text:
    E. D. Courmes v. A. J. Cavelier.
    Where a party has been evicted from the land purchased, he is not bound to pay anote given for the price. But if the eviction be only of a portion of the land, he may be bound ratably for the land of which he was not evicted.
    Promissory notes are barred by five years prescription. C. C. 3505.
    APPEAL from the Second District Court of New Orleans, Canon, J.

      L. Castera, for plaintiff.

      T. G. Morgan, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

A judgment was rendered in March, 1848, by this court in a suit of the plaintiff against his tutor, L. F. Maxent, by which he recovered a certain sum of money, resulting from the mal-administration of the latter. A portion of .this s.um was represented by a certain promissory note of John Davenport, which the tutor had received during the minority of the plaintiff, and it Was agreed between the parties, that the plaintiff should take this note in part satisfaction of the judgment. Au agreement to that effect was accordingly made part of the judgment. Courmes v. Maxent, 3d Ann. 336. The plaintiff accordingly received the note from his former .tutor, Maxent, and has instituted this action against Antoine Cavelier, the endorser, in favor of whom the note is drawn.

The note bears date East Baton Rouge, May 18th, 1836, and is payable one year after date. It is alleged in the petition, that the note was received by Maxent as the tutor of the plaintiff, and administrator of the succession of his grandmother, having been given as part of the price of a tract of land belonging to said succession. Cavelier is sued, not as endorser on the note, but as being bound for the price of the land, he having in fact purchased it under the name of Davenport. Conceding that Cavelier was bound originally for the purchase money, the district judge thought that he ceased to be bound in consequence of an eviction from the land by virtue of a judgment of the Circuit Court of the United States, by which it was determined that the land belonged to the heirs of Fletcher, and a writ of possession by which they were put in possession. Judgment was accordingly entered in favor of the defendant, and the plaintiff has appealed.

The plaintiff was one of the heirs of his grandmother, and the land having formed a part of her succession, it is obvious that, as he claims through them, he is bound to warrant the title; and on an eviction of the purchaser, from a cause which existed at the time of the sale, he cannot recover'the price.

The judgment under which the eviction was effected was rendered against the heirs of Davenport, who were in possession of the land; and it does not appear that the ownership of .Cavelier was recognised by them. On the contrary, a suit was instituted by him for the purpose of enforcing his rights to the land as a co-proprietor in interest against the said heirs, who denied them; and said suit is still pending.

The eviction was for the interest of the heirs of Fletcher in the land, being for three fourths thereof. The third of the whole tract, nearly twenty acres front, was purchased by Davenport from the succession of Mrs. M'axent. The third of a fourth interest in the land has consequently not been affected by the judgment of the heirs of Fletcher. Although we think that the district judge decided correctly in considering that the eviction relieved the purchaser from the obligation to pay the price, still there is an interest not covered by the eviction. The counsel for the plaintiff has not considered it material to press that point; and we are not under the necessity of examining its effect in the present action, in consequence of the conclusion to which we have came on another branch of the case.

The defendant answered several interrogatories under oath, which puts us in possession of the facts. Davenport was in partnership with the defendant, and bought the land on partnership account, giving the notes for the price of the purchase.

The act of sale to Davenport is not in evidence; and there is no evidence of the interest of Cavelier in the land, except his own answers. This interest we have seen the heirs of Davenport repudiate. There is no obligation on the part of Cavelier to the holder of the note, who has succeeded to the rights of the succession of Maxent in its amount, except that which results from the note itself, as binding the partnership, which was given in payment of the land by Davenport.

We think the action on the note is prescribed by five years, under the article 3505 of the Code. Succession of Guillemin, 2d Ann. 634.

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


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    A. T. Lagrave v. John A. Merle, Executor.
    Where an olographic will was dated at the commencement, and after malting various dispositions was signed by the testator, and he subsequently added another clause and again signed it, the instrument appearing tobe congruous and continuous, it will be presumed, in the absence of proof to the contrary, that it was finished at one time, and is clothed with the forms required for its validity.
    APPEAL from the District Court of St. Bernard, Rousseau, J.

      A. N. Ogden, for the plaintiff,
    contended : The judgment of the lower court rendered, was against the plaintiff on two grounds: 1st. That the New York will was revoked by a codicil to the latter will, made in Louisiana. And 2d. That the New York will was null as an olographic will, because not entirely in the hand-writing of the testator. It is admitted, and seen on inspection, that the codicil is not dated. But, it is contended, that this is an additional clause, which must be presumed to have been written at the same time with the other part of the testament, and as making part of it. The authorities cited in support of this, are all derived from the French jurisprudence. Our laws on the subject are believed to be in some important particulars different from the French laws; and that their decisions are, consequently, inapplicable, even if the current of those decisions should favor the views of the defendants, which, however, is not believed to be the case.
    The article 1581 of the L. C. is almost identical with the art. 970 of the C. N. The Napoleon Code does not, it is believed, contain any provisions so positive and explicit as those of the art. 1563 of the Louisiana Code. L. C. art. 1563 : “No disposition mortis causa shall henceforth be made, otherwise than by last will or testatment; all other foi-m is abrogated. But, the name given to the act of last will is of no importance, and dispositions may be made by testament, under this title, or under that of institution of heir, or legacy, codicil, donation mortis causa, or under any other name indicating the last will; provided that the act be clothed with the forms required for the validity of a testament, and the clauses it contains, or the manner in which it is made, clearly establish that it is a disposition of last will.”
    According to the authority of Toullier, this additional clause would have been invalid. But how can a doubt exist under our law, when we see a distinct and important disposition added, after the completion of tire will, and without which the two wills might well have stood together, and when the law expressly declares, that whatever name is given it, it must, in order’ to have effect, “ be clothed with the forms required for the validity of a testament.” On the second point, the decision of the court is sustained only by the opinions of the French courts, and those opinions were not expressed in cases similar to this. The only words in the New York will, not written by the testator, were the names of the witnesses, and these were not written in the body of the will. But, if they had been, they would have had no effect to invalidate it. L. C. art. 1582: “Erasures not approved by the testator, are considered not made, and words added by the hand of another as not written.” But this will was made in New York, and is clothed with all the formalities required by the laws of that State. The genuineness of all the signatures is admitted. Under this agreement, the laws of New York will be laid before the court. By the art. 1589, L. C., “ Testaments made in foreign countries, or in the States and other Territories of the Union, shall take effect in this, if they be clothed with all the formalities prescribed for the validity of wills in the place where they have been respectively made.” These signatures would not annul an olographic will in Louisiana. They do not deprive the will of a single requisite it contains for its validity in that form ; they are merely superfluous and useless. But in New York they are required by statute for the validity of the will.
    “ Since the first of July, 1830, when the revised statutes of New York went into operation, a will of personal as well as of real property, is of no validity unless it be subscribed by the testator, at the end of the will, in the presence of at least two attesting witnesses.” 4 Wend. 168. Watts and Leroy, appellants, and The Public Administrator, respondent. The will under which we claim is therefore valid, and not revoked. We contend that the two wills may-well stand together, and that our legacies must be first paid. But we also insist, that the bequest to Mrs. Merle failed entirely by her death before the testator. The words to her and her children, are no more than to her and her heirs. If so, the legacy lapsed. If it was to her, and to be kept by her, until her death, for her children, then it was null, as containing a prohibited substitution.

