text:
    Davis v. The Police Jury of Concordia.
    Where the grant of a right to keep a ferry at a particular place is proved to have been made by a person who was, at the time, governor defacto of the Spanish province of Louisiana, the authority to make such a grant will, in the absence of proof of a prohibition to make such grants, be presumed from the fact of its having been exercised.
    In a contestbetween a police jury and one claiming under a grant from the Spanish government. the court cannot enquire into ¿he effect of the treaty of San Ildefonso upon grants in Louisiana, made subsequently, by the Spanish government. Such grants must be respected so long as the present government suffers them to remain undisturbed.
    Where, for greater convenience, a ferry has been kept up, at a point from a quarter to half a mile higher up the river than that designated by the grant, with the consentof the police jury, who, during the whole time had an absolute \.bt to control it, they cannot take advantage of this circumstance to claim a forfeiture of the 01. the ground of non-user.
    Where a grant made by a Spanish governor of the right lo kocp a >< r-w is unlimited as to time, and' thelegislature have fixed no period after which such grants snar «' i *** to have effect, it must be considered as unlimited.

      Where a grantee of the light of keeping a ferry alleges that his right is exclusive, he must show clearly that the grant was intended to he such. The abandonment of the power to provide for the public accommodation by the establishment of other ferries, will not be presumed.
    In answer to the petition of the proprietor oi a plantation for the grant of a right of ferry, as a privilege to be attached to his plantation, in consideration of his making a certain road, the governor of the province declared “ se le concede el privilegio anexo a la habitación que posée, para que de ella, con exclusion, haga las traviesas del rio,” &c. Held, that where any other meaning can be given to a grant it should not be construed as surrendering forever a franchise and a part of the sovereign power ¡ and that, consequently, the words con exclusion can not be considered as a renunciation of the right to establish any other ferry above or below the plantation of the grantee, but as a prohibition to others, to whom no such privilege has been extended, to transport across the river persons or things for hire, within a reasonable distance above or below the plantation of the grantee.
    APPEAL from the District Court of Concordia, Curry, J. The plaintiff alleges that, on the 19th February, 1841, “ the Marquis de Casa Calvo, then governor general of the province of Louisiana, by appointment of the King of Spain, granted to one Thomas Thompson,, then of the. parish of Concordia, the privilege of keeping a ferry at the post of Concordia in said parish, opposite to the town of Natchez, as a privilege to be attached to the plantation of said Thompson, for passing across the river Mississippi, carriages, horses, men, &c., for such a reasonable and customary toll as might be established, and on condition that Thompson should clear a certain public road or highway from the post of Concordia to the bayou Crocodile in said parish, as appears, from the original petition and grant annexed to his petition. The plaintiff represents that Thompson did fully perform these conditions as appears by the certificate of Joseph Vidal, then commandant at said post of Concordia; that immediately thereafter Thompson exercised the privilege aforesaid, and performed the duties and enjoyed the profits of the ferry, until the 16th of October, 1803, at which time Thompson assigned all his rights and interest in and to said ferry and tract of land to Joseph Vidal, and delivered the same accordingly ; that the tract of land to which the privilege was attached was sold by Thompson to Vidal for 554000, when the land, without the ferry, would not at that time have been worth more than $800; that Vidal took possession of said ferry and plantation on the 16th of October, 1803, and kept and enjoyed the same from that time until the year 1817, when he sold and delivered the tract of land and ferry to the petitioner; that by the laws, usages and customs of the Spanish government at the time said grant was made, said privilege was exclusive of any other ferry, for the distance of one league above and one league below the same; that he has also a prescriptive right thereto, based on his and his vendor’s possession, and enjoyment thereof since the year 1801.
    The petition further alleges that, “ the police jury of the parish of Concordia on the 4th day of April, 1839, passed an ordinance authorizing the treasurer of the parish, and making it his duty, to sell, after ten days public notice, either at private sale or at public auction, the exclusive privilege of keeping a ferry across the Mississippi river from a point in said parish opposite to the city of Natchez, for a term of not less than oue year nor more than three years ; that one Keeton, the parish treasurer of said parish, in pursuance of said ordinance, has advertised the said ferry for sale, and that he will proceed to sell the same unless arrested by injunction. It is averred that said ordinance is illegal, and injurious to the rights of the petitioner, who has an exclusive privilege to the sa^ fen’y> vabte of which exceeds the sum of $300, and that, should the ordinance be executed, he will suffer damage to a large amount, and more than three hundred dollars. He prays that, the said ordinance may be declared illegal and void, and that the police jury of the parish of Concordia be enjoined from proceeding to execute it, or from in any manner interfering with his rights to the exclusive privilege of said ferry, or disturbing him in the possession and enjoyment of the same and for general relief,” &c.
    The defendants, in their answer, admitted the existence of the ordinance of the police jury, and that the treasurer of the parish was about proceeding, under that ordinance, to sell the privilege of keeping a ferry for a limited time across the Mississippi, from a point in the parish of Concordia opposite to the town of Natchez. All other allegations in the petition are denied. The defendants denied the existence of any such grant as that under which plaintiff claimed. If such a grant was ever made, they alleged that the conditions annexed to it had not been complied with by the grantee, as he never exercised the privilege. They allege the forfeiture of the grant by non-user, and the legality of the ordinance of the police jury; and pray for damages, and that the plaintiff may be perpetually enjoined from interfering with their right to establish a ferry.
    The grant under which the plaintiff claims, and the papers connected with it, are in the following words:
    Seiíor Commandante del Puesto de Concordia:

