointe Coupee, Cooley, J

      Morse, (Attorney General) for the State.

      Farrar and Provosty, for defendant and appellant.
   Spoitobd, J.

The defendant, James B. Chopin, has appealed from the judgment of the District Court, for the parish, of Pointe Coupee, whereby he was sentenced to seven 3'ears’ imprisonment in the penitentiary, for the crime of manslaughter, in killing James Yauqhan.

Upon the trial, his counsel requested the Judge to reduce his charge to the jury to writing. This was done, and the charge covers several pages of the record. It is learned and elaborate, and, in our view, was not erroneous to the prejudice of the appellant, in the only part which has been objected to in the argument, of his counsel,

The defendant took a bill of exceptions to the entire charge without specifying in the bill any particulars wherein it was complained of. We do not wish to he understood as countenancing this practice. It is calculated to embarrass, if not to defeat, the administration of justice. The attention of the District Judge should be called to those parts of his charge which are deemed objectionable, that he may have an opportunity to explain them if misunderstood or modify them if erroneous, or, at any rate, assign his reasons for making the charge in the form objected to.

We think that the Judge did not err in refusing to give the 2d and 3d instructions asked for by the prisoner’s counsel. They were to the effect that a person believing his life to be assailed and in immediate danger from another, is excusable in law in resisting and killing a third person who interferes to disarm him forcibly, with the view to bring about a fight between the other two without weapons, after being warned to stand off.

There are two objections to the instructions asked. They make the party’s justification depend upon a mere belief of imminent danger, without stating that there should be reasonable grounds for such belief; and again, they do not present the case of a third person confederating with the first assailant or aiding him to make a dangei’ous assault upon the accused, which would be necessary to sustain his plea of self defence.

We are also of opinion that the Judge did not err in refusing to give the 1st, 5th and 6th instructions asked by the counsel of the accused.

They tended to establish the doctrine that the Wrong doing of a third person who interferes in a fight between two, not to prevent, but to encourage it, will excuse either of the combatants for killing him, because his death, in that case would he the result of his own illegal act.

This doctrine would he a dangerous innovation upon the law, which, in its regard for the sanctity of human life, will not excuse the slaying of a wrong doer, unless the wrong is of such an enormous nature as to render the killing to all appearances necessary but the circumstances put in the bills of exceptions do not disclose such an apparent necessity in the present case.

The 4th bill of exceptions appears to have been abandoned in argument. The Judge did not err in qualifying his instructions as therein stated. 3 Green-leaf’s Ev. § 129.

Before going into trial, the prisoner moved for a continuance to procure the testimony of one Durham, and in his affidavit set forth the facts which he expected to prove by him. Thereupon the attorney for the State agreed to admit that if the witness were present he would testify to the facts alleged in the affidavit, and the accused waived his motion for a continuance, and went to trial. The affidavit was offered in evidence by the prisoner, but on the1 objection of the counsel for the State, the Court refused to permit the following allegation which formed a part of it, to go before the jury as evidence, viz: “ That Durham was present, and, from what he saw, considered that affiant was acting in self defence throughout.”

This refusal of the Judge is the subject of the last hill of exceptions tendered by the prisoner’s counsel.

There was no error in the ruling. The admission was that the witness, if present would testify to the facts alleged in the affidavit. This was not a waiver of legal objections to such portions of the evidence as would be incompetent were the witness on the stand. The witness’ opinion of the law of self defence was not competent evidence and was properly rejected.

For the reasons already assigned, we think the motion for a new trial, so far as it is subject to the review of this tribunal, was correctly overruled.

It is, therefore, ordered and decreed that the judgment of the District Court be affirmed with costs.


author: VookiJíes, J.

text:
    Clannon v. Calhoun.

      lit ati action on a promissory note plaintiff must mate out ills title to it.
    from the District Court of Jefferson. Burtfie, J.

      Durant & Rornor, for plaintiff and appellant

      Larue & Van Dotson, for defendant
   VookiJíes, J.

The plaintiff alleges that he is holder and owner of a certain note for the sum of six hundred dollars, drawn by John Oalhoun to the order of and endorsed by Gharles R. Shaw, dated at New Orleans on the 27th January, 1849, and payable ninety days afterdate; that on the day of its maturity it was duly protested for non-payment, of Which due notice was given to the endorser, Shaw.

The note appears to have beeri endorsed specially by Shaw to the order of Allen Rill, and by Allen Rill to the order of the City Bank of New Orleans? ■ and at the request of the latter protested for non-payment. The signature of Allen Hill as such endorser is stricken out. It is neither alleged nor proved by whom, and at what date this note Was transferred to the plaintiff. In a former action brought Upon it in the Sixth District Court of New Orleans, on the 26th of April, 1854, and dismissed upon exception, which is in evidence, it is alleged by plaintiff that he is holder and owner of the note “left with him as collateral security, and which he feels bound to sue on to avoid prescription.” But it is not alleged what was the nature of the principal obligation for which it was left with him as such collateral security, and by whom, and at what time it was so left. On the 3d of July, 1850, the defendant made a voluntary surrender of his property to his creditors in the Second District Oourt of New Orleans, and by a judgment thereon rendered on the 29th January, 1851, was fully discharged from all liabilities to his creditors in accordance with law. Gharles R. Shaw appears to have been placed on his bilan as follows :

“ One note due 27-30 April, 1849, favor O. R. Shaw, $600.”.

The defendant pleads his discharge as a peremptory exception or bar to the plaintiff’s right of action.

The Court below gave judgment for defendant, and plaintiff has appealed.

We think it is a sufficient reason for not disturbing the judgment that the plaintiff has not made out a title to the note. On its face and as the evidence stands, its title is not in the plaintiff.

It is, therefore, ordered and decreed that the judgment of the District Court be affirmed with costs in both Courts.

Re-hearing refused.


author: Spoftokd, J.

text:
    The State v. Slave Dick.
    Challenges for cause must be made before the juryman is sworn.
    On the trial of a slave, under the Act of 1846, it is competent for the jury to decree that he should “ be sentenced to perpetual wn^risormmt, and it is to be inferred from such a decree that the jury intended the convict to be sentenced to hard labor for life in the State Penitentiary. The sentence by the magistrate of the convict to the Penitentiary for life is authorized by such a verdict.
    PPEAL from Justice of the Peace of the parish of St. Bernard.
    ÍJL FoulMuze, for defendant.

      Lombard, District Attorney,- for the State.
   Spoftokd, J.

A jury, organized under the Act of June 1st, 1846, to try the slave Dick, accused of a felonious assault upon a white woman, found the following verdict: “Guilty, without capital punishment; to be sentenced to perpetual imprisonment.” Whereupon the presiding Justice sentenced the accused “ to be safely conducted and lodged in the State Penitentiary for life.”

The slave has appealed.

The objections urged, upon the motion for a new tria!, to the competency of some of the jurors, if they ever had any weight, cannot be listened to here. The accused suffered the jurors to be sworn without offering any challenge for cause, and could not be permitted to take the chances of a verdict in his favor, reserving a right to object to the jurors if the verdict went against him. State v. Isaac, 3 An., 360; State v. Dick, 4 An., 183; State v. Jerry, 4 An., 191; State v. Jackson, 6 An., 596.

It is alleged that section 9 of the Act of 1st June, 1846, (Session Acts, p. 114,) prescribes only two kinds of punishment to be inflicted upon slaves convicted under its provisions, to wit: death and corporeal punishment, and that, therefore, it was not competent for the jury to decree that the defendant should be sentenced to perpetual imprisonment.

But in the case of the State v. Lewis, 3 An., 398, it was held that section 7 of the Act of 6th April, 1843, (Session Acts, p. 92,) was not repealed by the Act of 1st June, 1846, (Session Acts, p. 114.) The same doctrine was reiterated in the State v. Jackson, 6 An., 595, The 7th section of the former statute declares “ that in all eases where capital punishment or imprisonment at hard labor for life is inflicted for any crime committed by a slave, the jury trying the same shall, in its discretion, pronounce sentence of death, imprisonment at hard labor for life, or for a shorter term in prison or in irons at the service of his master, or order that corporeal punishment be .inflicted.” Under this provision, the judgments sentencing the slave Lewis to “ imprisonment at hard labor in the Penitentiary for twenty years ” for the crime of murder, and the slave Jackson to “ imprisonment for life in the Penitentiary.” for the crime of arson, were affirmed by the Supreme Court.

It is alleged as error apparent upon the record that the jury found the prisoner “ guilty, without capital punishment; to be sentenced to perpetual imprisonment,” and that the Justice sentenced him to the Penitentiary for life, which sentence was unauthorized by the verdict. But although the Act of the 29th May, 1846, (Session Acts, p. 118,) authorizing juries to qualify their verdicts in capital cases by adding the words “ without capital punishment,” was intended for the government of free persons alone, yet the use of that formula by the jury in this ease is a sufficient indication that they thereby intended that the convict should be sentenced to hard labor for life in the State Penitentiary in accordance with the 2d section of that Act. A similar inference was drawn from a similar verdict in the case of the State v. Jackson, already cited, where the court remarked that the intention of the jury was palpable to punish the convict with perpetual imprisonment, and it was not for the slave to complain that the jury extended to him the leniency expressly provided for free persons, and in the same form.