      P. Soulé and F. Grima, for defendants,
    contended : John A. Phillipon, who died in New York on the 25th of March, 1847, left two wills ; one dated New York, 22d of April, 1845 ; the other dated parish of St. Bernard, 26th of March, 1846. By the first, the testator, among other legacies, bequeathed to the plaintiff a sum of five thousand dollars, and to his minor daughter an undivided eighth part of all the property he had inherited from his father. This instrument purports to be an olographic will, although it is signed by the testator and two witnesses. By the second will, after disposing of his property, the testator declares null and void, all preceding wills by him made. The instrument is written, dated, and signed by the testator; no other but the testator has set his hand to it; but the clause revoking anterior wills comes after the date set to the will, and although the testator signs this clause, he neglects to set a second time, the date to it.
    And the question arises between the parties to the present suit, whether or not the will made in New York on the 22d of April, 1845, is revoked by the clause in the will made in the parish of St. Bernard on the 26th of March, 1846. The appellants hold the negative, and contend, that the clause in the last will, revoking all anterior wills, should have been dated as the will itself; and that, not being dated, it is invalid. They quote the authority of Toullier, who, commenting on article 970 of N. C. says, “ that if after dating and signing the will, the testator should add other dispositions, without dating them, these would be invalid.” Vol. 5, p. 343, No. 370. This opinion of’Toullier will hardly be reconciled with that expressed by the same author, in the preceding paragraph, where he maintains, “ that, ns the law has not prescribed in what part of the will the date should be placed, it may be written at the commencement or at the end of it, or in the very body of the fact itself.” Thereby showing, most conclusively, that clauses written after the date would not be invalidated on that account, for, clearly, should the date be placed in the body of the will, Toullier admits that such part as would come after the date, would, nevertheless, be sound and receive its full effect. The note of the same commentator, at page 345, vol. 5, and at the foot of § 371, leaves but little doubt that his mind had been considerably altered, as to the effects which the non-dating of a posterior clause would have on its validity, when the will itself was properly dated. Indeed, the case referred to, and the decree reported in the note, are the most unequivocal nullification of the opinion professed in § 370. The very question here in debate is boldly faced by Merlin, and determined in a way which leaves but very little room for discussion as to the opinion which is entertained of that question by the French jurists. Vide : Journal du Palais, 1830-’31, vol. 23, p. 1707. The authority of Duranton still increases the weight in favor of the validity of dispositions similar to the one here assailed. Duranton, vol. 9, p. 34, 35, edit. Paris. Zacharias, vol. 5, p. 82, 84, note 15. Yazeilles succ. vol. 2, p. 407, § 17. Coins. Delisle, on art. 970, p. 345, § 35.
    Thus have we shown, that in the eyes of the great mass of French jurists, commenting on an article of the N. C., from which the corresponding article in the Louisiana Code is extracted, almost verbatim : the revoking clause in the second will must take its effect, although it bears no date. The olographic will needs being dated but once, and from the moment that any additional clause to a will, dated and signed, cannot be considered as distinct from the will itself; but, on the contrary, must be presumed to be a constitutive part of the same ; duly signed by the testator, the law will view it as making one with the will itself, having the same dignity, and equally entitled to receive full effect. Should this be granted, the cause of the appellant is lost, whatever be the intrinsic merits or demerits of the will under which he himself claims. But, we will go further, and we confidently assert, that, even admitting, for argument sake,, that the revoking clause in the second will is invalid, as it is not contended that the main body of the will itself would, therefore, be disturbed, the appellants would still find themselves impotent to claim anything under the will made in New York. It purports to be an olographic will. To dispose of property situated in Louisiana, it should be made in accordance with the laws in force in the State, where the property described is situated. The article 1581 of the L. C. provides as follows: “ The olographic testament is that which is written by the testator himself.” In order to be valid, it must be entirely written, dated, and signed by the hand of the testator. It is subject to no other “ form, and may be made any where, even out of the State.” The corresponding art. in N. C. reads as follows : “ Le testament olographe ne sei-a point valable s’il n’est écrit en entier, daté et signé de la main du testateur.”
    Now, we contend, that the will made in New York is null, on account of other persons than the testator having set their hands to it, viz.: Fosdick and A. T. Harrison, who signed the same twice, as witnesses. Nor can it be pretended, that the setting of third hands to the will was by no act or assent of the testator, for the contrary appears from the terms of the will itself. That the insertion into such an instrument of a single word, which is not in the handwriting of the testator, annuls the will radically, is a point not only borne out by the letter of the articles above referred to, but fully supported by such ample authority that we deem it unnecessary otherwise to insist on it, than by pointing out the most striking passages of the commentators who have written on the same. “ Un seul mot ecrit d’une main étrangére dans le corps du testament,” says Toullier, “ quand méme ce mot serait superflu rendrait le testament nul. Vol. 5, p. 328, id par.” Un seul mot d'une main étrangére le vicie pour le tout.” Durant, vol. 9, p. 27. — vid. test, de Goulard, Merlin’s Rep. vol. 34, p. 126. Journal du Palais aun. 1833, vol. 25, p. 492.
    For the above reasons, the appellees expect, with unbounded confidence, that the judgment appealed from will be affirmed.
   The judgment of the court was pronounced by

Eustis, C. J.

John A. Phillippon died in the city of New York on the 26th of March, 1847. After his death, two wills bearing his signature, were discovered; one bearing date New York, the 22d of April, 1845, and another the parish of St. Bernard, in this State, the 26th of March, 1846. The domicil of the deceased was in Louisiana. The point upon which this case was determined in the court below was, as to the validity and effect of the last will in revoking the former one.

The Louisiana will is in the olographic form. It is written by the testator in his native language, which was the French. Its contents it is not material to state. It concludes to this effect: “Done at the plantation, parish of St. Bernard, this twenty-sixth day of March, in the year of our Lord, one thousand eight hundred and forty-six. John A. Phillifpon.”

Immediately following is written : “I desire to be exposed, eight days after my death: for, if I fall into a lethargic sleep, and should be interred, my waking up will be frightful and disagreeable. I charge Anais (referring to his sister, who was a legatee under the will,) to watch over the execution of this last request, John A. Phillippon.”

“ By the presents, I declare every other will made by me null, and of no value.

“John A. Phillifpon.”

“ Signed in presence of.” There is no signature of witnesses, nor writing upon the paper, except that of the testator.

The argument of counsel has been principally directed to the last clause revoking all former wills, which comes after the date given to the closing part of the principal testamentary disposition. This, though in the handwriting of and signed by the testator, has no date appended to it. The counsel for the plaintiffs, who are legatees under the New York will, contend that the two wills may stand together, and that they are entitled to their legacies. The defendants, who claim exclusively under the Louisiana will, insist on the revocation of the New York will, by the clause we have recited. To this effect was the judgment of the 'District Court, and the plaintiffs have appealed.

The case turns on the consequence attending the posterior clause not being dated. The code provides, that for the validity of an olographic will it must be entirely written, dated, and signed by the hand of the testator. It is subject to no other form, and may be made out of the State. Art. 1581. This article bears a close resemblance to the article 970 of the Napoleon Code, from which it was probably taken. The olographic was a form of testamentary disposition recognized in France before the adoption of the Napoleon Code. The jurisprudence on the subject appears to be settled. Merlin thus states and' solves the question as to the necessity of the date to the olographic will:

“Where an olographic testament contains several dispositions, of which the first one, at the same time dated and signed, and the second are only signed by the testator, are the latter null for want of date ? They are; provided that from the manner those clauses are conceived and placed, they cannot be considered to have been written immediately after the first, and on the same day that the first was written. But if, according to the contents or position of the second clauses, it appears that they could have been written on the same day with the first, we ought to presume that they were so in effect, consider them as forming but one and the same testament, and apply to the whole, which is composed of the different clauses, the general principle, that it is sufficient for the validity of the olographic will, that it be dated in the context, without its having a date at the end.” Merlin’s Rep. verbo Testament, sec. 11, par. 1,- art. 7. Duranton is to the same effect.

The law not having fixed the place' in which the date must be put in an olographic will, it may be placed not only at the head, but also at the foot of the instrument and in the body of it. A date, though affixed to the first clause and before the second, may be applied to one as well as to the other, and thus both may be considered as dated and signed. Droit Franjáis, lib. 3, tit. 2, § 34, et seq.

The opinion of Toullier, cite'd by the counsel for the plaintiff, which requires the date to clauses added by the testator to an olographic will, though stated in general terms, does not appear to have been acquiesced in by other commentators on the Code Napoleon, or to be supported by the jurisprudence of the court of cassation. Yide the case of The Heirs of Cricy. Journal du Palais, 1830 and 1831, vol. 23, p. 1707.

With this single exception, we believe the commentators on that code as well as the court of cassation, have adopted the opinion of Merlin. The diligence of counsel has enabled us fully to examine the subject. Zacharise, Droit Civil Franjáis, vol. 5, p. 83, note 13. Yazeille, Traité de Successions, &c., vol. 2, § 17, p. 407. Delisle Corns, on art. 970, C. N. § 36, p. 345. Rogion, Code Civil, art. 970.

The different clauses of the instrument under consideration appear to be congruous and continuous ; all of them to be parts of a last will; and the manuscript not being sent up for examination, we are bound to presume that there is no appearance of the writing having been interrupted, or of its not having boen finished at one time. Under the settled jurisprudence of the Napoleon Code, the instrument is clothed with the forms required for the validity of a testament. We think it furnishes us a safe guide in the case under consideration. No decisions of our own court have been adduced on either side.

Under this conclusion it is not necessary to consider the other questions raised in argument on behalf of the plaintiffs, who are legatees under the New York will. If that will is revoked, its validity under the laws of New York is not material; nor have thé plaintiffs any interest to contest the validity of the testamentary dispositions of the Louisiana will. That is a matter resting with the heirs at law and the parties in interest under that will.