      Thomas Thompson con el debido respeto a Vm. dice, que no estando estable-cido aqui hasta ahora mas que cinco habitantes, no podemos hacer los gastos de un camino sin que el Rey nos pagare nuestro trabajo, porlo qual habiendo el Señor Gobernador concedido a Don Juan Heverand la traviesa del Rio Negro por hacer el camino a su costa desde el dicho Rio hasta el Bayú Cocodrilo, el supli-cante propone que desde este Puesto hasta el Bayú Cocodrilo, hara también el camino de treinta piés a cuarenta de ancho a sus expensas, contal que se le conceda tener la traviesa desde la habitación del suplicante hasta el desembarca-dero de Natchez como un privilegio anexo á su habitación, para lo qual promete tener chalanes & proposito y demas embarcaciones para el efecto. Gracia que espera recibir 'de Vm.
    Thomas Thompson.
    Concordia, 27 de Enero de 1801.
    Señor Gobernador General:
    La propuesta que hace el suplicante es igual a la que Vs. a Don Juan Heve-rand. El corto numero de habitantes que hay en este Puesto no permite que se empleen un trabajo tan cpstoso sin que se les satisfaga, como le expongo á Vs. en oficio de esta fecha, asi atendidas las Ventajas que resultaran recomienda a Vs. la solicitud del suplicante quien es sujeto capaz de cumplir lo que propone-siempre que fuere del agrado de Vs. concederle el privilegio que solicita. Con-cordia, 31 de Enero de 1801.
    Jh. Vidal.
    Nueva Orleans, 19 de Febrero de 1801.
    Conformándose Thomas Thompson á hacer el camino que propone 6 sus ex-pensas bajo la inspección del commandante del Puesto de Concordia, se le concede el privilegio anexo a la habitación que posée, para que de ella, con exclusion, haga las traviesas del Rio, cobrando solamente los precios mas equitativos á los transeúntes, que se fixarau con acuerdo del dicho commandante.
    El Marq,. b» Casa Calvo.

      En virtud que Thomas Thompson lia cumplido con las condiciones que ofreció en este su memorial y que executó bajo mi inspección según lo dispuesto por el Seilor Gobernador General en su anterior decreto; se le entrega el presente para que haga constar y posea el derecho exclusivo, que tiene déla traviesa desde este Puesto al desembarcadero de Natchez.
    Jn. Vidai..
    Concordia, 16 de Febrero de 1802.
    The plaintiff established his right to the plantation and ferry by transfers from those claiming under the original grantee. The evidence on the different points submitted to the decision of the court, is fully stated in the opinion delivered by Rost, J. There was a judgment below perpetuating the injunction obtained by the plaintiff, and declaring him to be entitled to the perpetual and exclusive right of keeping a ferry from the town of Vidalia, as originally granted to Thompson, as a right attached to his plantation. From this judgment the defendants appealed.

