New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-06-12
THE COURTS.
Fourth District Court.


Francis A. Gonzales has filed petition
in this court, alleging that on the third of
January. Charles T. Howard caused two
affidavits to be made and sworn to by some
person calling himself and signing William
Orne, before i. HI. Draper, assistant re-
cOrder of the First District of this city
charging petitioner with having sold Ha-
vana lottery tickets, and praying that said
petitioner be arrested; that thereupOn war
rants addressed to the chief of police, ETC.,
were issued from the recorders court for
the arrest of petitioner.
Gonzales, learning that said warrants
were issued against him, and that he was
being searched for, surrendered himself be-
fore Recorder Draper, and was released on
bonds to await his trial on the charges pre-
ferred against him.
On the twentieth OF March, 1872, being
the day fixed for the trial of said charges,
the cases were dismissed and Gonzales was
discharged from custody by said recorders
court.
Petitioner accompanies certified copies of
afidavits and warrants above mentioned,
and AYERS that they were illegal and ma
iciOus, and made for the sole purpose of
humiliating petitioner, iniuring him in his
feelings, damaging his good name, standing
and credit in this community, and running
his business.
Petitioner alleges that there is no such
crime known to our law as selling or dis
posing of Havana lottery tickets, and that
his arrest was Illegal that further, the al
Legations of said aftidavits are untrue; that
the residence of the pretended prosecutor
was and is not even, as is customary, writ
ten on said affidavits for arrest, and that
civilian 0rne" was and is a fictitious per-
son; that said Charles 7. Howard was the
real prosecutor in said causes under said
fictitious name of William Orne, and that
he caused the prosecution to be instituted
ouI in he Cf ~
responsible and unknown, for the purpose
of shielding himself from the necessary con-
sequences of said unjust prosecution; that
said Howard, as an incorporation, stock
owner and president of the Louisiana State
Lottery Company, was and is the only
party interested in said prOce eding, and
that he was the prime instigatOr.
Hence the claim Of $4,000 damages
Seventh District Court.
By the marriage contract between A and
B, and in view of the contemplated mar
riage, the celebration of which viii take
place Immediately, he makes her a dona-
ton of $4,000, evidenced by two checks
drawn on different banks made payable to
her order, which he hands to her and
which she indorses and hands back to him
for the purpose of collection for her use
and benefit Then by another clause she
constitutes the above sum as her dOwry,
out issue from the present marriage, she |
makes donation to her future husband of |
the amount constituted by her in dOwry.
Subsequently when he was (if not insOlv-
emit in embarrassed circumstances he con-
veyed to her a dwelling in this city, to re-
place said dOwry, and in payment of said
sum of $4,000.
The plaintiffs, who are his creditors. OBJ
pose this conveyance and sue to have it
set aside.
The court says:
1. 1t is evident on the face of the mar
riage contract that its stipulatiOns are |
drawn with view to create a donation
prOpta 9uphGS or promised donation by the
future husband into an absolute title an
present., and before marriage, and to evade |
the operation Of articles 2317 and 23l8, which
provide that the dOwTy must consist of
something which the wife brings to the hus
band to support the expenses of marriage,
or given to her by other person than her
husband on account of said marriage.
2. Manifestly the sum mentioned was not
the property of the wife, independently of
the marriage, or without the actual hap
pening of the marriage, nor was it given to
her by other than her husband, and there
fore it could not constitute in dowry. G.
CT 1882
8. Manifestly it was a sum given to her
in consideration of the marriage. and there
NV W N--SNt ~ CSeA-N- AAOt
be paraphernal.
H. Being neither dotal nor paraphernaI,
it must necessarily be chased as donation
prODta nuptias. which is tile only remaining |
category to which it could belong. The
handing the money backward and forward,
with the evident intention that it shall re-
main with him, followed by donation of it
to him, should he survive her, show it to be
a mere shadow to cover the true intention.
which was evidently a donation nlOrtie ca1sa
made by him to her in the event of his diving
before her, or to their own children, in case
of his leaving at his death ever after here
any issue by the marriage.
5. The right so constituted being neither
dOtal nors paraphernal, it conferred no
mortgage nor privilege in favor Of the wife
or her husbands property, since the law
gives such mortgage or privilege to the
wife for dOtal and paraphernal rights only.
6. Even if it could have given her privi-
lege or mortgage, it was necessary to record
it to produce that effect; but it was not re-
corded at the time the act of sale was
passed, and therefore even were she posi-
tive creditor she had no superior rights.
z. The rights being neither dOtal nor par
aphernal, but only those which accrue to
the wife from a donation prOptG natpti0s
the sale made was not authorized by nor
does IL come within, either Of the three
exceptions of article 242l and was therefore
unlawful and null.
8. In cases where the wife has no privi-
lege or mortgage, her husband, while In
embarrassed circumstances, has no right to
make sales or donations to her, or when she
is a creditor, to give her preference over
his other creditors.
Judge Thomas Wharton Collens goes
then to discuss the theory of contracts be-
tween huband and wife on the principle
that a marriage contract can not be altered
after it's celebration, and concludes that In