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


text:
    The State v. Felix Percy.
    The limitation imposed by art. 96 of the New Constitution upon the duration of offices, applies to offices hold under the former Constitution and laws.
    The term of office of a notary appointed before the adoption of the New Constitution is limited to four years after its adoption.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    Upon the relation of A. A. Baudoin, John Gedge, for relator,
    contended: This case presents two questions : 1st. Have the governor and Senate the general right of appointment to this class of offices 1 2d. Had they the right to appoint to this particular one ?
    In examining the first question we naturally recur to the organic Jaw, to ascertain the power of the executive; and by referring to the Constitution, we find that his power of appointment to office ipsis verbis is given by the 50th article of that instrument. By this article “he shall nominate and by and with the advice of the Senate appoint all officers whose offices are established by this Constitution, and whose appointment is not therein provided for. Provided, however, that the Legislature shall have a right to prescribe the mode of appointment to all the offices established by law.”
    An examination of the Constitution shows that the office of notary public is not therein provided for. And the Statute book exhibits no act of the Legislature passed since the adoption of that instrument on the subject. It is not, however, to be imagined that either the Convention which framed the Constitution, or the successive Legislatures that have been held under it, were not fully alive to the importance of an office so essentially, nay indispensably, necessary under our existing system of laws. Such was not the case. The Constitution gave the power to the Legislature to provide for appointments to the office of notary by the proviso in art. 50 of the Constitution; but it was not made obligatory upon them to do so. It was not made obligatory upon the Legislature to do so, because it was well known, that there was an existing law for such appointments, which was maintained in force by article 142 of the Constitution, which provides that “all laws in force at the’time of the adoption of the Constitution, and not inconsistent therewith, shall continue as if the same had notbeen adopted.” The Legislature, therefore, has not been in fault for not malting any new provision on the subject. It was left to its discretion to act; and who shall say that it has done unwisely in not acting ? It is well known that the Convention was much divided in opinion upon the subject, both as to the method of appointment to the notarial office, and its tenure. That division of opinion was shared by the public then and now; and we cannot be surprised that the Legislature, participating those feelings, should prefer to leave the existing law untouched, until discussion and experience should point out a better.
    This law providing for the appointment of notaries, is entitled “An act providing for the appointment and mode of appointment of the officers therein mentioned.” Approved March 20th, 1813 — to be found at pages 18 and 19 of Moreau’s Digest. The part relative to notaries is contained in section 1st, and is as follows : “And that there shall also be appointed as many notaries public as may be deemed necessary, who shall remain in office during good behavior,” • &c. And section 2d provides that, “the governor shall nominate and by and with the advice and consent of the Senate shall appoint all and every officer,” &c. This law is maintained by art. 142 of the Constitution, not being inconsistentwith that instrument except in one part, which will be considered in the examination of the second question. It is the only law upon the subject to be found in our statute books ; it is that under which the defendant held his appointment; under which every notary that has been appointed in the parish of Orleans since its date was authorised to act; and which at this day is not open to dispute or cavil. This law, therefore, gives to the governor the power at the present day to “nominate and by and with the advice and consent of the Senate to appoint as many notaries public ns may be deemed necessnry.” The necessity heretofore recognised was the creation of new offices when the public convenience required it, or when the death, resignation or lawful removal of incumbents required their places to be filled by new appointments. The enquiry then arises, whether the present Constitution has not created a necessity for the exercise of the appointing power thus vested in the Governor and Senate; which naturally leads to the examination of the second question.
    We contend that this necessity has arisen. The defendant held his appointment under the act of 1843, and the tenure of his office was during good behavior, so long as that act remained unchanged. It was maintained by the New Constitution, so far as not inconsistent with its provisions; it was changed in every respect where that inconsistency is found; and that is in the tenure of the office; for article 96 provides that “the duration of all offices not fixed by the Constitution shall never exceed four years.”
    The most favorable construction, therefore, that can be given for the tenure of office of the defendant is, that he was entitled to hold it under his original appointment until four years should have elapsed since the adoption of the New Constitution; unless the Legislature should (as it is admitted and cannot be contradicted they had a right to do so,) have provided some new law on the subject within the limits of the Constitution. Now, the governor is bound by law and his oath to support and maintain this Constitution; and it is his duty to put in force every existing law that will enable him to perform this duty. He found a law which authorised him to appoint to this office when necessity required it. That necessity was created by the Constitution he was sworn to support, and all good citizens are bound to obey. It imperatively declared that no office^ should be held for a longer term than four years; and consequently it compelled him to exercise that authority which was vested in him by law and contemplated by the Constitution, to fill all offices which had endured for that period by a new appointment, either of the actual incumbent or another person. As it was thus his duty it was also his right. We believe that we have now established the two questions on which this case rests affirmatively.
    It was, however, contended in the lower court, and will doubtlessly be in this, that the 144th article of the Constitution, which provides that “in .order that no inconvenience may result to the public service from the taking effect of this Constitution no office shall be superseded thereby, &c.,” maintains the law of 1813 in full force in every respect until it be changed by the Legislature, because the article goes on further to say, “but the laws of the State relative to the duties of the several officers, &c., shall remain in full force, though the same he .contrary to this Constitution,” &c. Nowit is, to say the least, a matter of debate, if this latter part applies to anything else than the duties, especially if taken in conjunction with article 129. Be that, however, as it may, the art. 144 says further, “and the several duties shall be performed by the respective officers of the State according to the existing laws, until the organisation of the government under the Constitution, and the entering into office of the new officers to be appointed under said government and no longer.” Thus the article itself limits the duration of the office to the appointment of the new officers, and consequently if a new officer be appointed legally, the old one must necessarily be ousted and his tenure end by the terms of the article itself. Now we have already shown that it was not obligatory on the Legislature to act on the proviso of the 50th article; and that it was not necessary for them to do so, because a law existed covering the ground. It is shown that that law can be put in force consistently with the Constitution, by limiting the tenure of office to- the term required by the Constitution ; and that by so doing the law is perfectly competent to perform all that a new law could do, and produce no inconvenience to the public service. Is the monstrous doctrine then to be tolerated, that a law is to be maintained in violation of the Constitution, when it can be adapted to and made to harmonise with it, and with no inconvenience to the public service; which is the only cause that article 144 admits or assigns as The reason for permitting the existence or continuance of a law to the contrary? “Cessante ratione, cessat ipsa lex.”

      It is pretended, however, that this doctrine has been established by this honorable court in the case of The Board of Currency v. The Managers of the Citizens’ Bank, reported in 3d Ann. 34C to 350. We take the liberty to deny that this court has established, or intended to countenance, such doctrine. Its opinion is incontestably true on the facts presented by that case; it did not lay down a general rule. This case presents a different state of facts, and the decision is wholly inapplicable. In that case it was contended that the Secretary and Treasurer of the State, who were constituted, ex officio, the Board of Currency by the act of the 6th of April, 1843, and were distinct offices, were incapacitated from acting by the X26th article of the Constitution, which provides “that no person shall hold or exercise at the same time more than one civil office of emolument,” &c.; and that the act of 1843 was abrogated by that article. Your honors most correctly held that it was one of the cases provided for by the art. 144, and not repealed, though contrary to the Constitution; and that the officers must continue to exercise the functions of the Board of Currency until the Legislature made a different provision. But why did this court decide that the Legislature must act? Simply because the law as it stood was the only law on the subject, and was so constructed that it could not be reconciled with the Constitution; it must therefore ever remain in conflict with the Constitution, until the Legislature shall furnish another. It was maintained, “not to inconvenience the public service.” This court did not in that case say, that when a law can be reconciled with the Constitution it must be maintained in a shape that is contrary to it, especially when the public service is not inconvenienced by it. Nor did the court say that when an existing law can be enforced conform-ably with the Constitution, that it is to be maintained in a shape inconsistent with it until the Legislature shall change it; and yet these are the doctrines that defendant’s counsel sought to infer from the decision in that case.
    We apprehend that this court will not tolerate another doctrine of the defendant’s counsel: that legislation was necessary to carry out all constitutional provisions. This may be true when the Constitution itself provides for it, or when it is necessary to carry out the principles of the organic law in a particular form, or apply them in cases where there is no existing legislative provision that is available. But it is cleai, that no legislative enactment can be of greater force than a constitutional provision itself, and when such a provision can be directly applied, as it is evident that art. 96 and many other articles of the Constitution can, legislative action becomes a work of supererogation, and a species of impertinence.
    Were this doctrine to prevail, your honors’ seats would be vacated, for they are held directly from the Constitution, without the intermediation of legislative action.
    It appears to us that art. 145 is entitled to some consideration, coming as it does so directly after art. 144. We believe it to be something more than a mere temporary provision, and that it applies not merely to the first appointments to be made, but to all. We presume that the office of notaiy, although not created by the Constitution, nor by any Legislature held under it, is nevertheless an office under the Constitution, and that the appointments intended by art. 145 are not confined to those created by that instrument itself; but extend to all such as existed by law, to.which a different mode of appointment was not attached. We therefore consider that we have established the propositions with which we started, and that since the defendant’s tenure of office had endured for more than four years, and the governor has by the advice and consent of the Senate the right to appoint to the notarial office, and that he did appoint the relator, who has been duly qualified, the case provided for by art. 144 has happened, in the terms of that article, by “the entering into office of the new officer,” and that the defendant can hold it “no longer.”