      Elgee, for the plaintiff.
    A ferry is “ a liberty by prescription, or the Ring’s grant, to have a boat for passage over a great stream, for carriage of horses and men, for reasonable toll.” Termes de la Ley. 3 Black. 219. 12 East. 334. Viner’s Abridg. veibo Ferry. 3 Maulé and Selw. 247. The law will presume that the Marquis de Casa Calvo was authorized to make the grant, from the fact of his having made it. JDeval v. Choppin, 15 L’a. 566. 6 Peters, 727. 7 Ibid. 96. 8 Ibid. 310, 447, 455, 664. 9 Ibid. 134, 464, 734. 10 Ibid. 331. 12 Ibid. 437. The instrument under which plaintiff claims is rather a contract tljan a simple grant. A consideration was paid for it, and it is consequently no monopoly. 11 Peters, 567. Contracts founded on a consideration should receive a favorable interpretation. 1 Condens. Rep. S. C. U. S. 446. 2 Ibid. 132. 11 Peters, 597-8. The grant under which plaintiff claims gives a right of ferry in perpetuity, and an exclusive privilege. The right is attached to the plantation, to endure as long as the soil. Exclusiveness is an incident of such a grant. 3 Kent, 458. 11 Peters, 597. The evidence is conclusive that the conditions of the grant were complied with. There is nothing novel in the grant of the exclusive right to keep a ferry, in consideration of cutting out a road. The records of our own legislation show this. 1 Moreau’s Dig. 478, 480, 483, 484, 486, 489, 490, 492, 494. To ascertain the extent of the rights of ferry granted, the instrument must be construed as such an instrument would be construed between individuals, that is, that no ferry should be established within a reasonable distance of the one granted. The establishment of any ferry which would diminish the tolls of the first grantee would impair the obligation of the contract.
    Plaintiff’s rights have not been lost by non-user; they have been exercised ever since the grant. The place at which the ferry was kept up was selected solely for the public convenience. It is not pretended that any one else has ever exercised the right of keeping a ferry within the space over which plaintiff’s exclusive right extends.
    The case of the Charles River Bridge Co. v. The Warren Bridge Co. et al., 11 Peters, 420, is in favor of plaintiff, for had that case presented the features that his does, it would have been decided differently. Even as it was, in a bench of seven judges, three were for the plaintiffs — justices Story, Thompson, McLean. That case was decided on the following points: 1st. That there was no contract between the plaintiffs and the legislature of Massachusetts. 2d. That there never was a transfer tp'tfre plaintiffs of the ancient ferry rights, 3d, That if there ever was such a transfer the ancient ferry rights were not exclu-4th. That when the legislature incorporated plaintiffs, they never agreed See opinion of Judge McLean, See also opinion of Judge Sto-not to incorporate another Bridge Company. pp. 560, 563, 564, 567, 569, 577, 578, 583. ry, p, 590, et seq.

    The police jury had no right to delegate authority to any individual, to sell the exclusive privilege to a ferry for any number of years. Their powers are limited to the establishment of ferries. 2 Moreau’s Dig. p. 242.
    It will be argued that the grant to the original grantee was not exclusive. The words con exclusion establish the contrary. But it is said, that it is exclusive only for the front of the Thompson tract; and that the establishment of another ferry, within five hundred yards of plaintiff’s, does not violate the exclusive rights of the latter. All the authorities are directly the reverse, and this too even when there are no words of exclusion in the grant. See 3 Blackstone, 219. 3 Kent, 458 and 447. 11 Peters, p. 626 et seq.