The omission of the magistrate to insert the words “ at hard labor ” in the sentence, even if it exonerated the defendant from that part of the penalty of his guilt, could not, for the same reason, be assigned by him as error.

But that omission, in the present case, amounts to nothing. His sentence to the State Penitentiary for life implies that he is to be subjected to the treatment prescribed for other slaves confined there for crime.

The 14th section of the Act of 1846, relative to the trial of slaves, declares that “no proceedings in accordance therewith shall be annulled or impeded-by any error or form therein;”

As to the suggestion that the owner may be deprived of compensation for his slave by the course complained of, it is sufficient to refer to the 2d section of the Act of 4th May, 1847, (Session Acts, p. 216,) amendatory of the Act of 1st June, 1846, which provides “that the Auditor of Public Accounts shall issue his warrant in favor ©f the owner of any slave who may have been or shall be convicted of a capital crime, on proof of the execution of such slave, or of delivery of said slave into the State Penitentiary,” etc., etc.

It will also be observed that this Act contains a legislative recognition of the doctrine afterwards announced in the State v. Lewis, that the anterior laws relative to the punishment of slaves by imprisonment in the Penitentiary were not repealed by the Act of June 1st, 1846.

The judgment is affirmed with costs.


author: . Spoffoed, J.

text:
    Same Case.
    kN an application for a re-hearing.
   . Spoffoed, J.

It is too late to make a new assignment of errors. The application for a re-hearing is refused.


author:
Ogden, J.
      Durant & Hornor,

text:
    Donovan v. Owen and Ihmsen.
    The right of appeal exists from an order of the court granting leave to discontinue a suit.
    The court has no power to revise the award rendered by amicable compounders. The party in whose favor the award is, has the right to claim for it the effect of a definitive judgment. O. P., 46.
    Prom a judgment rejecting the award on the ground of informality, an appeal lies, because the judgment is final.
    It is sufficient to annul the award of amicable compounders that no oath was taken by them. 0. P. 448.
    If a party pleads in reconvention, he can prosecute it notwithstanding plaintiff discontinues his
    C. 0., 8072.
    PPEAL from the Eourth District Court of New Orleans, Reynolds, J.
    Xi Durant & Sornor, for plaintiff.

      Oohen, and O. B. Duncan, for defendants and appellants:
    If parties agree to leave a case to be decided to persons whose report shall be the judgment of the court, no formalities nor oath required ; Taloott v. Ma-Ribben, 2 Martin, R. 804. Though that case was decided under the old code, yet its provisions were the same as in the new code ; see old Code, page 442, Articles 12 and 13, -which required oath from amicable compounders. Where referees are chosen by the parties without any rule of court, the court will not attend to any application to set aside the award; 1st Johns. Rep., 315,493 ; 9th Johns. Rep., 212. To the same effect see Caldwell on Arbitration, pp. 556, ’7, 95, ’6. The case in 15 L. R., 426, relates to experts, not to amicable compound-er’s. The Judge may refuse his exequatur, if t'ho award is contrary to public order or good morals.
    Billemie “ de l’arbitrage.” 404, ’5, 6. Action of nullity of judgment may be instituted by Donovan on the grounds set forth in Code of Practice, 604, 607, 613.
    Award cannot be excepted to for want of precision in stating the fact on which it is grounded; 10 L. R., 199.
    No prescription nor intendment is allowed to overturn an award; Kyd, 227 ; 3 Atkins, 374; 5 Atkins, 529.
    Nothing but corruption or misconduct pleadable against the award; 2 Johnson, R. 62 ; 3 Johnson, R. 367 ; 10 Johnson, 163 ; 3 Caine, 166; 9 Johnson R., 212; 2 Cowen, 425.
    Misconduct means wrongful intention; 10 Wendell, 589 ; 3 Paige, 1 4.
    Whatever has been honestly done in relation to matters actually referred to the decision of amicable compounders, cannot bo revised or altered by a court of justice. The award can only be attacked for fraud or usurpation of power on the part of auditors ; Code of Practice, 459, 460; C. 0.3077, 3096; Qobb v. Parham, 4 Annual, 148 ; citing 17 La., 285, and 7 La., 477. S. P. The opinion of the court, pronounced by Mr. Justice Slidell in Bird v. Laycodk, 7 Ann., 173, ’4; citing Danis v. Leeds, Ganty v. Beal. Partidas, title 3, Lex. 23.
   Ogden, J.

The defendants are appellants from a judgment of the lower court dismissing a rule taken by them, and rejecting the report of amicable compoun-ders selected by the parties to decide the matter in dispute between them, and also from an order of the lower court granting leave to the plaintiff to discontinue his suit.

The Plaintiff took outan attachment in a suit against the defendants for services rendered to them as their agents in selling and delivering coals, and making disbursements and advances for them.

The only defence set up in the answer of the defendants was the plea of the general issue. The parties then entered into an agreement that one W. T. Richards should he there one week from the date of that agreement, fix the amount due by either of them to the other, and that the decision thus made by Richards should be entered up at once'by the judgment of the Court without appeal.

This agreement was entered into on the 1st of February, 1853, and on the 3d of February, 1853, it was modified by a further agreement to the effect that D. W. Cerode should act with Richards, with power in case of disagreement to name an umpire. In this second agreement it was expressly stated \hat Richards and Cerode were to be considered as aniicable compounders. On the 5th February, 1853, the amicable compounders filed their report in which they state that after a careful examination of all the vouchors and accounts pertaining to the business between the parties, they find that D. T. Donovan is justly indebted to Owen & Ihmsen in the sum of twenty thousand one hundred and forty-eight dollars and fifty cents.

The defendants took a rule on the plaintiffs to show cause why the report should no t be homologated, and judgment entered up against them in conformity with it. For answer the defendants set up several objections, and among others that the arbitrators were not sworn as required by articles 3078 of the Oivil Code, and 448 of the Code of Practice. The Court below sustained the objections, and rejected the report of the plaintiff, and then, on leave granted, discontinued his suit.

It is contended by the appellee’s counsel that the correctness of the judgment of the lower court in rejecting the report of the arbitrators, cannot be inquired into by us, and that the motion to dismiss the appeal on the ground that such a judgment is not a final one, ought to have been sustained. In passing upon the motion to dismiss the appeal, wo only noticed the point as to the right of taking an appeal from an order granting leave to discontinue, and being of opinion that such right existed, it was unnecessary at that stage of the case to decide any other point. The case of Roman v. Kernion & Forstall, cited by the appellee’s counsel, was different from this. That was a case of the report of auditors appointed to examine accounts. It was held that the order of court homologating the report was not such an order as could bo appealed from. The case of an award rendered by amicable compounders, is altogether different. The court has no power to revise their award. If the proceedings have been regular, the party in whose favor the award has been rendered, has a right to claim for it the effect of a definitive judgment. O. P. 46. From a judgment rejecting the award on the ground of informalities, the party in whose favor it has been rendered has a right to prosecute an appeal, because the judgment is a final and definite one as to the right claimed by virtue of the award. If on this appeal it could have been shown that all the formalities required by law after the parties had entered into the submission, had been complied with, the defendants would have been entitled to a judgment in their favor for the award. Without noticing however all of the informalities complained of, it is sufficient to state that it appears no oath was taken by the arbitrators. This objection was sufficient to annul the award. L. C. 3078; C. P. 448 ; Locke v. Dakin & Dakin, 15 L. R., 426, and 9th An. By the agreement between the parties, the time for the submission was limited to one week, and if it had not been so limited, the power of the arbitrators could only have continued in force during three months. C. C., Art. 3072. The consequence therefore of the rejection of the award was that unless a new submission had been voluntarily entered into, the ease was withdrawn entirely from arbitration. If this claim of the defendants, which was submitted to the amicable compounders, had been pleaded in the defendants’ answer by way of reconvention, the defendants would have been allowed to prosecute it notwithstanding the plaintiff having discontinued his suit. As, however, no such demand was set up in the pleadings, the consequence necessarily followed, that the suit was at end when then plaintiff discontinued.

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

Durant & Hornor,

for a re-hearing.

The counsel for D. T. Donovan, plaintiff and appellee, asks for a re-hearing on so much of the judgment of this court rendered herein on yesterday, 7 May, as goes to decide that an appeal lies from a discontinuance.