      H. A. Bullard also appeared for the relator.

      George W. Christy, for defendant,
    contended: The points involved in this case are few, and may be readily traced in the following grounds, upon which defendant relies in support of his refusal to deliver up the records of his office, to wit: 1st. That his commission of notary has not expired by limitation. 2d. That the executive has no power of removal in the case. 3d. That his office has not been vacated by resignation or death. 4th. That until the office has been vacated by limitation, removal, resignation, or death, no successor can be legally appointed.
    Under the Constitution of 1812, the executive derived his power to appoint notaries public from an act of the Legislature, passed March 20th, 1813, which provides “that there shall also be appointed as many notaries public as may be deemed necessary, who shall remain in office during good behavior, but may be suspended by the Supreme Court until the next meeting of the Legislature whenever, after summary enquiiy before said court, it shall appear that there exists just cause of reproach against their conduct.”
    From this we gather that, at the time of his appointment, defendant’s term of office was for good behavior; and that the power of removal lay with the Legislature. Has this act of 1813 been amended or changed by the adoption of the Constitution of 1845? In the course of this argument we shall endeavor to show that it has not; that with regard to the defendant, all of its provisions remain in full force and effect. Art. 144 of the Constitution of 1845 provides “that, in order that no inconvenience may result to the public service from the taking effect of this Constitution, no office shall be superseded thereby, but the laws of the State, relative to the duties of the several officers, executive, judicial and military, shall remain in full force, though the same be contrary to this Constitution ; and the several duties shall be performed by the respective officers of the State, accordingto the existing laws, until the organisation of the government under this Constitution, and the entering into office of the officers to be appointed under said government, and no longer.” Under this article defendant had an unquestionable right to continue in the discharge of the duties of his office until the fulfilment of the two contingencies provided for in the latter clause, to wit, the “organisation of the government,” and “the entering into office of the new officers to be appointed under said government.” Now, if it can be shown that the last contingency has not been fulfilled, for the reason that no officer has been legally appointed to supercede him, defendant’s right still to continue in the discharge of the duties of his office, we think, cannot be denied.
    Plaintiff contends, that defendant’s term of office has expired by virtue of the 96th article of the Constitution, which declares, that “the duration of all offices not fixed by this Constitution shall never exceed four years.” The office of notary being one confessedly not fixed by the Constitution, it results from the provision of said article, that defendant’s term of office expired by the limitation at the end of four years from the period of the organisation of the government; and that plaintiff’s appointment by the executive was legally made, by the act of 1813, which has been retained in full force by article 142 of the Constitution, so far as it may not be inconsistent with the provisions of said Constitution'.
    We cannot regard article 96 as other than directory in its character. It should be remembered that the practice under the Constitution of the United States, and under the Constitutions of the several States, has been to leave it to the Legislature to enact laws to carry the principles adopted in the Constitution into operation. To assume that a Constitution is to be construed to carry into action the provisions it contains, without the aid of special enactments by the legislative body, is out of the usual examples. In this consideration of the character of .the article we are further strengthened by a reference to the histoiy of its adoption in convention. As originally adopted it reads thus: “The Legislature shall detexmine the duration of the several public officers, when such duration shall not have been fixed by this Constitution; provided that such time shall never exceed four years,” &c. Debates of Convention, p. 831. Thus making it obligatory on the Legislature to designate the terms of all offices not fixed by the Constitution; and by reference to the article 50, we find “that the Legislature shall have a right to prescribe the mode of appointment to all other offices established by law.” The two articles refer to the same subject matter, and may well be taken together, ns indicating that the Legislature alone had the entire control of the whole subject.
    If the 96th article, then, be directory in its character, and simply intended as a restriction on legislative action, in the absence of all legislative action in the matter, no vacancy has occurred by limitation, and the defendant is constitutionally in the enjoyment of his office.
    But grant, for the sake of argument, that the article 96 is positive and legislative in its character, and let us adopt the reasoning of the district judge.
    The act of March 20, 1813, was revived by article 142 of the Constitution, which provides, that “all laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if the same had not been adopted;” but, continues the learned judge, that portion of the act which declares that the office of notary shall continue during good behavior, being inconsistent with the 96th article, was not revived with the other portions of the act; and consequently, there being no provision remaining relative to the duration of office, the 9Gth article must prevail; and the defendant’s commission expires by limitation.
    How does this view comport with the language of the Supreme Court, and the positive provisions of article 144? In the case of The Board, of Currency v. Managers of Citizens’ Barde, 3d Ann. 350, the court held, that the act of April 6th, 1843, whicli constituted the Secretary of State and State Treasurer to be a Board of Currency, was not repealed by the Constitution of 1845, but that the same remained in full force and effect, until legislative action should be had, though in some respects conflicting with article 126, which provides, “that no person shall hold or exersise at the same time more than one civil office of emolument,” &c. This decision was predicated upon article 144, which directly provides that “the laws of the State relative to the duties of the several officers, executive, judicial and military, shall remain in full force, though the same be contrary to the Constitution.”
    The articles 142 and 144 are not irreconcilable. The language of article 142 is general in its character. The article 144, which follows it and is to be regarded as the last and most binding expression of popular will, is more special, and connecting its exceptions with the general language of article 142 we might regard that article as reading thus: “AH laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if the same had not been adopted; but the laws of the State relative to the several officers, executive, judicial and military, shall remain in full force, though the same be contrary to this Constitution.” In this view, the two articles are not inconsistent and may well stand together. If so, even though the article 96 be legislative in its character, yet the saving clause of article 144, in favor of the officers of State, revives the whole of the act of March 20, 1813, and makes it part and par'cel of the Constitution itself, until legislative action shall have been had upon the subject; and this, in the face of its apparent conflict with article 96.
    Such is the purport of the decision in the case of the Board of Currency above alluded to, and such we apprehend to be the true construction If the act of 1813 be retained in full force, it retains defendant in the term of his office until legislative action, and no vacancy has occurred by limitation.
    It is not pretended that defendant has resigned, nor is it seriously contended that the executive has the power of removing him. If no vacancy has occurred either by limitation, resignation or removal, how can it fora moment be seriously contended that the last contingency of article 144, to wit, “the entering into office of the new officers to be appointed under said government,” has ever arisen, since the first requisite to appointments to office is a vacancy in the office itself; which we have shown has not yet taken place in the present instance. Unlil new officers are legally appointed, the old notaries are at full liberty to continue in the discharge of the duties of their offices; nor can such appointments be made until the Legislature, exercising the powers granted to them by the 50th article of the Constitution, shall have determined the duration of offices, repealed the act of 1813, and declared the mode in which the appointments shall be made.

      C. Roselius, also for the defendant,
    contended: This application for a writ of mandamus is made on the ground that the relator is the successor in the office of notary public of the defendant, and as such entitled to the records of that office. The defendant expressly denies that the relator is his successor in office, and pleads, specially, that the commission under which Baudouin claims the office is null and void, because not warranted by the constitution and laws of the State:
    The defendant was appointed by the governor, with the advice and consent of the Senate, on the 5th February, 1839, under the law of 1813. (See Session Acts of that year, p. 136.) That law provides that the governor shall appoint, with the advice and .consent of the Senate, for the parish and city of New Orleans, “ as many notaries public as may be deemed necessary, who shall remain in office during good behavior, but may be suspended by the Supreme Court until the next meeting of the Legislature, whenever, after a summary inquiry before said court, it shall appear that thefe exists just cause of reproach against their conduct.”