    The contemporaneous exposition of a contract by the parties to it, is one of the best guides to its correct interpretation. Ever since the date of the grant, the ferry boat, for the public convenience, has started at the point it now does. The spirit of the contract is fulfilled ; none of the parties ever deemed, that to start from the front of the Thompson tract was essential; if it had been, they would, in 1801, have run the ferry from that point, or Thompson would have had the concession in express terms higher up the river. Vidal, the commandant and secretary of the Spanish government, who lived at the place, had an eye himself to this privilege when it was conceded, but who, at all events, gave a high price, $4,000 cash, for it in 1803, must be presumed very ignorant of Spanish customs and usages to have suffered the grant to be lost, by not starting his boats from the proper point on the river. The presumption rather is that, the wise and just rule of the common law was incorporated amongst the Spanish usages; that the grantee of the ferry, had a reasonable distance up and down the river, within which no rival ferry would be permitted. Our own law of 1805, passed immediately after the change of government in 1805, inhibiting a ferry from being set up within one league up and down the river of the ancient ferry, leads me to conclude that, such was the well settled custom of the country. However, for the Spanish governor to grant the exclusive privilege of a ferry for a valuable consideration, and to reserve at the same time to himself the right to establish another ferry immediately alongside of the one first granted, would be to violate the first principles of justice, and repugnant to common sense. The term in the grant “ attached to the plantation" establishes its perpetuity. It was not to Thompson or his heirs, but it was an incorporeal hereditament, which should exist as long as the land to which it was attached.
    R. N., and A. N. Ogden, on the same side.
    The grant to Thompson having been made in consideration of work and labor to be performed by the grantee, is a contract; and the act of the defendants in establishing another ferry is a violation of the 10th sect, of the 1st art. of the constitution of the United States. It will be contended that the words of the grant confine the privilege to the Thompson tract; but the petition of the grantee, the certificate of the commandant, and the grant itself show that, the port of Concordia and the town of Natchez were the termini of the ferry.

      Stacy, for the defendants.

      Thompson acquired nothing by the grant from the Spanish authorities, Spain, by the treaty of San Ildefonso, of the 1st October, 1800, having ceded the province of Louisiana to France, and thereby parted ’ f . r J 1 with all authority over the public domain, &c. Congress have declared all grants made by the Spanish government subsequently to the date of that treaty, “ to be, and to have been, from the beginning, null and void, and of no effect in law and equity.” See 3d vol. Laws U. S., p. 609, s. 14. Foster v. Neilson, 2 Peters, 204. All such grants, unless confirmed by the United States, remained null. See also De Annas v. Mayor fyc. of New Orleans, 5 La. 105. The right of establishing ferries appertained to the sovereign authority, and had been transferred to France. The authority of Spain was limited to such acts as might be necessary to preserve the colony until delivered to the French authorities. It could not make a grant in perpetuity of a privilege such as that claimed by Thompson. Polk v. Wendell, 9 Cranch, 87. Vattel, ch. 20, p. 109. Civil Code, art. 444. New Orleans v. United States, 10 Peters, 731.
    The grant being a divestment of a portion of sovereignty, if valid, is subject to be revoked at the will of the sovereign. Dartmouth College v. Woodward, 4 Wheaton, 629. All that the grantee can require is indemnification for the money expended by him under it. Civ. Code, art, 138. By the act of 19 April, 1805, 2 Martin’s Dig. 360, the legislature provided for the establishment of ferries throughout the territory, and repealed all previous grants. This law recognized no existing right. After its promulgation no one was authorized to keep a ferry unless licensed according to its provisions. By the stat. of 25th March, 1813, 2 Martin’s Dig. 392, the exclusive control and regulation of ferries is given to the police juries. They are authorized to establish ferries, and to let them out annually to the highest bidder.
    The grant was not intended to be perpetual. Its language does not warrant such a pretence. The service, or labor for which the grant was asked, does not authorize such a conclusion. Nothing can be claimed under a grant by implication. Jackson v. Reeves, 3 Caines, 302, Carnal v. Wheeler, 2 Barn. & Adolph. 792. Dock Company v. Marche, 8 Ibid, 42. Charles River Bridge v. Warren Bridge, 11 Peters, 548 et scq. An ambiguity in the grant must operate against the grantee. Civ. Code, art. 1710. A license or grant is revocable, unless a certain time be fixed. Taylor v. Waters, 7 Taunt. 374. 5 Moore & Payne, 712. The grant to Thompson does not purport to have been made for any determinate period.