The case of syndics of Brunett v. Shaumburg, 1 N. S., 098, may indeed be taken as a true exposition of the practice of the state before our present code of practice was introduced, and it says: “The order is a judgment which is final in the suit; for it puts an end to it as a judgment of non-suit.” The law, however, has since been changed. The O. P., art. 491, says “ the plaintiff may, in every stage of the suit, previous to judgment being rendered, discontinue the suit on paying the costs.” This expression makes the act of discontinuance discretionary with the plaintiff, and the judge cannot refuse him; it is no longer as in 1 N. S., the same as a non-suit; “ the plaintiff was at liberty” says the Court, in Crocker v. Turnstall, 6 Rob., 357, “ to discontinue his action before judgment; but he could not claim as a right to be non-suited, and thereby control the final decision of the cause.” Hence the discontinuance and the non-suit being no longer the same thing as in 1 N. S., that decision is no longer a guide; and indeed it conflicts with Pettit v. Gillett, 5 Martin, 20, and Hunter v. Smith, 5 N. S, 104; both of which we beg the court to refer to.

The O. P., makes a discontinuance the mere act of the plaintiff like the filing a petition. Ho may institute his claim ; he may abandon it; in neither case is there a judgment, and it is from a judgment alone that an appeal lies. It is true that the court grants leave to discontinue, but the practice is founded rather on custom than on positive law, and the leave is a mandate and not a judgment. “The action of a court, on a motion to discontinue,”says the Supreme Court in Morgan v. Whitesides, 11 L. R., 280, “ cannot be viewed in the light of a judgment. It decides nothing between the parties, &c.”

There is no definition of a judgment which will meet the case of a discontinuance, “-and certainly a judgment is called, an order which the judge makes against one of the parties, by reason of the cause which is moved before him.” Partida Tercera, Tit. 22, Log. 1.

“A judgment (sentencia) in a decision or determination” see the definition of interlocutory and final judgments in Pobrero. Yol. 4, Chap. 15, p. 220. Edition of Yaloncia, 1828.

“Judgment, e’est la decision d’une contestation donné par un juge, entre per-sonnes qui no sont pas d’accord.” Merlin, verbo jugement, vol. 16, p. 158.

“ Judgements are the sentence of the law, pronounced by the court upon the matter contained in the record. 3 Blackstone’s Com. page 395.

Under the definitions of no system of law can the discontinuance of a cause, it will thus be seen, be deemed a judgment. Now, “an appeal is the act by which one of the parties to a suit has recourse to a superior tribunal, in order to have t\v¡ judgment of an inferior court corrected,” O. P., art. 564, and that only is a judgment which decides something between the parties; but a discontinuance decides nothing between the parties; therefore a discontinuance is not a judgment and from it there is no appeal.

Re-hearing refused.


author: Buchanan, J.

text:
    Labarre et al. v. Hopkins.
    Where a wife by her will has limited the usufruct of her separate estate to her husband until his second marriage, the limitation is not unlawful or void as being in restraint of marriage.
    Devises in restraint of second marriages are not opposed to the policy of our law, nor are they contrary to good morals.
    from the Third. District Court of New Orleans, Kennedy, J.

      Johnson, for plaintiffs.

      Rand & Finney, Benjamin & Micou and Eggleston, for defendant.
   Buchanan, J.

Mrs. Ezilda Volant Labarre, wife of James A. Hopkins, made her will, which has been duly probated, and in which are the following clauses: “Je donne et légue A Leonie LaBrelon mon eselave nominee Edée, négresso ágée d’environ vingt-trois ans, avec ses deux enfans nommés Sainville et Marie Louise.

“ Je donne et legue á mon mari, Mr. James Hopkins, la jouissanee pleine et ontiére de tous mes autres biens, sans exception ni reserve, tant qu’il ne se ro-manera pas; mais dans le cas oü il viendrait a. se remarier, j.e veux et entends que ces mémes biens soient partagés entre les membres de ma famille, confor-mément aux dispositions des lois de eet Etat.”

Mrs. Hopkins died on the 26th January, 1849, and her husband married again on the 15th May, 1851. The plaintiffs, heirs at law of the deceased Mrs. Hopkins, claim of the defendant to be put in possession of the estate of his deceased wife, in conformity to the dispositions of her will. The defendant excepts that the limitation of his usufruct under the will to the time of his second marriage is unlawful and void, as being in restraint of marriage, and is reputed in law not written. It is admitted that all the property left by Mrs. Hopkins was her separate .estate.

Before examining the point of law involved in this issue, we must dispose of a point of practice raised by a bill of exceptions of defendant to the admission of .evidence to prove a material fact in plaintiffs’ case, after he had closed his evidence. Prom the statement of plaintiffs’ counsel appended to the bill, and which the Judge .certifies to be correct, it seems doubtful whether plaintiff had formally declared his case to be closed before this evidence was .offered. The very unusual period of eight months elapsed between the reception of the evidence and the talcing of a bill of exceptions, and the recollection of parties might well differ as to the circumstances. At all events, it seems clear that the clerk had not made an entry of the closing of the plaintiffs’ evidence. Great latitude of discretion has been allowed to the courts of the first instance in the application of the Articles 476, 477 and 484 of the Code of Practice. See 6th La. Rep., 450, Stone v. Carter. This discretion does not appear to have been improperly exercised in the present instance.

Regarding it, then, as proved that James A. Hopkins has married again since the death of the testatrix, we find no text of the law of Louisiana which is violated by the term which she has thought fit to assign by her will to her husband’s usufruct of her separate estate. The 603d Article of the Code declares that a usufruct, if limited by its title to determine in the event of a condition, terminates upon the happening of that condition.

By analogy, second marriages by no means appear to be recognized by, or, to say the least, do not appear to be special favorites of the law of Louisiana. If a donation have been made, mortis causa or inter vivos, by one of the spouses to the other, in full ownership, and the legatee or donee contract a second marriage, children of the first remaining, his estate in the thing given or bequeathed, is reduced, by operation of law, from an ownership to an Usufruct; and the same change takes place, if the thing have been bequeated by a brother or sister of any of the children of the first marriage which remain. C. C., 1746. Again, by the statute of 25th March, 1844, (Session Acts. No. 152,) in all cases when the predeceased wife or husband shall have left issue of the marriage with the survivor, and shall not have disposed by last will of his or her share in the community property, the survivor shall hold in usufruct, during his or -her natural life, so much of the share of the deceased in the community properly as may be inherited by such issue, provided, however, that such usufruct shall cease whenever the survivor shall enter into a second marriage.

These extracts from our statute book seem to demonstrate that devises in restraint of second marriages are not opposed to the policy of the law of Louisiana. And here we might conclude, for the plea of defendant has gone no farther than to assert the devise in question to be void, as being contrary to law. But the argument of his counsel has taken a much Wider range. It is contended that the limitation of plaintiffs’ usufruct by his wife’s will is void, and to be taken as not written, because it is contrary to good morals. The Article 1506 of the Code, upon which this argument is based, is copied verbatim from Article 900 of the Code Napoleon. The application of this article to the ease of a devise restrictive of marriage to particular classes and circumstances, or prohibitory of marriage absolutely or qualifiedly, of maids or widows, has afforded a fine field for the casuistical propensities of French commentators. Those who are curious upon this head, may see the authorities collected in the Repertoire du Journal du Palais, verbo Conditions, Nos. 166 to 168, and in the treatise of Saintespés Lescot on Donations and Testaments, Nos. 126 to 136. The doctrine which may now be considered as established in France is, that the prohibition of marriage generally is contra bonos mores, but that the prohibition of a second marriage, whether there remain children of the first marriage or not, is not to be so considered. It is thus concisely summed up by Toullier, Yol. 5, Nos. 256 and 259: “ On a toujours regardé comme contraire aux bonnes moeurs, la condition absolue imposée au donataire, de quelque sexe qu’il soit, de ne point se marier.’r “Aprés quelques variations dans la legislation romaine, la condition absolue de ne point se remarier fut regardée comme licite par la Novello 22, chap. 44, et eette Novelle formait le droit commun de la France. Sous l’empire du Code Civil, eette condition ne doit pas étre regardée comme contraire aux bonnes mceurs ou comme contraire aux lois.”

We think the decision of the District Court correct in what relates to the “quarte du conjoint pauvre.”

Judgment affirmed, with costs.


text:
    Successsion of Joseph L. De Bellisle.
    1. A donation made by a contract of marriage in these words: “ he makes also a donation pure and simple to his future wife, her heirs or their descendants,-in case his-future wife should die before him, of a sum of five thousand dollars, which donation shall take effect at the decease of the future husband, and shall he paid out of the most liquidated (available) funds of the succession of the future husband,”-must be understood as meaning that the donation is made to the wife, in case she survives the husband, and to her heirs, in case she dies before her husband.
    2. Even admitting that the clause partakes of the character of a donation mortis ca/usa, it cannot be considered invalidated by Art. 1563, 0. 0. That article, which prohibits dispositions mortis cama being made, except in the form required for acts*of last will and testament, must be considered as controlled by the subsequent Articles 1728 and 1738, taken in connection with Articles 2806, 2316, and 2308.
    8. The expression in Article 1728, “ may give the whole or apart of the property they shall have at their decease,” cannot be restricted to an institution of heir either universal or by universal title. The word “ part ” does not mean an aliquot part only, but any portion taken by itself and without considering its relation to the entirety of the succession.
    4. Article 1514 0.0., is one of the four referred to in Article 1519, Article 1515 having, by a mistake of the compilers of the Code, been inserted in the wrong place.
    5. There is nothing in the donation in question which resembles a prohibited substitution.
    PPEAL from the District Court of the parish of Assumption, Cole, J.