      Baudouin’s commission is dated on the 14th IMarch, 1850, and expressly states, that he is appointed in the place of Felix Percy, whose term of office has expired. The only question, therefore, submitted to the decision of the court is, whether the governor had the constitutional or legal power to make the appointment in question?
    In order to solve this question, it will be necessaiy to examine what is the extent of the appointing powor of the governor, in relation to the office of notary public? No other appointing power is delegated in express terms to the executive by the Constitution, except that which is specified in the 50th and 51st articles of that instrument, the terms of which are clear and explicit: “ He shall nominate and by and with the advice of the Senate appoint all officers whose offices are established by this Constitution, and whose appointment is not otherwise provided for. Provided, however, that, the Legislature shall have a right to prescribe the mode of appointment to all other offices established by law. Tho governor shall have power to fill vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session, unless otherwise provided for in this Constitution; but no person who has been nominated for an office, and rejected by the Senate, shall be appointed to the same office during the recess of the Senate.”
    Now the office of notary public is not established by, nor even mentioned in, the Constitution. Hence, it is clear that the power to appoint to that, office is not vested in the governor by the Constitution. From whnt source then does the executive derive this power? There has been no legislation on the subject of notaries public since the adoption of the present Constitution.
    It is evident, therefore, that if the appointing power, so far as the office of notary public is concerned, is vested in the governor at all, it must be by the act of 1813, already quoted. Under that law, the office is held during good behavior ; and it follows as a necessary consequence that the governor cannot create a vacancy by making a new appointment. The power to remove is not incidental to the appointing power, under the Constitution of Louisiana. Nor does the executive, in the present instance, assume the power to remove; he places his right to appoint Bavdouin, expressly on the ground that Percy’s term of office has expired. It has already been seen that by the law of 1813, under which Percy was appointed, and in virtue of which alone the governor can appoint notaries public, the term of office is not limited by any specific period of time. It follows, therefore, that unless it can be shown that the law has been amended or modified by the Constitution, it is not true that Percy’s term of office has expired ; and it is equally evident that the governor has no constitutional power to appoint Baudouin in his place. The inquiry, then, presents itself whether the act of 1813 has been amended or modified by any clause in the Constitution ?
    By the 144th article of the Constitution, it is provided that: “In order that no inconvenience may result to the public service from the taking effect of this Constitution, no office shall be superseded thereby, but the laws of the State relative to the duties of the several officers, executive, judicial and military, shall retnain in full force, though the same be contrary to the Constitution; and the several duties shall be performed by the respective officers of the State, according to the existing laws, until the organisation of the government under this Constitution, and the entering into office of the new officers, to be appointed under said government and no longer.”
    It can certainly not be contended that this provision in the Constitution gives the least countenance to the idea that the act of 1813 has been amended so far as relates to the term of office of notaries public. On the contrary, all the existing laws concerning public officers and their functions are maintained in full force and virtue, notwithstanding their repugnancy to the Constitution. The learned counsel for the relator insists that the Constitution is the supreme law' of the State, of paramount authority; and that its enactments must prevail overall ordinary legislation; and he triumphantly refers to the 142d article, which provides: “ All laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if the same had not been adopted ” Hence it is argued that inasmuch as the 96th article of the. Constitution provides that: “The duration of all offices not fixed by this Constitution shall never exceed four years.” It is plain that the act of 1813, by which notaries public hold their office during good behavior, is inconsistent with the Constitution; and consequently was not kept in force. But it is manifest that this argument proves too much; for if it should be conceded that the law of 1813 is no longer in force, whence does the governor derive his appointing power ?
    In order to avoid this fatal but inevitable conclusion, the ingenious counsel for the relator, and with him the learned judge of tho district court, attempt to mince the matter by assuming that although the act of 1813 was not altogether abrogated by the 142d article of the Constitution, yet it was amended as to the term of the office of notaries public, by the 96th article. The fallacy of this argument is obvious. It was not, and could not be the intention of the framers of the Constitution to amend the existing law's of-the State; they had not been called together in convention for any such purpose; the high trust confided to them was to amend, revise, or remodel the fundamental law of the State. To pretend that they were occupied in amending the law of 1813, or any other law, is paying them but a left-handed compliment.
    But it is said that the 96th article of the Constitution limits the duration of the office of notary public to four years, and therefore it cannot be held for a longer term under the Constitution. This is begging the question. The Constitution does not contain the limitation of the term of office here assumed. Does the language used in the Constitution, that the duration of all offices not fixed by this Constitution shall never exceed four years, mean that the term of all those offices shall be four years 1 If such was the intention of the framers of the Constitution, they adopted rather singular language to express that intention; for according lo the ordinary and universally received acceptation of the words employed, the term of these offices may vary from one day to four years. A limitation of the terms of offices referred to was contemplated by the framers of the Constitution, but that limitation was not given in the Constitution itself; except with regard to the maximum duration. It is clear, therefore, that the intention of the framers of the Constitution could not be that the 96th article should be amendatory of the act of 1813. That article contains a restriction on the legislative department of the government with regard to the duration of the terms of offices. The duty is imposed on the Legislature to limit the terms of offices according to their wisdom and discretion; provided those terms do not exceed four years. But can it be pretended, with the least color of reason, that this limitation or restriction of the legislative power in the Constitution of 1845, has a retroactive effect, and refers back to the General Assembly which passed the act of 1813? Yet such is the argument of the counsel for the relator, and on that ground the judge of the district court has placed his decision. Nay, the learned judge goes a step further, and actually decides that the law of 1813 is a part and parcel of the Constitution. If this view be correct, then the immense bulk of laws with which the State was blessed in May, 1845, has all become a part and parcel of the Constitution, at least so far as not inconsistent with it. Whatever may be the perfection of the organic law of this State in other respects, it is unquestionably the most voluminous instrument of that kind that was ever-known. And how can this mass of legislation which has thus become a part and parcel of the Constitution, be repealed, amended or modified? An argument leading to such results cannot be a sound one.
    That the article 96 of the Constitution was intended as a restriction of the power of the Legislature in limiting the terms of offices, appears clearly from the debates on the article in the Convention. By reference to page 829 of the debates, it will be seen that the original form in which the article 96 was presented, was as follows: “ The Legislature shall determine the duration of the several public offices, when such duration shall not have been fixed by this Constitution ; provided that such time shall never exceed four years; except notaries public, whose term of office may be extended to seven years,” &c. The section, as thus proposed, gave rise to considerable discussion. “ Mr. Wadsworth thought the whole provision useless. It would create confusion. It would be much better to leave the whole matter discretionary with the Legislature.” “Mr. Eustis said he was one of those who thought that public officers were, and ought to be responsible to the people for the power delegated to them. But there were officers whose functions required qualifications so difficult to be met with, that prudence necessitated that they should be exceptions to what ought to be considered the general rule. Among this class of exceptions he would place notaries public. A good notai-y is more difficult to be found than a good lawyer. A dozen may be appointed; you may fill the office; you may appoint a notary ; but you cannot make a notary. The notary is necessarily the architect of his own fortunes. His business depends upon his skill and his reputation. It is to his hands that are confided the most important papers and the most important matters appertaining to society. From him are expected fidelity, order, discretion, punctuality, and an intimate knowledge of the titles of the country; and can we reasonably hope to meet with all these qualifications whenever we please ? It may be that you can get a ready copyist; but is a ready copyist alone suited to the delicate and important duties of a notary ? Will a good hand-writing and ordinary business habits be sufficient ? How much harm can be done by an unskilful person, who is charged with the functions of a notary, if he be entrusted with the public business ? The functions of the notary are directly connected with the safety of property, and the proper fulfilment of contracts. I would appeal to tlie honorable and learned gentleman, (Mr. Lewis,) whether it would not be most unfortunate to expose property and the interests of families to constant peril, by impairing and destroying all the guaranties of having proper persons to fill the office of notary, and by making the tenure of the office uncertain, to create constant fluctuations in it, which would doubtless be attended with pernicious consequences.”
    After many amendments had been proposed, some of which were adopted and others rejected, the section was finally adopted by a vote of 36 to Í3, as follows : “ The Legislature shall determine the duration of the several public offices, where such duration shall not have been fixed by this Constitution ; provided, that such time shall never exceed four years; and all the civil officers, except the Governor and Judges of the Supreme and District Courts, shall be removable by an address of a majority of the members of both houses, except those the removal of whom has been otherwise provided for by this Constitution.”
    There was no re-consideration of this section as thus adopted. How it obtained the laconic form in which we find it in the Constitution, can only be explained by supposing that the committee of revision, for the sake of brevity, changed the somewhat diffuse phraseology in which it was originally couched. But that committee had no authority; nor can it be believed that they had the intention of changing the substance of the article in any material respect.
    I repeat, therefore, that it is too clear for argument, that the rule laid down in the 96th article of the Constitution is addressed to the Legislature, and is restrictive of its discretion; and that it is one of those constitutional provisions which can have no effect, until an attempt is made by the Legislature to transcend the restriction by determining the duration of the term of any office, not fixed by the Constitution, beyond the period of four years. It is precisely of the same character as that clause in the Constitution which inhibits the Legislature from creating corporations with banking privileges, or from granting monopolies for more than twenty years; or that prohibiting one person from holding two offices, áse.
    This court has virtually decided the question which we are now discussing, in the case of the “ Board of Currency v. The Managers of the Citizens' Bank," 3d Ann. 346. In that case, as in the present, it Was contended that the existing law organising the Board of Currency had been amended by the 126th article of the Constitution. Such was the first impression of the court; but upon a re-hearing, the court decided that under at tide 144, the laws relative to the Board of Currency remained in force and unchanged, notwithstanding its repugnancy to the Constitution. It cannot be argued that there is any difference between that case and the present, for the Secretary of State and Treasurer of the State had both been appointed under the present Constitution.

      John R. Grymes appeared on the same side.
   The judgment of the court was pronounced by

Eustis, C. J.

The relator Baudoin was appointed by the governor, with the advice and consent of the Senate, a notary public in and for the parish and city of New Orleans, “in the place of Felix Percy, whose term of office has expired.” He took the oath of office and demanded of Percy the delivery of the records belonging to the office. On his refusal to deliver them, Baudoin applied to the Court of the Fifth District of New Orleans for a mandamus to enforce their delivery to him as the successor of Percy in office; which was granted, nisi. On the answer of Percy the cause was tried, and a peremptory mandamus was awarded. From the decree of the district court awarding the mandamus the defendant has appealed. No motion has been made to dismiss the appeal; and both parties assume that the matter in dispute is within the appellate jurisdiction of this court.

The defendant was commissioned as a notary public in 1839. The commission of the relator bears date the 14th of March, 1850.

The main propositions in favor of the right of the defendant to hold the office, which we deduce from the arguments of eounsel, are : 1st, that his commission of 1839 has not expired, but is still in force; 2d, that the appointment of the relator is unauthorised by the Constitution and laws, and consequently void.