      Thompson never complied with the condition of the grant by making the road; nor has any ferry ever been kept up from Thompson’s plantation; the only ferry ever established was from a point a quarter or half a mile above that plantation. The grant has thus been forfeited by non-user. No title could be acquired by plaintiff by prescription. The State cannot be prescribed against. Parish Treasurer v. Russell, 3 La. 95. Though the plaintiff should be considered as entitled to keep up his ferry, the police jury is authorized to establish others. 11 Peters, 546. No Spanish law or custom has been shown prohibiting the establishing another ferry at any point above or below the Thompson tract. The exclusive privilege of Thompson could not extend beyond the limits of his plantation.
    The ferry from Thompson's tract was a different one from that reserved for the post or village of Concordia. See 2 Am. State Papers, pp. 763-4. Vidal never used the ferry granted to Thompson; but usurped the one at Vidalia, which belonged to the municipal domain of the village (2 Recopilación, pp. 100, 110, 111, 112), and the administration of which belonged to the intendant a'0De- N. Recopilación, 104, 105. The grant of the ferry by the Governor General was a nullity. The grant could only have been made by the Intendant. The right of granting or selling the public lands, which was vested in the Governor by a royal letter of August 24th, 1770, (N. R. p. 460) was withdrawn by a royal order of 22d October, 1798, and transferred to the Intendant. Ibid, pp. 477, 245, 234, 238.

      JET. A. Bullard, on the same side.
    The counsel for the plaintiff, contends that the police jury, under the act of 1813, had no authority to let out a ferry for a longer period than one year. To this we answer: 1st. That no such ground for an injunction is set forth in the petition; and secondly, tnatthe plaintiff has no right to contest the ordinance on that ground. It is obvious that the only-issue made up by tbe pleadings is, whether the ferry established by the ordinance of the police jury interferes with the franchise claimed by the plaintiff, and whether the police jury had a right to establish a ferry at all. So far as that question is involved, it is quite immaterial, whether the ferry was to be sold out every year, or every third year.
   The judgment of the court was pronounced by

Rost, J.

This case has been already before the Supreme Court. The facts it discloses and the questions it presents, are fully stated in the opinion of the court. See 19 La. p. 533. It was remanded for the admission of evidence rejected on the first trial. That evidence is now in the record, and the case is before us, on an appeal taken by the defendants from a judgment rendered against them on the second trial. The first ground on which they aBk a reversal of the judgment is, that the Marquis de Casa Calvo was not governor of Louisiana at the time he made to Thomas Thompson the grant under which the plaintiff claims, and that, if he had been, he had not the power to make such a grant.

Casa Calvo was a brigadier general in the Spanish armies, and when the colony was delivered to France, he acted as commissioner with Salcedo, the then governor. It does not appear that he ever had a commission from the King of Spain as governor; but it is proved that, Gayoso having died in 1799, he was sent here by the captain general of the island of Cuba, whose jurisdiction extended over the province of Louisiana, to act as governor ad interim, until the arrival of the person who should receive a commission from the King, and that he did act in that capacity, from the beginning of October, 1799, till June or July, 1801, at which time governor Salcedo arrived. Among the witnesses is an officer who served under him during that time, and a merchant who was enabled by his assistance to introduce a cargo of merchandize from New Orleans into Vera Cruz. The evidence is uncontradicted and bears upon its face the character of truth. As it is well known that military officers of high rank were often entrusted by the Spanish government with important civil offices in the colonies, we consider it proved that Casa Calvo was governor, de facto, on the 19th of February, 1801, at which time the grant bears date.

The question whether he had power to make the grant cannot be determined in this controversy. The defendants cannot question his authority. Unless a prohibition to make such grants is shown, we will presume the authority from the fact of its being exercised. Neither he, nor the intendant, considered that the prohibition to grant lands, extended to the granting of privileges to keep ferries; and we will not, without sufficient cause, disregard the construction they both put upon their respective jurisdictions. The grant of the land on which the ferry is established was made by the intendant; that of the ferry by the governor. The presumption is that both acted within the sphere of their powers. Devall v. Choppin et al. 15 La. 566, and the cases there cited. See, also, The United States v. Arredondo et al. 6 Peters, 691.

The effect of the treaty of San Ildefonso upon the grants made by the Spanish government subsequent to its date, is a question not open to our enquiry. We are not called upon to pass upon the sovereign rights and powers of the United States, or of the State of Louisiana. Whatever these maybe, the police jury of the parish of Concordia has no wawant for their exercise, and is bound by the acts of a former government so long as the present government suffers those acts to remain undisturbed. It is proper to state, however, that the validity of the grants of land made by the Spanish government after the date of that treaty, is recognised by the fourth section of the act of Congress, passed in 1805, for the adjustment of land claims in Louisiana. 1 Martins’ Dig., 244.