      Malhiol and Mills, for the administrators, appellants.
    On the 19th of September, 1830, the Lite Joseph L. De Billisle and Marie Azile Dulion, then widow Augustin Le Blanc, entered into a marriage contract, by which, after enumerating the property respectively belonging to each, the said Joseph made to the said Marie, the following donations:
    “ En consideration du futur mariage lefulur époux declare faire entre vifs pure et simple et irrévocable a la future épouse eomme un témoignage de l’affection qu’il lui porte, ce que la future épouse accepte avec reconnaissance, lo d’une somme en espéces de deux mllle piastres. 2o. d’une autre somme de sept cents piastres destinée pour l’achat d’une esclave, kquelle sera achetée au nom de la future épouse par acte authentique et deviendra son bien dotal. 3o. II fait aussi donation pure et simple á la dite future épouse ses héritiers ou leurs descendants dans le cas oú la dite future épouse mourrait avant lui d’une somme de cinq nol-le piastres, iaquelle donation aura effet au décés du futur époux et sera prélevée des biens les plus liquides de la succession du dit futur.”
    The administrators and heirs of said Joseph Bellisle, submit, that said donation of five thousand dollars is null.
    The validity of a donation should be tested by first examining its nature; for, although a donation, in its nature a donation mortis causa, be passed in an aei and form of one inler-vivos, it is yet none the less to he considered a donation mortis causa, requiring for its validity the forms essential to such donations.
    The first two donations of $2,000 and $700 are, in their nature, and as they are termed in the act, donations inter vivos, pure el simple, and irrevocable.
    The donation of $5,000 is made “ ala dite future épouse ses hérétiers ou leurs descendants dans le cas vu la dite future épouse mourrait avant lui.” This donation (whether inter vivos or mortis causa,) if grammatically considered, is made under a suspensive condition, to wit: the death of Marie Duhon before the donor.
    That the death of the apparent donee may form a suspensive condition, Duranton clearly shows. Tins author says, in Titre, 2 Donation, vol. 5, p. 297; “Par exemple je legue k Paul dix millefrancs, s’il n’embrasse pas l’état ecclési-astique, il faudrait, stricto jure, attendre sa mort, pour juger si la condition s’est ou non aecomplie; et en supposant l’affirmative, le legs ne serait payable qu’é. ses héritiers. Mais il ne faut pas confondre ce cas avec celui d’un legs fait á quel qu’un iorsqu’il monrra, cummorielur; e’est un legs á tenue et voilá tout, En réalité e’est iéguer aux héritiers du ltgataire, et eependant le legs est valable.” And adds the author, “ Oes décisions étaient suivies dans notre ancienne jurisprudence, et il n’y a aueun motif s'en eloigner sous le code,” vide also, Ricard des Disposition Conditionnelles, No. 301, et suivans.
    The $5,000 donation was made, therefore, not to Mrs. Bsllisle, but only to her heirs or their descendants, and under a suspensive condition. This condition having failed by the pre-decease of the donor before his future wife, the donation falls.
    It is, however, contended by counsel of plaintiff that the clause, “dans le cas vu, &c.,” creates no suspensive condition, but only a “substitution vulgaire,” in favor of the donor’s heirs or their descendants; and that it should be interpreted as if written thus: The donor gives pure and simple to said Marie Duhon $5,000 : but, if she should die before him, then and in that case, the said donation shall go to her heirs or their descendants.
    Though such an interpretation might be given to the donation, if required, for its validity — validity in its nature and substance, not as regards its essential forms —under the rule, commodissimum esl, id accipi quo res, de qua agilur, magis valeat quampereat; yet no such necessity exists, because, 1st, the donation, as shown by Duranton, is, in its nature, legal, and its language grammatically construed clearly makes the clause, “dans le cas vu,” form a suspensive condition,and 2d, the interpretation which converts the clause into a “substitution vulgaire,” renders, as admitted by the plaintiff’s counsel, a part of the donation null.
    If it be said, that it was evidently the intention of the donor to give to his future wife, as he would not likely, by marriage contract, make a-donation which should pass only to her heirs, it may be replied, that, nevertheless, so the donor has seen fit to give, and also, that he could not be supposed to make, by marriage contract, a substiution vulgaire expressly prohibited by law, C. C. Article 1738.
    Passing to the next clause, we find that the said “ donation aura effet au dices du futur ipoux.” It thus comes within the definition given by the Civil Code to donations ■mortis causa. “ A donatiop mortis causa is an act to take effect when the donor shall no longer exist.” Art. 1455. The donation, therefore, lacking the forms essential to the validity of testaments, must fall under.the rigorous rule of C. C., Art. 1563, by which “ no disposition mojáis causa shall henceforth be made, otherwise than by last will and testament.”
    It is contended, however, by counsel of plaintiff, that to this rule of Art. 1563, an exception is made by C. C. Arts. 1728 and 1738.
    By Art. 1728, “ Fathers and mothers, the other ascendants, the collateral relation of either of the parties to the marriage, and even strangers, may give the whole or a part of the property they shall leave on the day of their decease, both for the benefit of the parties, and for that' of the children to be born of their marriage, in case the donqr survive the donee.”
    Art. 1738 grants to either of the parties to the marriage, the right to make, either reciprocally or the one to the other, the same donations as allowed by Art. 1728, excepting that the donations “ shall not be transmissive to the children the issue of the marriage, in case of the death of the donee before the donor.”
    Are, however, donations allowed by these-two articles donations mortis causa? To solve this question, it is necessary to first examine the nature of the donations authorized by said articles.
    Toullior, (Tit. 2, Donat, vol. 5, No. 830, et suivans,) in commenting on Napoleon Code, Art. 1082, which corresponds with Art. 1728, of Lou. Code, says : “ C’est ce qu’on appelait autrefois institution contractuelle.” “O’est le don do sa succession en tout ou en partie, c’est pour cela que les dispositions de cette nature étaient appelées autrefois institutions contractuelles,” idem No. 836. And throughout the chapter 8th, commencing- on the “Donations de tout ou de partie des biens que le donateur laissera á son décés, Toullier treats such donations, and applies to them the rules common to the “Institution Contractuelle.”
    M. Hutteau, in his Abrégé to Pothier Traités Des Donations, tit. 1, Sec. 1, No. 2, vol. 17, page 291, edition 1810, says: “Les donations par contrat de mariage qui ne sont pas de biens présens, sont ou do biens á venir, ou de biens présens et á venir; ou á la charge de payer, des dettes, ou enfin sont dépen-dantes do la volonté du donateur par la condition qu’il y a imposóe. Cos sortes de donations étaient connues plus particuliérement dans notre ancien droit sous le nom destitution contractuelle. Qui n’ótait autre chose que le ehoix d’un héritier.” But, adds this author, “ Aujourd’hui ellos sont plus restreintes, moins en faveuret plus cireonscriles.”

      Duranton, Titre 2, Des Donat, yol. 9, No. 671, commenting on Art. N. C. 1082, says : “ On appello, dans la doctrine, eette donation, Institution con-tractuelle, parce que, par elle, on institue un héritior, et qu’on lo fait par un contrat d’un mariage irrevocable, ce qui n’a lieu que dans ce soul cas, c’est le don do tout ou partió de l’hérédité.”
    Merlin, (Rep. Yerbo Inst. Oontractuello § 1-3, Edit. 1826,) after referring to the prohibition of the former institution contractuelle by the law 17 nivose An. 2, says : “ Mais Tart. 1082 du Code Civil a rétablie, á cet égard, los dioses sur Panden pied.”
    The donation of Arts. 1082, Nap. Codo, and 1728 Lou. Code, “ de tout ou partie des biens que le donateur laissera au jour de son décés,” being, then, simply the institution contractuelle, it is necessary, therefore, to examine whether the institution contractuelle bo a donation mortis causa, or inter vivos, in order to determine whether it creates an exception to Art. 1563, requiring all donations mortis eausa to be made by last will or testament.
    This has always been a question of much dispute among civilians. Some jurists consider, inasmuch as he who institutes an heir by marriage contract, gives nothing himself while living, but on& after his death, prefers himself to the person instituted ; does not preclude himself from alienating the property comprising the donation ; and as the gift is revoked by the pre-decease of the donee, and there is no need of express acceptance, that the institution con-traetuello partakes more of a donation mortis eausa.