The first question to be determined is, whether the duration of the office was limited by a term. The provision of the Constitution of 1812 and its operation are too well known to the profession to require anything, more than a general reference to it, in order to authorise the statement made by the counsel for the relator, that a large portion of the executive offices were not affected either as to the duties required to be performed, or the mode of appointment by the Constitution of 1845.

The Constitution of 1812 provided the mode of appointment for offices established by it, defining to the Legislature the right of prescribing the mode of appointment of all other offices to be established by law. Art. 3, § 9.

By the act of 1813, made to carry out this constitutional provision, it was provided, that the governor shall appoint, with the advice and consent of the Senate, as many notaries public as may be deemed necessary, who shall remain in office during good behavior, &c. Under this act the defendant was appointed and held his office. Several of the offices established by law under the Constitution of 1812 were limited in their duration, but that of notary and some others remained without any limitation.

This being the state of things when the Constitution of 1845 was adopted, we have to ascertain its effect upon this previous legislation and the offices existing by virtue of it. The mode of appointment was not changed in relation to them; for the fiftieth article leaves the power where the Constitution of 1812 had placed it — in the Legislature: “The governor shall nominate, and by and with the consent of the Senate, shall appoint all officers whose offices are established by this Constitution, and whose appointment is not therein otherwise provided for: provided, however, the Legislature shall have a right to prescribe the mode of appointment to all other offices established by law.” There were offices established by law, upon which the Convention acted, and are recognised expressly in the Constitution, for which the legislature had a right to prescribe the mode of appointment. But the Legislature was not called upon to exercise this right; the power had been exercised; the offices were created; and the fiftieth article is a simple delegation of power. The phraseology of the corresponding article of the Constitution of 1812 has this marked difference. The words in this instrument are “other offices to be established by law.” The fiftieth article of the N ew Constitution treats of “other offices established bylaw;” meaning those already established as well as those to be hereafter established. The reason of the discrepancy • is obvious. The Constitution of 1812 provided for the organisation of a State Government, which was to succeed the former Territorial Government established under the authority of the United States; that of 1845 merely for a change in some important particulars of a subsisting State Government, but leaving portions of it untouched. Great changes were made by the Constitution of 1845 in the judicial power, in the Legislative power, in the elective franchise, and some other matters; but the changes in the executive branch of the government were comparatively few.

The article 142 is in the same sense when it provides, that the laws in force at the time of the adoption of this Constitution and not inconsistent therewith shall continue as if the same had not been adopted.

The article 96 provides, that the duration of all offices not fixed by this Constitution shall never exceed four years. This article takes effect proprio vigore; it precludes by its terms the necessity for any legislation to give it force. The application of this limitation to offices held under former laws, continued in force by the Constitution, appears to us to be obvious and necessary. To except them would defeat, we think, the plain and evident purpose of the Constitution itself. The laws in force were to continue; the offices were not superseded; the incumbents were not changed. We find no clause in the Constitution which pre-supposes the necessity for any legislation on this subject. On the contrary, we infer from its whole tenor, that the operation of the Constitution itself necessarily carries into effect what was considered by the Convention as an important change in our system: the limitation of the term of office by the Constitution itself.

We therefore consider that the term of office of notary public held by the defendant was limited by the Constitution to four years from the time of the taking effect of said Constitution; and that the relator has been duly appointed his successor in office.

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


author: Slidell, J.

text:
    John R. Borgstede v. Daniel Clarke.
    Iii the clause in the sixth section of the act of June 1st, 1846, prescribing the time when a new election shall be held, the phrase term of the court in the parish of Jefferson, means the monthly terms of the court.
    It is not necessary to traverse the return to a mandamus before going to trial on the merits. After the governor has issued a commission to an officer whose election was contested, upon the party contesting having discontinued his suit, it is too late for him to renew the contest or dispute the right of the officer holding the commission. »
    APPEAL from the District Court of Jefferson, Clarke, J.

      C. Roselius for plaintiff,
    contended: This is an application for a writ of mandamus by the present recorder of the parish of Jefferson, to compel the defendant, who was h’is predecessor in that office, to deliver the public records of the office, as well as the place where the office is directed by law .to be held. The application is made under the 833d article of the Code of Practice. To a rule nisi taken on the defendant he answered, that the election for parish recorder had been held on an improper day, &c. He had previously contested the election of the plaintiff, but had discontinued his contestation. The plaintiff produced his commission, his oath of office, and the bond and security which he had furnished for the faithful discharge of his duties as parish recorder. Upon this evidence the district court ordered a peremptory mandamus to issue ; and the defendant has brought the case before this court by appeal.
    It is respectfully submitted, that there is not the slightest pretext for a defence to the application. By the provisions of the law of 1846, the election to offices of this kind can only be contested within a limited period, and in the manner prescribed. After the governor has commissioned the officer, no question can be raised concerning the regularity or legality of the election. The commission is a complete bar to any such inquiry.

      R. M. Carter, for defendant,
    contended: The defendant is appellant from a judgment of the Third Judicial District Court, directing a peremptory mandamus to issue, commanding him to deliver up to the plaintiff the office of recorder of the parish of Jefferson. Before entering into the defence which the defendant relies upon, in asking the court to reverse the decree of the lower court, it is necessary to state some facts which are not contested by either party.