Upon the second ground taken by the defendants that, the conditions of the grant had not been complied with, a great deal of evidence has been introduced on both sides, It shows that Thompson did make a road; and several witnesses testify that it was sufficient for the line of travel of those days. It is well known that at that period, and long after, inland roads in Louisiana were nothing but traces. The Spaniards carefully avoided the labor of cutting down trees; they found it easier to make a mark upon them, and use them as guides through the wilderness. When the cane and underwood were cut away and the trees blazed, the road was considered as made. The roads on the banks of navigable streams were the only exception. These were royal roads, and the timber upon them was to be cut down and removed, by an express condition in the grants of the land fronting upon them. Walker, one of the witnesses, states that the road passed partly through cane-brakes and partly through the open woods; that the cane and some of the small trees and cypress knees were cut away, and the trees blazed. Other witnesses state that it was occasionally travelled by carts and wagons. It is true that other witnesses testify that the road, when they saw it, was not thirty feet wide. In that part of it which lay through the open woods, it must have been exceedingly difficult to tell whether it was, or was not, of the proper width. Where, on the other hand, the cane had been cut down, it must have grown up again immediately afterwards, so as to leave open only the trace which travellers followed. Thompson was not required by his grant to keep the road in repair. We think that, at this distance of time, there is sufficient evidence to corroborate the certificate of the commandant, under whose inspection the road was to be made, that the conditions of the grant had been substantially complied with.

The defendants further allege that, if the grantis otherwise valid, it has been lost by non-user, because the ferry, instead of being kept in front of the Thonvp-son tract of land, has been kept all the time on land of the same proprietor from a quarter to half a mile higher up the river. The defendants forget that the ferry has been all the time under the absolute control of their police regulations. If the landing has not been kept in the proper place, it is their act and their fault, and they cannot make this a cause of complaint against the plaintiff. If the ferry has, in fact, been kept at the most convenient place, they cannot now allege against him, that he went out of his way with their consent, and for the public accommodation.

This brings us to the last question in the case : What are the extent and limits of the grant? The question of its duration we dismissfrom our consideration. Whatever may be the power of the State to limit the duration of such grants, there is not, to our knowledge, any solemn expression of legislative will fixing the time beyond which they will cease to have effect; and, so long as the State abstains from interfering, the grant must endure.

1st. The plaintiff contends that the grant, under which he claims, originated in a contract, by which the exclusive privilege of keeping a ferry in front of his plantation was given to Thomas Thompson, as a consideration for making a road, which he did make.

2d. That the words con exclusion in the grant mean that, the'sovereign or his agents shall not establish another ferry within a reasonable distance of his own.

3d. That the ferry attempted to be established at Vidalia by the defendants is on the same line of travel, and in the immediate vicinity of his grant; and that, if it goes into operation, the obligation of the contract under which he holds will be impaired, and his profits greatly diminished, contrary to the true intent and meaning of the grant.

We consider it our duty in all cases to pay great deference to the decisions of the Supreme Court of the United States, and not to differ from them but for grave reasons. In cases over which that tribunal has appellate jurisdiction, as it has in this, wp consider their decisions as the true exposition of the law. The questions under consideration have all, in our opinion, been determined in The Charles River Bridge v. The Warren Bridge and others, 11 Peters, 420. According to the doctrine laid down in that decision, when an individual, or a corporation, alleges that the State has surrendered forever its power of public accommodation on an important line of travel, the community have a right to insist “ that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the State to abandon it does not appear.” The court further say that, in order to entitle themselves to relief, the parties must show that the legislature contracted not to do the act of which they complain. The charter, say the court, contains no such stipulation; there is no exclusive privilege given over the waters of Charles river, above or below the bridge; no engagement from the State that another shall not be erected, and no undertaking not to sanction competition, nor to make improvements that may diminish the amount of its income.

The words con exclusion, found in the grant of the plaintiff in this case, do not make up for the want of all those stipulations. Under the rule laid down by the Supreme Court, if any other meaning can be given to a grant besides that which would surrender forever a franchise and a part of the sovereign power, that meaning must be preferred. The words con exclusion have another obvious meaning — it is that of the prohibition in the act of 1813. 1 Moreau’s Dig., 475. That prohibition does not mean that police juries may not establish ferries nearer than two leagues from each other, on the same stream. Its meaning is that, when the police jury have established a ferry and leased it, no person, not licensed, shall have the right to cross men and horses, for money, at the distance of a league up and down the river from the landing places of the licensed ferry. Police juries may establish as many ferries as they please.