    Others, inasmuch as the donation is made by a contract, is irrevocable, and divests the donor at once of some of the elements of ownership, and therefore approaching- more a donation inter vivos than mortis causa, consider it to be a donation inter vivos, according to the maxim, “Qu’un acto qui participe de deux natures doit ótrc reputé do celle dont il tient le plus. Merlin, Rep. Verbo Inst. Con, Sec. 2; Toullier 2, Titre Don., yol. 5, Nos. 836,837; Duranton 3, Titre Donat, vol. 9, No. 072.
    Merlin, however, defines the institution contractuelle as “ une disposition entro vifs.”
    The Napoleon Code does not in a positive manner determine whether the donations allowed by it in Art. 1082' should be considered as mortis causa or not. And as by its Art. 803, donations are'divided into those inter vivos or by testament, not like Lou. Code. Art. 1453 into donations inter vivos and mortis eausa, the donations allowed by N. O. Art. 1082, might perhaps be considered as mortis causa, although made in the form different from that required for a testament.
    Our Oivil Code, however, in dividing donations into those inter vivos and mortis causa, by excepting marital donations from certain rules appertaining to ordinary donations inter vivos, by positively declaring that “ no disposition mortis causa shall henceforth bo made otherwise than by will or testament,” and without mentioning any exception to this rule, clearly intended to restrict Arts. 1828 and 1838, the institution contractuelle, to donations inter vivos : to such donations as should divest the donor' at present, and irrevocably, of at least some of the elements of ownership, and not to include those which, like the §5,000 donation of Bellisle, should “take effect when the donors shall no longer exist.”
    The Institution Contractuelle, or O. O. Arts. 1828 and 1838, create, therefore, no exception to the rule of Art. 1563, vide also opinion of Judge Porter, in the case of B'oueet v. Bronsard, 6 N. S. 196.
    The Institution Contractuelle, moreover, is in its nature restricted to universal donations, or those under universal title, such as the whole, one-half, one-third, or some other aliquot portion of the donor’s property.
    Merlin defines it as “ une disposition entro vifs ot á titre universo!.” Rep. verbo-Int Con.
    This results from the obligation imposed on the donee, as by O. C. Art. 1731, to pay the debts and charges of the donor’s succession: for, as says Merlin {idem verbo, § XI. 2,) in refuting the doctrine of Buplessis, that an heir instituted by contract of marriage, and who had not caused an inventory to bo made, was not bound indefinitely for the debts of the succession, but only pro-modo emolumentó..

    “L’héritier eontractucl ost constammont, un héritior proprement dit; il Test aulant que eelui qui suecéde en vortu de la loi, or il cat de régle que tout liéri-tier paio les dottes de la succession, sans distinguer si ellos surpassent les biens ou non ; l’institute par contrat de marriage, qui n’a point fait inventaire, est done tenu de tout — ■—-étant héritier dans touto l’éncrgio do ce termo, il repré-sente le défunt tant activement quo passivement.”
    How can a donee of a particular sum, to be taken from the most liquidated portion of a succession, be considered as an heir — a person who, under the definition of 0. 0. Art. 880, “ has become the universal successor of the deceased, who is possessed of all his rights and property, and who is subject to the charges for which the estate is responsible, whether he be such by law, by the institution of a testament or otherwise?” Or how can such a donation of $5,000 be considered a gift of the whole or part of a succession, under Arts. 867 and. 868, by which “ succession signifies the transmission of the rights and obligations of the deceased to the heirs; also the estate, rights and charges which a person loaves after his death, whether the property exceeds the charges, or whether ho has only loft charges without any property?”
    How to a donation, under a particular title, can bo applied the rules universally applied to the Institution Oontractuelle, and by Toullicr, Duranton and others, to Art. 1088, Napoleon Code, Art. 1728, O. 0. How apply the rule of 0. 0. of 1729, prohibiting the donor from disposing gratuitously of the ohject of the donation ? Or how could the donor bar himself from alienating it? Suppose a statement of the debts and charges of Bellisle existing on the day of thedonation had been made, according to 0. 0., Art. 1730; how could the donation bo divided ? Should it be considered of property present, or of future property? How fix the amount or aliquot portion of the debts due by the succession of Bellisle, which are,-under Art. 0. 0. 1731, to be paid by the do-nee ? And as this very donation of $3,000 is considered a charge on the succession, it is respectfully asked, what portion of itself should it bo decreed to pay, under said Art. 1731, which declares the donee “liable to the payment of all charges and debts of the succession ?” Therefore,
    Merlin says: “ Si cependant la déclaration ou reconnaissance ne comprenait qu’un bien particulier, elle ne formerait qu’une donation entre vifs.” Rep. verio Inst. Oon., § VI, No. VI.
    Malleville, commenting on N. 0., Art. 1089, Lou. 0., Art, 1734, says: “ O’est ici une espéce de droit do rotour quo le • code établit en faveur des donateurs, pour les cas montionnésaux articles qu’il designe ; e’est á dire pour la totalitó ou d’une quote de biens, en contrat de mariage, — les donations désignés dans los articles 1082,1084, et 1086 — car ils ne parlent quo de celles-lá, et non de cellos d’une somme fixe, ou d’un objet détorminé.” (So quoted by Hutteau in his Abrégé to Pothier, traités des Donat, vol. 17, p. 322, Ed. 1810.)
    Hutteau says: “Maisune donation d’une certaine portion á venir, ou de biens présens et á venir, etc, peut-elle étre faite á titre particulier ? Nous no le pensons pas. Celui qui donne en vertu des articles 1082, 1084, 1086, ne peut donner a titre particulier; nécessairement sa libóralité est ou universelle ou ft titre universel; autremont, elle ne peut étre qu’une donation entre vifs. “ Cela étant, il no peut y avoir de donataire contractu el á titre particulier, et los donataircs contractuels étant ou universel ou ft titre universel, sont indis-pcnsabloment tenus de contribuor aux dettes dans les proportions que nous vonons d’indiquer.” Abrégé to Pothier, trait. Don. vol. 17, p. 456,Ed. 1810.
    Duranton, commenting on Art. N. 0. 1082, says: “ Par partió des biens quo le donatour laissera au jour do son décés, l’on entend, non pas des objets spe-ciaux et déterminés commeltel fonds, telle maison, en sommos payables de suite ou á une époque fixée, car alors ce serait une donation entre vifs de biens pré-seos, régie par l’artiele 1081, en ce qui concernerait ces objets ou ces sommes; et la disposition qui porterait que la donation consistora en tels objets que le donatour laissera á son décés, sorait pareillement une donation entre vifs avec réserve tacite d’usufruit; la propriété des objets indiques no passerait pas moins de suite au donataire, sans que la donation fut assujettie a la caducité prononcée par ¡’article 1089, on entend done par ce mol — partie, une partió constituant un titre universel; comme serait la moitié, le tiers des biens que laissera lo donatour au jour de son décés.” Droit-Francais, titre 2, Donat., vol 9, Nos. 076, 761.
    Delvincourt asks: “ Quid, si un pére marian-t un de ses enfans, lui donne une somme d’argent á prendre dans sa succession, et avant partage?” and replies, “ cet acte no constituait pas uno donation de biens ft, venir, c’est bien une veritable donation entre-vifs, emportant dessaissóment de la somme donnóe.” Notes et Explications to page 110 ; p. 423, also p. 424,427, 428, 429.

      The $5,000 donation of Bellisle being a donation under a particular title, is not, therefore, an institution contractuelle, nor authorized by C. 0., Arts. 1728, 1738.
    Marcadé, it is true, considers that Art. N. C. 1082, authorizes a donation under a particular title. He says of such a donation (Tit. 11, Don. vol. 4, No. 280), “ Sans doute, ce ne sera plus Iá 1’ancienne institution contractuelle; mais ce sera 1’ancienne donation á cause de mort, ce sera une donation de biens á venir.”
    It has, however, wo submit, been clearly shown by the nature of the rules applied by the Nap. and Lou. Codes themselves to Arts. 1082, N. C., and 1728-38, C. C., and by the commentaries of Merlin, Touilier, Duranton, and others, that the donation allowed by said articles is the institution contractuelle. It eventually was also so considered by Judge Porter in the case before referred to, of Doiieet v. Brovsard, ON. S. 19G.
    The ancient donation, d cause de mort, was, in its nature, the same as the donation mortis causa of our Code. It contained the same two essential characteristics ; it was revocable, and did not divest the donor of any of the elements of ownership over the thing- given till his death. The only change regarding it made by our law was, in requiring it to be made by testament. It essentially differed from the donation of Arts. N. C. 1082, O. C. 1728, in this, that the former was revocable, while the latter is not, vide Merlin, Rep. verbo, Don., Sec. 1, § 1; Touilier, tit. 2, Don. Nos. 6, 7, 11; Duranton 2, titre, Don., Chap. Y, Nos. 6, 7. Nor, as claimed by Marcadé (idem, No. 280,) do Arts. N. C. 947, 943, so affect Arts. N. C. 1082, as to include donations under particular title. Undoubtedly, so far as the institution contractuelle partakes of the nature of “ de bions-a-venir,” the rule of Art. N. C. 943 does not apply; yet the nature of Art. N. C. 1082 is not changed — neither enlarged nor restricted — it still remains an institution contractuelle.