      Mr. Clarke, the defendant, was elected in-, as recorder of the parish; pursuant to law his term of office expired on 5th November, 1849, or until a successor should be legally chosen. An election took-place on 5th November, 1849, and Mr. Borgstede was returned as recorder. This return was contested by Mr. Clarke, under the law concerning “ contested elections,” passed June 1, 1846. The election was declared null and void. The sheriff of the parish ordered an election, under section 6th of that law, which reads as follows : “If the finding of a jury be in favor of a new election, the sheriff or coroner, as c¡ase may ^e> sLall advertise the same at the door of the house at which election for each precinct of the parish is to be held, to be held on the fourth Monday after the last day of the term of court at which the trial has been had, and after at least fifteen days notice by advertisement aforesaid.” The sheriff construed the term of court to mean a monthly term, and directed an ejection to be holden on 28th January, 1850. Against this construction the incumbent and his friends entered a protest. The election took place, and Mr. Borgstede received a majority of votes, and applied for the office and was refused. Mr. Clarke immediately instituted suit against Mr. Borgstede. An issue was joined, and a jury summoned under the provisions of the act of 1846. At this stage of the case, the counsel who now addresses you was employed by the defendant. When the case was called for trial, I advised my client to discontinue his suit, which was done. Mr. Borgstode, on the 20th of February last applied to the judge for a mandamus. A rule to show cause issued, made returnable on the 25th. The proceedings had on that rule are the matters for review on this appeal.
    The writ of mandamus is derived from the common law, and its appropriate application can only be determined by reference to the decisions of courts of common law or positive statute enactments. It is not necessary to dwell upon the antiquity of this writ, but to proceed at once to the first question raised by the return of tho defendant. Can this writ issue in this case ? “ It was introduced,” say the writers. “ to prevent disorder from a failure of justice, and defect of police.” This explanation is sufficiently broad and comprehensive to subserve all good and practical purposes. It is a summary proceeding; a deviation from the usual legal proceedings; it removes all impediments to a speedy decision of the matter in controversy. Let us enquire what reason exists for the issuing of the writ in this case ? Mr. Borgstede claims an office, or rather the emoluments of that office. Admit his claim, and then ask what concern has the State or the parish in the enquiry to whom those fees should go, whether to Borgstede or Clarke? It is not contended that the records appertaining to the office of recorder are not safe; it is not shown that the public interests are endangered by the continuance of Mr. Clarke in office. All the interest presented is of a private nature. “ When the right is of a private nature, as in the case of an office in which the public are not concerned, such as that of deputy register, it is discretionary in the court to grant or refuse it.” We think that nothing in the record shows a necessity for the exercise of the discretion of the court to issue the writ. It is not the purpose of the party to dwell upon this point, but to proceed to the examination of the second question.
    Was a sufficient return made to the rule to show cause why the writ of mandamus should issue ? It is presumed that the plaintiff, in seeking his Remedy, relied upon articles 830, 831, 832 and 833. The action of the court was based upon article 840 ; the rule upon the defendant, on article 841. On the 25th of February a return or answer was filed to the rule. Article 842, C. P., reads thus : “ If, on the day assigned for answering the order, the party, or judge to whom it is directed, answers and states sufficient reasons to justify his conduct, the complaint shall be dismissed, and the petitioner shall pay costs.”
    Did the defendant, on his answer, state sufficient reasons for his conduct ? He alleges, that the election was illegally held: 1st. It was not held at the time required by -law. 2d. It was not held at the places required by law. 3d. That the notices required by law for holding said election were not given. Are these sufficient reasons ?
    The defendant further adds, he cannot give up his office to any person unless legally elected and qualified, under loss to himself, his sureties on his official bond and to the public These sufficient reasons were sworn to. We contend that the return was sufficient, and the duty of the judge was to refuse a peremptory mandamus. The return has not been contradicted; no evidence was introduced to show that the allegations were false. On one side, Mr. Borgstede asserted his election; on the other, Mr. Clarke denied it. Either of the reasons alleged by Mr. Clark was a sufficient reason and a good return to the rule : “ But if he at first returns a sufficient cause, although it should be falso in fact, the Court of Kiüg’s Bench will not try the truth of the fact upon affidavit, but will for the present believe him, and proceed no further on the mandamus. But then the paity injured may have an action against him for his false return; and (if found to be false by the jury,) shall recover damages equivalent to the injury sustained, together with a peremptory mandamus to the defendant to do his duty.” Jacob’s L. D., verbo Mandamus. “The party to the return of a mandamus could not traverse nor interplead.” Bacon’s Ab. verbo Mandamus. This was the law in England for centuries governing returns, until changed by statute.
    The next question presenting itself to the court is this : What was the duty of the plaintiff when the return was made ? If the English mode of procedure be considered binding upon the parties to this suit, the plaintiff should have traversed the return. This was not done. No issue was presented by the plaintiff; he traversed no fact in the return. It may be said he presented a commission from the governor; and it may be urged, that this document traversed successfully the allegations of the defendant. A commission under the seal of the State is not conclusive of the title to an office subject to popular election. The governor merely peiforms a ministerial function. At the present moment there are two commissions held by different persons for the office of United States Judge for the Eastern District of Louisiana; yet it will not be pretended that the gentleman who holds the commission youngest in date is entitled to the judgeship. Commissions similar to that tendered by the plaintiff necessarily issue on exp arte statements. The return to the mandamus avers, in substance, that the commission was null and void. We say, then, that the rule should have been discharged, and no further proceedings had by the judge, unless the plaintiff traversed the return, and gave the defendant opportunity to plead thereto. By statute of 9 Anne, c. 20, the right to traverse the return was granted in the same way as if the party had brought his action on the case for a false return. Verbo Mandamus, 6 Bacon’s Ab.
    Was the election held at the time required by law ? The election of Borgstede was decided by the jury on the 10th December, 1849, to be null and void. The sheriff ordered the election to be held on the 28th January, 1850. Was this day “the 4th Monday after the last term of the court at which the trial has been held?” The first section of the act of 1846 requires the proceedings to be had before the district court for the parish in which the election may be had. Let us, therefore, enquire which is the last day of the term of court of the Third Judicial District Court ? An act was approved 27th May, 1846, entitled “ An act to fix the time at which the terms of court in the several parishes of the State shall be holden (the parish of Orleans excepted.)” By that act it is declared. “ Third district: In the parish of Jefferson, from the first Monday in November till the fourth day in July.” The last day of the term of court is the 3d of July. But, it is contended, that by an act approved June 1, 1846, sec. 3d, the terms of court are monthly; and reliance is placed upon the following clause to be found in the section : “ Shall draw from said jury box forty names of persons duly qualified to act as jurors for the ensuing term, consisting of the calendar month.
    What is the obvious meaning of this clause, that the jury term should be monthly 1 And if there was room for a doubt the last few words of this section removes it, “ and to serve during the balance of the term of one month.” But the new election is to be held on the “ 4th Monday after the last term of court.” But can any effect be given to the clause in the section last quoted ? Article 118 of the Constitution says, “ Every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title.” The act from which we cited is entitled, “ An act relative to the mode of composing and drawing juries for the Third Judicial District, parish of Jefferson.” The object as expressed in the title is for the composing and drawing of juries ; the section referred to creates jury terms; or, if it be conceded that it creates terms of courts, the section is clearly unconstitutional. The composing and drawing juries, and the holding of terms of court, or jury terms, are different and distinct objects.
    We conclude; 1st. A sufficient return was made to the rule to show cause why a mandamus should issue. 2d. That it is clear that the election was not held at the time designated by law. 3d. That until a recorder for the parish be elected according to law, and duly qualified, Mr. Clarke cannot be called upon to deliver up the office.
   The judgment of the court (Preston, J., recusing himself, having been of counsel in the case), was pronounced by

Slidell, J.

The defendant is appellant from a judgment directing a peremptory mandamus to issue, commanding him to surrender to the plaintiff the office of recorder of the parish of Jefferson, the official books, &c.

The material facts are as follows: Clarke was formerly recorder. At an election in November, 1849, Borgstede was returned as elected ; Clarke contested the election under the act of June 1, 1846, and it was declared null. Under the 6th section of that law the sheriff ordered an election to take place on the 28th January, 1850. At this election Borgstede again received a majority, and Clarke again instituted proceedings contesting the election ; but after issue joined they were discontinued on his own motion.

In his petition in this cause the plaintiff alleges his lawful commission from the governor, which he annexes to his petition, and proper qualification by taking the oath of office and giving bond. The^proceeding was in the nature of a call upon the defendant to show cause why a peremptory mandamus should not issue. The defendant in his answer alleged that the election was illegally held ; that it was not held at the time, nor at the places required by law, nor upon due notice.

By a bill of exceptions it appears, that “after the counsel for defendant had read the returns to the rule taken by the plaintiff, in which said return it is alleged, that the alleged election of plaintiff was illegal as to holding in time, place, and notice, said defendant moved the said rule be dismissed, unless traversed by the plaintiff by his filing an answer. The court decided that it was not necessary to traverse upon part of plaintiff. To which decision defendant excepted.

The argument of the defendant’s counsel before this court travels out of the bill of exceptions and discusses the question, whether, under article 842, the return or answer being, as he contends, sufficient, he had a right to have the complaint dismissed, and drive the plaintiff to an action for a false return, pursuant to the ancient practice at common law before the statute of Anne. This question is not covered by the bill; it is not, however, improper to observe, that if it were, a majority of the court is of opinion, that the plaintiff, under our practice, cannot be driven to the circuitous remedy of an action for false return. The question really presented by the bill is, whether the plaintiff' is bound to traverse the answer before the cause can be tided. We concur with the district judge that this was unnecessary. It is the familiar rule of our practice that a replication is unnecessary, and that the plaintiff is to be considered as denying any new matter set up by the defendant. This rule, applicable to ordinary cases, and which was intended to expedite the progress of the cause, is a fortiori proper in summary proceedings, which, in the language of the code, are carried on “ without going through the ordinary forms of actions.”

It further appears by the bill of exceptions, that after the point just noticed was ruled against him, the defendant asked a continuance, on the ground that his client was not prepared with the necessary proof in support of his allegations in the returns, which continuance the court refused. We think there was no error in this. The application was not supported by affidavit showing the necessity of a continuance.

This brings us to the consideration of the cause on the merits.

The argument for the defendant was mainly rested upon the alleged irregularity of the plaintiff’s election as to the time of holding it. The sheriff, after the former election was annulled, advertised on the 26th December an election to be holden on the 28th January ensuing. By the 6th section of the act of 1846, p. 117, the sheriff is directed in such a case to advertise an election to take place on the fourth IMonday after the last day of the term of court at which the trial has been had. And the question is, what is the term of the District Court in the parish of J efferson to which we are to apply this provision of the statute ? Is it the entire session, “from the first Monday in November till the fourth day in July,” which is spoken in the act of 27th May, 1846, p. 56? or is the lawgiver to be considered as having contemplated in reference to the parish of Jefferson monthly terms? We think the latter the correct interpretation ; for in an act relative to the parish of Jefferson, passed at the same session of the Legislature, we find monthly terms expressly and l-epeatedly mentioned. Act of 1846, p. 111. This act bears date on the same day as the act respecting contested elections; (Ib. p. 116,) and as to time of preparation the former seems to have preceded the last mentioned act. It is proper also to observe, that the construction invoked by the defendant would lead to results which, we may believe, the Legislature would never deliberately have sanctioned. November is the month for holding elections; and if, for the purpose of the present question, the term of the District Court in Jefferson is considered as commencing in November and ending in July, then the public voice would be silenced, and the old incumbent would hold his seat until the ensuing July or August — a period of nine months. Moreover, the election would be thrown into a season of the year at which, in the usual course of things, the voting population of the parish is much reduced.

But on another point the case is clearly with the plaintiff. He contested the election under which the plaintiff claims, but abandoned the contest; and after that abandonment the governor issued a commission to the plaintiff. By the 13th section of the act of 1846, p. 13 8, it is enacted, thatthe governor shall not issue a commission until forly days after the day of the election for the parishes within one hundred and fifty miles of the seat of government. On the successful candidate furnishing to the governor a copy of the judgment of the court in his favor, duly certified by the clerk, dated after the last day of the term, the governor is required to issue immediately a commission to such successful party. And upon the certificate of the clerk, showing either that the contest has been abandoned, or the right to prosecute it lost by non-compliance with the provision of the act, the governor is directed to issue his commission in favor of the person in whose favor the certificate of election has been granted. Now it would be clearly a violation of the policy and spirit of this act, which was intended to put such questions at rest as promptly as possible, to permit the defendant still to frustrate, or to question the popular will, after he has once contested, has abandoned that contest, and the executive subsequent to that abandonment has issued a commission.