      (Quere. — Is Art. 1514 of Lou. Code included in the exception of Art. 1519?)
    There is, in fact, now, no such donation as the ancient donation des Wens . d, venir. The institution contractuelle is an union des Wens presents et á venir, and Arts. N. C. 1084, Lou. C. 1730, allow the donee, on an annexation of the statement of debts, to renounce and reject that portion of the institution des biens d venir, and reduce the donation to a donation des Wens presens. Touilier, idem, Nos. 855, 850, and note to 855.
    The only remaining question to be solved regarding the $5,000 donation of Bellisle is, whether a donation to take effect at the decease of the donor, and to bo taken from the most liquidated portion of his succession, can be considered a donation inter vivos of present property, allowed by Arts. N. C. 1081, 1092; C. C. 1027, 1037.
    (These articles are subject to the general rules prescribed for ordinary donations, inter vivos, excepting that they are not annulled by want of acceptance, or on account of ingratitude ; they fall if the marriage should not take place, and by the Napoleon Code can include a substitution “ en faveur des petits-enfans du donateur.” Touilier, idem, Nos. 822, 907, N. C. 954,1088, 1081.)
    We consider the rule to be, that if the owner divests himself of the ownership of the object given, and reserves during his lifetime only the usufrv,cl thereof, the donation is inter vivos of present property.
    The donor, if the object bo a sum of money, becomes at once the debtor of the donee for its amount, and all his property, both present and future, becomes pledged to the donee for its payment. If, however, the donor does not, in the act, clearly evince his intention of disseizing himself, and at once, of the thing given; or, of rendering his whole property liable therefor, assigning only the property which he may leave at his death, out of which the donation is to be taken,- — the donation is not inter vivos but mortis causa. As the learned Cochin (lome 4, p. 395:) — ■
    “ Mais il faut en cas que le droit du donataire soit irrevocablement formé sur tous les biens que le donateur posséde pendant sa vie, et que le donataire ne soit reduit á se venger sur les biens qui so trouveront au jour du décés du dona-teur. Ces deux espéces, qui paroissent d’abord avoir quelque connexité, sont cependant essentiellemont différentes; je donne 15,000 livres tous mes biens, dont mon donataire ne poura so faire payor qu’aprés ma mort; cette donation est bonne parce quo tous les biens du donateur on sont chargés, soit qu’il les ait encore au jour de son décés, soit qu’il en ait disposé pendant sa vie. Toutes les dispositions entro vifs qu’il aura pu faire depuis la donation, no pourront nuire au donataire; co droit est irrevocablemont formé, quoique le paiement soit suspendí!. Mais je donne §15,000 liv. a prendre sur les biens quo j’aurai au jour de mon deeds; cette donation est nolle, parce que le donateur laissera au jour de sa niort, le donateur est maitre do disposer pendant sa vie, et qu’il est aussi libre de vendré, engager, liypothéquer pendant sa vie, tout ainsi quo s’il n’avait pas précédemment donné.”
    See also the two arrets, of the 12 Eevier 1734, and 9, Avril 1735, referred to by him, as mentioned by Hutleau, Edition 1810 of Pothier, Yol. 16, p. 250 ; and, also, the arrets mentioned on pages 888, 389.
    The §5,000 donation of Bellisle, therefore, is not valid as an ordinary donation inter vivos.

    We would also draw the attention of the Court to the wording of the three donations as showing- the different nature of the three donations. The first two — those of $2,000 and $700 — are termed “ entre vifs puro et simple et irrevocable,” while that $5,000 — in a distinct sentence separated from the clause containing the other two donations by a period — is termed, not entre vifs and irrevocable, but only pure et simple.
    Another fatal objection to the validity of the $5,000 donation, considered as an ordinary donation inter vivos, is, that it would contain a substitution prohibited by C. C., Art. 1507. Mrs. Bellisle, the donee, though at once seized of the naked ownership of the thing given, yet would bo charged to preserve it during the life of the donor in order that it might be returned to her heirs or their decendants, who are substituted to the donation in case of her decease before the donor.
    True, it would be á conditional substitution; yet, nevertheless, equally prohibited by law ; as adjudged in the case of Rachel tutor v. Rachel and husband, 1 Rob. 117; Toullier, tit. 2. Donat. Vol. Y, Nos. 36, 37, and note.
    There are other points which might be raised against the validity of this donation, such as the evident intent of the parties to derogate from the legal order of succession, as the clause, “ Les héritíers ou leurs descendants" evidently referred, and exclusively, to the children and grand-children of Mrs. Bellisle by her previous marriage; the respective ages of the parties — the donor being over 70, and Mrs. Bellisle 45 years — at the time of the donation, preclude the idea that they intended the children to be born of their marriage. But, after the examination of the case already made, it is considered unnecessary.
    The donation, it is submitted, has been shown to be null, because—
    1. Its suspensive condition — the pre-decease of Mrs. Bellisle has failed.
    2. That it is a donation mortis causa, and lacks the forms essential to its validity.
    3. That it is not a donation allowed by O. O., Arts. 1728, 1738, because 1st, it is a donation mortis causa, to take effect only at the death of the donor, containing the assig net limitatifof the property which may belong- to his succession; while the donations allowed by those articles as affecting the donor’s right to some elements of ownership take effect at once, and because the whole property of the donor is affected by it; and 2nd, that the donations of the Arts. 1728 and 1738 are, in their nature, restricted to donations under universal title.
    4. That it cannot be considered a donation 'inter vivos of present property, because 1st, it was not to take effect at once, and 2nd, if it were so considered, it would contain a substitution prohibited by law.

      J. JET. Ilsley and S. L. Johnson, for the widow Bellisle, appellee, say :
    The true interpretation of the clause is very obvious. The donor makes a donation to take effect at his death. The last part of the clause leaves no doubt on that point. The object of his bounty is his future wife. To her the law permitted him to make a donation of the whole or a part of what he might leave at his death in this form. But she might not survive him. His good will to her went so far as to embrace'the objects of her affection, her children. In case she died before him, and thus could not take the gift, ho gave it to her heirs, and their descendants. It is admitted that the gift to her heirs and then-descendants could not be made in this form. We are now only enquiring into the meaning of the clause. The only rational interpretation, giving effect to every part, is that which makes him intend the gift for his wife if she survived him, for her heirs, if she did not.

      The wife has survived her husband, and claims the donation. It was made to her by a marriage contract. No objection is made to the marriage contract as such. It was celebrated in due form, and must have all the effect which the law gives to such an instrument. Articles 1736, 1738, 1739, 1738 2816, show that such a donation as this could be made in this form by one of the spouses to the other, but not by one of the spouses to any stranger to the contract. We have admitted that the second disposition could not be made in this form. But the invalidity of the second disposition does not extend to the first. These dispositions are of the kind permitted by article 1608, and constitute what is known under the name of the direct or vulgar substitution. If the first donee cannot take, another may be called to take in his place. Any number of successive dispositions of this kind might be made by will, and some of them might fail by the incapacity of the donee or legatee to take for any of the causes mentioned in chapter second of the title of donations; some might be void for uncertainty, other legatees might die before the testator; but it was never imagined that the nullity of a posterior disposition of this kind could affect one that was prior to it.
    The disposition prohibited by article 1607 is believed to be the only one in which the policy of the law strikes at both the principal and the secondary bequest.
    But the record discloses the grounds of opposition of the administrators, and we shall briefly pass them in review.
    They are as follows:
    “ That the susponsive condition of said donation, to wit, the death of said Marie before the said Joseph Bellisle has failed, and for that reason said donation is at an end.
    “ That said donation is null and void:
    “ 1. Because said donation is one mortis causa, and lacks all the essential formalities of such donations:
    “2. Because said donation is in contravention with article 1738, and other articles of the Civil Code which prohibit the transmission of property in future, by marriage contract to the children and heirs of the donee, in case of her death before the donor.
    “ 8. Because said donation is a donation mortis causa to the children of said Marie Duhon, by her former marriage with Augustin Leblanc to wit: Alfred Leblanc, Doralie Leblanc and Doradou Leblanc.

    “4. Because said donation creates a substitution and of the heirs and their descendants of said donee.”
    The first allegation of the defence is that the suspended condition of the donation, to wit, the death of the donee before the donor, has failed, and therefore the donation is at an end.
    This supposes the parties to have intended a donation mortis causa to the wife, conditioned upon her decease. Can any one believe the husband intended to make, or the wife to accept a donation with such a condition:
    By our law a donation mortis causa can take effect only in case of the survi-vorship of the donee. C. 0. 1690.
    The next allegation of the defence is that said donation is null and void on four grounds; the three first of which attack it as a donation mortis causa ; the fourth as a prohibited substitution.
    We have already shown that we are not at issue with the defence on the disposition in favor of the wife. Nothing is claimed in their name. Nothing could be given to them, we admit, by this contract. The second and third grounds are thus disposed of.
    The first ground we shall briefly answer. A donation mortis causa can be made by marriage contract by one of the spouses to the other; O. 0., 1736, 1738, 1739, 1728, 2316, Fowler v. Boyd-, 16 L., 662, Fabre v. Sparks, 12 R., 21. In the former of these cases it was expressly decided, after a contest, that the disposition mortis causa by marriage contract, was valid, being an exception to article 1663. In the latter case this was assumed without contest. Our antagonists ask if article 1514 is included in the exceptions of 1619. The reasoning in the case of Fowler v. Boyd, applies to article 1614 as well as to article 1663, and would apply to all the articles included within the exception of article 1619 if that article were omitted. Courts would still give effect to the provisions in chapters 8 and 9 of the title of donations under the rule that all parts of the code must be construed together, and effect given to the whole, general provisions yielding to those made for particular cases; 0. 0., 17; Succession of Hebert, 5 Annual, 121.
    But it was intended that article 1514 should be excepted from application to the donations of which mention is made in chapters 8 and 9, as articles 1516, 1517 and 1518 are, by article 1519. By a singular inadvertence in compiling the new code of 1825, article 1515 is inserted between two articles, which, in the old code, and in the Code Napoleon, are the first and second of the four articles immediately preceding article 1519. The article 1515 is in these words:
    “ The donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals.” This article was introduced by the compilers with no other observation than the words “ a placer aprés l’article 43,” which is the 1514th article of the new code. The effect of this intrusion is to withdraw article 1514 from the position in which article 1519 would have embraced it, and to bring article 1515 within that position. The effect is simply an absurdity. It will not be pretended that the Legislature intended to sanction illegal and immoral charges and conditions in donations by marriage contract while they are reprobated in all other cases.
    We think, then, the insertion of 1515 was accidental and not for the purpose of withdrawing article 1514 from the scope of 1519.
    The learned counsel, in their brief, have gone into an investigation of the French authorities upon the nature of donations mortis causa, and the institution aontractuelle, what they are, what they may have been, what they should be. We feel under no obligations to follow them. The ample provisions of articles 1736, 1738, 1728 are sufficient to cover our simple donation.
    We dismiss, therefore, without anxiety, the further consideration of the first, second and third grounds of nullity, and come to the fourth and last.
    Our zealous opponents are not particular about the consistency of theirobjec-tions to the donation to the widow. Their first was, as we have seen, that she had lost it by not dying before she could claim it. The last is, that “ though at once seized of the naked ownership of the thing given, yet she would be charged to preserve it during the life of the donor, in order that it might be returned to her heirs, or their descendants, who are substituted to the donation in case of her decease before the donor.” It is attacked as a substitution of the kind prohibited in the second paragraph of article 1507.
    In order to imagine anything of this kind, the plain and obvious intention of the parties is avoided, and their words tortured with a perverse ingenuity into a variety of far-fetched and incompatible meanings and consequences.
    A decision of the Court of Cassation in the case of Merendol v, Merendol, decided June 8, 1812 ; cited in a note of Toullier No. 37, vol. 5, p, 42; found also in the Journal du Palais, v. 10, p. 446, is produced in support of this last objection.

      Jean Merendol, the testator, instituted Joseph Merendol his heir pour du tout jouir et disposer lorsqu ’il aurait atteint sa vingt quatriéme année; puis il ajouto que, en cas de mort de l’institué avant sa vingt quatriéme année, il léguait aux sieurs Jn. Bte. Garry et Jacques A. Merendol á chacun une somme de 10,000) francs á prendre sur ses biens.
    On the demand of the heirs at law, this disposition was held to.be a prohibi-- ' ted substitution, and therefore null, even as to the instituted heir; and, the tes--tator being considered intestate as to those 20,000 francs, they were adjudged to belong to the heirs at law.
    The ready answer to this case, as well as to that of' Rachal v. Rachal, 1 Rob,^ 115, also cited in support of this point, is that there is no similarity between, either of these cases and the one before the Court. The only interpretation of which we think the clause susceptible, precludes all idea of a charge to preserve, and to return, or deliver the gift to any one. On the death of' the donor it is to, take effect and not before, and in that event it is to vest absolutely in the first, donee if she is alive. If she is not charged to preserve and return it to the second donee, the gift to her is absolute and unconditional, ,l pure et simple,”' and the subsequent disposition cannot affect it.
    The learned counsel for the administrators introduce these two cases to sus--tain the proposition that the gift of $5000, considered as an ordinary donation, inter vivos, would contain a substitution prohibited by C. C. Art. 1507. If on the other hand it bo considered a donation mortis causa, they contend it is prohibited by the general terms of Art. 1563, and does not come within the donation of future property permitted by Arts. 1728, 1736, 1738, 2316, etc., be-causo it is a donation of a certain sum, and not of an aliquot part of the succession of the donor. Art. 1828 permits a donation of the whole or a part of the property the donor shall leave on the day of his decease. A part of the properly, it is said, can only mean an aliquot part and not a certain sum of money. Duranton on the corresponding- Article of the C. N., Art. 1082, is quoted in support of this opinion. Such a restriction of the usual acceptation of this familiar word ought to be supported by reasons or authority beyond question. Duranton is combatted by Marcadé on Art. 1082, No. 1, in the following words :
    Notre article permet la donation pour tout ou partie des biens que le dona-tour laissera en mourant. M. Duranton enscigne (No. 076) que la loi'parle soulement d’une partió aliquoto, el non de biens donnés á titre particulior; ainsi jo pourrais donner comme biens a venir la moitié, le tiers, le quart de mon paírimoine, mais non pas telle maison ou une somme d’argent. Mais sur quoi done se fonde cette decision ? M. Duranton no lo dit pas ; et il eut óté utile de le dire. Serait-ce sur le sens da mot partie ? mais la libéralité d’une partie des biens s’ontend d’une disposition á titre particulier (Arts. 896, 1048, 1049, etc.). Sans doute, co lie sera plus la l’ancienne institution eontractuelle ; mais co sera l’ancienno donation á cause de mort, ce sera une donation de biens á venir. Oil est le texto qui restreigne cette donation de biens á venir ala disposition á tilíc universcl?... M. Duranton veut que loute donation d’objets particuliers soit toujours considérée donation de biens presents: ainsi, quand .j’ai donné tels objets determines pour que le donatairo los prenne a mon décés, c’est 1st, dit-il, une donation ordinaire, opérant le dépouillement actuel et irrevocable, et contenant soulement une réserve d’usufruit pour le disposant. Mais en vérité co n’est pas la traitor la question, c’est so placer a cóté... Supposons que j’aio dit positivement: “Je vous donne 20,000 fr., á prendre sur ma succession,” ou bien: “je vous donne ma maison, mais comme bien á venir, en tant soulement qu’elle sera plus tard dans ma succession et que je n’en aurai pas disposé a titre onéreux (Art. 1083) dans ce cas, il faudra bien avouer que ce n’est plus une donation de biens presents; et il faudra vépondre nettement á la question de savoir si cette donation osl nullo ou valable. M. Duran-ton dirá sans doute qu’ello est nullo; mais il nous paraít évidont, comme á M. Ooin-Delisle (Nos. 14-18), qu’elle est parfaitement valable. Sans doute elle serait sans effet dans les cas ordinaires, d’aprés l’Art. 943, qui déclare nulle touto donation de biens á venir ; mais ello sera valablemont falte a un époux par son contrat de mariago, d’aprés notre Art. 1082, et d’aprés l’Art. 947 qui déclare que l’Art. 943 no s’applique point aux donations dont parlo notre cha-pitre. — II existe plusieurs arréts conformes, notamment un de rejet sur arrétde Rouen du 13 juillet 1836.
    The comments of Ooin-Delisle on the same question are equally worthy of attention: “Donations et Testaments, 0. N. 1082, Art. No. 14, p. 658. La donation des biens á venir par contrat de manage pout avoir plus ou moins d’éten-due. Quand olio défére la totalité de la succession, ou une quote-part de la succession, ou la totalité d’uno espécc de biens, ello est universelle, suivant les róg-les appliquées aux legs par les Arts. 1003 et 1010: c’ost alors qu’elle mérito le nom ¿’institution eontractuelle. Elle pout aussi étre faite á titre particulier, quand ello consiste soit dans une somme fixe, soit dans un offet determiné ou désigné par sa nature, lesquels n’appartiendront au donataire qu’autant qu’ils se trouveronl dans la succession du donateur. Dans ce cas, ce n’est pas uno institution eontractuelle, mais une donation qui a certains effets, et qui re§oit dans la pratique le nom bizarre de donation eontractuelle qu’on doit bannir de la lang ic du droit.
    “No. 16. Il y a eependant dos auteurs qui ne voient de donations de biens á venir permisos par l’Art. 1082, qu’autant qu’elles seraient faites universellement ou á titre universcl; et ils fondent cette opinion sur ces mots do l’article : “ Tout ou partió ” qu’ils opposent l’un á l’autre, de sorto que le premier indi-querait la faculté do donner l’universalilé ; et le second, celle d’instituer dans une quote des biens qui se trouveraient au décés, (M. Duranton, No. 676 ; M. Poujol, No. 2, sur l’article;) c’est lá. une erreur évidente. Dans la lang-ue du code civil, le mot partie opposé au mot tout no signifie pas seulement une par-tie aliqnote considérée dans son rapport avec l’entier, il signifie encore une fraction queleonque prise isolément et sans correlation mathémalique avec la masse dont elle est délachée. Cost ainsi quo los mots “ tout ou partie” sont (employes dans Art. 896, 1048 et 1049 du code civil et dans la loi du 17 mai 1820, oil ils exprimen! le pouvoir de disposer par testament non-seulement universellement et á titre universel, ma'is encore á titre particulier.
    Tenons done pour constant qu’il y a sous le code civil des donations á titre particulier des biens a venir, qui out un effet á peu prés semblable aux sitnples legs, comme il y avait sous l’ancien droit des donations á cause de mort á titre particulier par contrat do mariage. — See also the Nos. 17, 18.”
    Rejet sect. civ. 7 ventóse an xiii. Rejot 15 juil. 1835. Articles 1048, 1049 0. N. quoted by Coin Delisle have no corresponding Articles in the L. 0. But Art. 895 corresponds to 1455 L. 0. The words “ dispose of the whole or a part of his property ” in this Article embrace legacies under every title. On the other hand, in Art. 1604, a legacy under á universal title is defined in the English text to be the bequest of a certain proportion of the effects of which the law permits him to dispose, as a half, a third, &c.; in the French text to be that by which “ le testateur legue une quote part des biens dont la loi luí per-met de disposer, telle qu’une moitié, un tiers, ou tous ses immeubles, ou tout son mobilier, ou une quotité fixe de tous ses immeublés ou de tout son mobi-lier.”
    The legislator defined dispositions under universal title with fullness and precision in Art. 1604, and employed the words “ whole or part ” in Art. 1455, in their common acceptation, to embrace dispositions under particular or universal title. To use the same expression in Art. 1728, with another meaning, would be making a trap of the law instead of a rule. 'The simple word aliquot in the English text, quote-part in the French, would have sufficed to express the sense for which Duranton contends, if such had been the legislative will.
    The decisions referred to by Marcadé and Ooin-Deslisle fully sustain them. That of Wendel, or de Tendel, Cassation, March 1, 1821, is found in the Journal du Palais, vol. 16, p. 417, in Dalloz, Alph. 6, 212. By a first disposition, the father and mother in the marriage contract of their son, give and secure to him “dés á present en lá meilleure forme que donation puisse étre, 150,000, liv,” and by a second disposition it is said that this sum is to be taken out of their succession before partition, &c. It was held that, interpreting the first disposition by the second, the intention of the father and mother had not been to deprive themselves from that time of the faculty of disposing of their property by onerous title, but simply that said sum should be taken out of their successions, that is to say, out of such property as might be found in them when they should bo opened: that in this respect the donation was not to produce other effects than those “ d’une institution contractuelle,” according to which the donee or institné cannot exercise his rights except on such property as the father and mother have not disposed of by onerous title, and which may be found existing in kind in their successions.
    The court will not-fail to remark the absence, in the disposition in our favor, of any expression like the “dés á present,” in this case.
    The case of de Villequvre v. de Oayeux, Cass. 15 July, 1835, J: du Pal. 27, p. 456; Dolloz P. 1835, part 1, p. 393, referred to by Marcadé, was determined in a similar manner, although many features in the dispositions favored the views of those who saw in them nothing but donations inter vivos, with a term for payment, or a reservation of the usufruct for life.
    May we not say then that the weight both of authority and of-reason are against the assumption of Duranton, that the word “ part” in Art. 1728 means an aliquot part?
    We have sought for the most rational interpretation of the clause, and have found, we think, one that is neither strained nor far-fetched, -one that expresses the intention of the parties, and gives, so far as the form of the act permits, effect to every word, one, in the actual contingency, making a gift that- is so far favored by the law as to enjoy the exceptional privilege of being valid in its present form. The zeal with which this gift is contested, must be our excuse for the perhaps uncalled for length of this discussion.
   Buchanan, J.