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


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    James H. Dudley v. Canal Bank.
    Principals are responsible for the damages caused by the neglect and misfeasance of their agents.
    Where a jury has not awarded such damages as the evidence establishes, the Supreme Court will increase the amount.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      W. C. Hamner, for plaintiff,
    contended: This is a suit to recover the value of a horse killed on the Shell Road, through the improper conduct of appellants.

      The petition sets forth two causes of complaint against the bank: first, the violation of the custom of the road in shutting the toll gate at an unusual hour ; an(^ secon(j) ¡n having a bar instead of a gate at the toll gate. The proof as to the custom of the road as to leaving the gate open, is fully established by six or seven gentlemen who have ridden on the road two or three times a week for many year's.
    The testimony also establishes that the bar thrown across the'road'and painted white, Was unsafe and dangerous; it could not be seen when closed. The jury gave a verdict for one hundred and fifty dollar’s. The plaintiff claimed live hundred dollars as the value of his horse, and proved his value to be four hundred dollars, he having refused that sum for him. See Bunce’s testimony. He joins the appeal and asks that the verdict of the jury be amended by giving him four hundred dollars, the value of his horse.
    The defence before the jury was, that there was fault on both sides, and therefore plaintiff could not recover. No proof was produced by defendants to show that the plaintiff was at fault; it is attempted to be deduced from the fact of the killing of the horse and the starting of the gate post. The essential testimony upon this point is that of Captain Stockton. He says that the beam was indented from one-eight to one-fourth of an inch, and that the post was started from two to three inches at the surface of the ground. From this result, defendants conclude that plaintiff was a modern Jehu. On the contrary, if any inference can be drawn from it, it is that the pace was-moderate; for 3500 pounds, about the weight of the horse, cab and riders, thrown with a great velocity against such a structure, would have knocked it to the earth, and dashed the riders over the horse’s head; but their own witness who was on the spot and examined the matter, says no idea of the speed could be had from the accident.
    Then how Was plaintiff at fault, unless riding on this road be a fault. He made the distance from the lake, 5| miles, in about an hour. Waggerman’s testimony. The superintendant, Capt. Stockton, says he generally made it in forty minutes, and that he did not consider ten miles an hour fast driving or violation of the ordinance. Plaintiff was a cautious prudent driver; very careful of his horse; the drive was at night; nothing on the road to excite horse or rider; four friends in his waggon; no excitement; no urging of his horse; knowing the gateway large, sixteen feet; never having known the gate shut; no requisition of the road or necessity to pass the gate at less speed than other parts of the road, the speed being moderate. Then, in what was he in fault ? It is confidently answered, in nothing; he was not at fault; he used common and ordinary caution. But ah ! it is said his horse was sweating, and that he Mowed. Wonderful, this, on a warm spring evening I But, says the toll-gatherer, the accident occuiTed at a quarter past eleven ; that plaintiff acknowledged it was his own fault; that plaintiff told him he stopped about one hundred yards off, and seeing nothing started again. This amounts to saying that plaintiff deliberately drove his horse against the gate to destroy him, and then told witness he had done so. This witness understood and spoke English very indifferently, and it is therefore charitable to think that he was rather mistaken than swore falsely. His interest was to protect himself. He says he closes the gate when he feels sleepy. Is the life and property of the public to be exposed in this way with impunity ? From the capricious feelings of a public agent, the custom of a thoroughfare as crowded almost as a street is suddenly violated and the property of the citizen is destroyed, and his life and that of his friends greatly endangered. I am sure this court will not justify such conduct; will not excuse such neglect or wantonness. It has been attempted to make plaintiff bear the sins of all the rash and violent driving on this road. The police has been searched for testimony; superintendant and toll-gatherers brought in; the witnesses of plaintiffall attempted to be made wild, daring, wrecldess drivers; all, all the wrong things and accidents upon the road brought up and plaintiff made to bear them. It will not do. We have nothing to do with these things. We were riding, as any one has a right, quietly, at a moderate speed, and unsuspecting of hindrance, when by the unusual and unexpected conduct of the defendants, our lives and property were alike hazarded. The coui-t is therefore prayed to change the judgment to $400, instead of $150 as the value of the horse is shown to be that amount.
    E. A. Bradford, for defendants,
    contended : The facts of this case and the usages of the road in respect to the toll-gate, are shown by the testimony of Captain Stockton, Marcellin LeBlanc and James Robilaille.

      The defendants submit the case upon the following points : 1. That nothing in the record shows any fault on the part of defendants, but that the accident was solely attributable to the fault of the plaintiff himself. 2. That at the utmost, it can only be held that there was fault, or want of care, on both sides; (and such appears to have been the opinion of the jury, as indicated by a verdict which was clearly a compromise verdict;) and in such case neither party can recover damages of the other. Myers v. Perry, 1st Ann. 372, and cases there cited.
   The judgment of the court was pronounced by

Slidell, J.

This is a suit to recover the value of a hoi’se, killed on a road called the Shell Road, through the alleged fault of the defendants, who, it is complained, violated the custom of the road by shutting the toll-gate at an unusual hour, and had, instead of a toll-gate, a bar which was not easily disceinible at night. The hoi'se struck his head against the bar and was thus killed.

We consider the testimony as pi-oving that it was not usual to have the road closed at that time of the night; that the plaintiff had no reason to expect such an obstacle ; and that it was one not easily discernible at night. We think, also, the testimony strongly preponderates in favor of the proposition, that the plaintiff was not di-iving at an indiscreet rate, and did not, by imprudence on his own part, contribute to the disaster.

The only objection which we find to the verdict is as to the amount of damages. The appellee, in his answer to the appeal, demands an increase of the amount awai-ded; and, we think, under the evidence as to the value of the horse, he is entitled to a higher assessment.

It is therefore decreed, that the judgment be so amended as that the plaintiff recover from the defendants the sum of $300, with costs in both courts,


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    Robertson et al. v. Peter Conrey.
    One who is sole stockholder of a bank, and the recipient of its assets,- is bound to pay a claim against the hank if the assets amount to the Sum claimed.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Thomas A. Clarke, ex parte, for the plaintiffs,
    contended: The Merchants’ Bank collected, as agent for the Bank of the United States, the sum of $360 for rent of a store for one yeai-, belonging to the latter. This receipt was not acknowledged or credited in the Mex-chants’ Bank account with the Bank of the United States. The defendant is sole stockholder of the Merchants’ Bank. The assets and papers are in his hands, and amount to a sufficient sum to meet the plaintiffs’ claim which is for $360, the said amount collected. Plaintiffs are assignees and trustees of the Bank of the United States. 1. The Merchants’ Bank would be compelled to pay us. 2. That if the first proposition is sustained, the defendant, the representative of said bank and possessor of its assets, must pay us out of the sum. 3 Mason Rep. 310.
   The judgment of the coui't was pronounced by

Slidell, J.

This cause has been submitted ex parte by the appellee, who relies on Wood v. Dremmert, 3 Mason, 310. The principles there recognised support the decree of the district judge.

The judgment is therefore affirmed, with costs.


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    Claude Tournier v. Municipality Number One.
    Where the municipality had agreed with a contractor to make certain banquettes at a fixed price, one-third to be paid by the municipality and the other two-thirds by the front proprietors, and it having been settled by a suit that the front proprietors were liable for only one-third, the municipality will be considered as a warrantor for the remaining third of the price, and held liable for that sum.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      T. W. Collins, for plaintiff.

      R. Preaux, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff claims from the defendant the sum of $3682 40, for work done and materials furnished under two certain contracts made by the municipality with Hubert Oirard, for the making and laying of flatboat gunwale banquettes in the suburb Tremé. By these contracts the municipality was to pay one-third of the price agreed upon, and the two-thirds were to be paid by the owners of property in front of which tho banquettes were to be made. The municipality paid its third; but it is alleged that the plaintiff has not been able to collect the whole of the remaining two-thirds from the property holders, from causes for which the municipality is responsible. This suit is for the amount which the defendant has been unable to recover. The plaintiff had judgment in the court below, and the defendant has appealed.

It having been determined by a court of competent jurisdiction in the last resort, that the plaintiff could only recover one-third of the cost of the work from the owners of property, instead of two-thirds, as was stipulated in the contract between the parties, it seems to us necessarily to follow, that the plaintiff has a claim on the municipality for the deficiency. The contractor agreed to take, as the price of his work and material, the debt of the adjacent property owners for two-thirds, looking directly to the municipality for the one-third. The municipality warranted to the contractor the existence of the debt, or recourse against the property owners for two-thirds of the cost. This debt having been determined not to be due, the warranty is falsified, and the municipality is bound by it. We do not understand any question to have been made as to the correctness of the amount due the plaintiff. The judgment of the district court cannot be disturbed.

Judgment affirmed, with costs.