The marriage contract between Joseph Léborne de Bellisle and Marie Aselie JDuhon, contains the following- clause : “ En consideration du futur mariage, le future époux declare faire donation entre-vifs pure et simple et irrevocable, á la future épouse, comme un témoignage de l’affeclion, qu’il lui porte, ce que la future épousfe accepte avoc reconnaissance.

lo. D’une somme de deux mille piastres.

2o. D’une autre somme de sept cents piastres, destiné pour l’achat d’une esclave, laquelle sera achetée au nom de la future épouse, par acto authen-tique, et deviendra son bien dotal.

3o. 11 fait aussi donation pure et simple á la dite future épouse, ses heritiers ou leurs déscendants, dans le cas oil la dito futuro épouse mourút avant lui, d’une somme de cinq mille piastres, laquelle donation aura effet au décés du futur époux, et sera préleyée des biens los plus liquides de la succession du dit futur.”

Joseph Leborne de Bellisle is dead. His wife, surviving him, claims five thousand dollars under the third division of the foregoing clause of the marriage contract. The claim is resisted by the testamentary executor, on the grounds:

1st. That the donation of five thousand dollars is made on a suspensive condition, to wit, the death of Marie Azelie Duhon, before the donor.

2d. That the donation in question, being intended on its face to take effect only at the death of the donor, is in reality a donation mortis causa ; and as such, is invalid, not being clothed with the forms required by law for a last will and testament. O. C. 1563.

3d. That the donation in question is not good under Articles 1728 and 1738 of the Code, because those articles only authorize the contractual institution of heir, for the whole or for an aliquot portion of the donor’s estate, and not for a specific sum of money.

4th. That the clause in question, violates the Article 1738 of the Code, inasmuch as it makes the donation transmissive to the heirs of the donee, in case of her death before the donor.

5th. That the donation is void by Article 1507 0. C. as containing a substitution.

Upon the first point, we are clear that the words used in the clause under consideration, are to be understood as meaning, that the donation is made to to the wife, in case she survives the husband; and to her heirs, in case she dies before her husband. There is some awkwardness in the mode of expression ; but our interpretation is necessary to prevent an absurdity and self contradiction in the disposition.

Upon the second ground of objection, oven admitting that the clause partakes of the character of a donation mortis causa, yet we cannot consider it invalidated by the Article 1563 of the Code. That article, which prohibits dispositions mortis causa being made, except in the form required for acts of last will and testament, must be considered as controlled by the subsequent Articles 1728 and 1738, taken in connection with Articles 2306, 2316 and 2308. By the last named article, every marriage contract must he made before a notary and two witnesses. All stipulations, therefore, which may bo legally inserted in a marriage contract, are sufficient in point of form, if witnessed by a notary and two witnesses, although that number of witnesses would not suffice to give the act effect as a noncupative testament. See Fowler v. Boyd, 15 La. 562. Fabre v. Sparks, 12 Rob. 21.

The third ground assumed by the counsel of the executors, assumes as correct the interpretation given by Duranton to the Article 1082 of the Code Napoleon, from which our Article 1728 has been literally copied. “ May give the whole or a part of the property they shall leave at their decease,” are the expressions used in both articles. These words, according to Duranton, require an institution of heir either universal or by universal title. But we prefer the interpretation of Coin-Delisle (Donations et Testaments, C. N. 1082, No. 15). “Dans la langue du Code Civil,” says that author, “le motpartie opposé au mot tout ne signiüe pas seulement une partie aliquote considérée dans son rapport aveo l’entier, il signifie encore une fraction quelconque prise isolément et sans correlation mathématique avec la masse dont elle est détachée.” And he gives numerous examples in proof of this assertion. The logical and accurate Marcadé likewise combats the opinion of Durantonin this respect, and sets the seal of his approbation upon the doctrine of Coin-Delisle. Code Civil, Art. 1082, No. 1.

It is perhaps unnecessary to observe, in connection with this discussion, that the District Judge is correct in stating, in his judgment, that Article 1514 of the Code is one of the four referred to in Article 1519; the Article 1515 having, by a mistake of the compilers of the Code, been inserted in the wrong place.

The fourth objection of the executors’ counsel might be well taken, had Mrs. De Bellisle died before her husband, and even her heirs, issue of this marriage, prosecuting the recovery of the donation of five thousand dollars. But that case has not arisen.

The evidence does not even inform us that there was any issue of the marriage of these parties, and the terms of the Article 1788 apply to no other heirs, but such as are the issue of the marriage.

The fifth objection to the donation is entirely groundless. There is nothing which resembles a prohibited substitution — an obligation to preserve for, or to return the thing to, a third person — in the contract under review.

Judgment affirmed, with costs.