We consider that in this case, all persons living within a reasonable distance of the ferry were inhibited by the grant from interfering with it, so as to reduce its profits; but we perceive no engagement on the part of the grantor that another ferry shall not be established in the vicinity, when the increased population of the country may make it necessaiy. The grant contains no undertaking not to sanction competition, nor to make improvements that may diminish the income of the grantee. The Thompson tract of land, to which the ferry is annexed, is from a quarter to a half mile below the town of Vidalia. Suppose that a similar grant had been made half a mile below the city of New Orleans, could it be seriously contended that no other ferry could be established within the three miles above that point, which the city of New Orleans occupies. The mere statement of the case shows that the surrender of the power, if it can at all be made, is at least not to be presumed. The difference of population between New Orleans and Vidalia, does not affect the rule by which the case is to be decided.

The legislature has given to police juries full power to establish ferries, when they deem it necessary or expedient. Whether the establishment of a ferry at Vidalia by the defendants, be a proper exercise of the discretion vested in them, is a question which we are not competent to decide.

For the reasons assigned, it is ordered that the injuction be dissolved, and that there be judgment in favor of the defendants, with costs in both courts. It is further ordered that the rights of the defendants to recover from the plaintiff, such damages as they may have sustained by the suing out and continuance of the injunction be reserved.

       Eustis, C. J„ did not sit on the trial of this case.


source: Caselaw Access Project

author: Bümami, L Rost, J.

license: Public Domain

text:
    Lawrence, Syndic, v. Young.
    In an action by the syndic of an insolvent to recover a tract of land claimed by a purchaser at a judicial sale, the plaintiff will not be concluded by the sheriff’s deed and return. He may show that the requisites of the law have not been complied with, though the defendant were an innocent purchaser, for a sound price, without notice, and previous to any suit to cancel the sale. Per Curiam: Ho forced alienation will divest the title of the defendant in execution, unless the forms of law have been complied with. One who exhibits a judgment, execution, and sheriff’s deed, makes out only ap'imd facie title.
    An execution having been levied on land belonging to defendant, he consented that it should be sold without the formalities of law, at a place where no bidders could be expected to attend, save one who had agreed with him to purchase it, and to whom it was adjudicated, for a price much below its real value. Six days after, defendant made a cession of his property to his creditors, showing a large amount of debts, and little or no properly. Held, that being insolvent at the time of the sale, and his property being the common pledge of his creditors, his consent to dispense with the forms of law, by which the value of the pledge was diminished, was a renunciation affecting the rights of others, and contrary to public order and good morals, and consequently void. C. C. 11.
    THE defendant appealed from a judgment of the District Court of Tensas, Curry, J., in favor of the plaintiff.

      Shaw, for the plaintiff.

      Sanders, Rowley, Frost, Dunlap and E. D. Farrar, for the appellant.
    The defendant, who was a purchaser without notice and for a fair price, from the original purchaser at the sheriff’s sale, is protected by the judgment, execution and return, and sheriff’s deed. He cannot be affected by the fraudB of others, nor by any irregularities in the sheriff’s sale. I Mart. N. S. 388. 8 Ibid. N» S. 342. 9 La. 305. 11 La. 48, 108, 408. 1 Story’s Equity, 373. 7 Dana, 506. Any irregularities in the sheriff’s sale were cured by the agreement of the judgment debtor. If this agreement was fraudulent, it should have been attacked by the syndic of his creditors, by a revocatory action, within one year from the date of his appointment, which was not done.
   In this case the opinion of the court was delivered at the last term, at Alexandria, by

Bümami, L

The syndic sues for a tract of land as the property of his insolvent, which he alleges was illegally sold at a pretended sheriff’s sale to one Bowman, and since transferred by him, and which has come into the possession of the defendant. He alleges that the sale has already been declared null and void as to Bowman. See Lawrence, Syndic, v. Bowman, 6 Rob. 21. The defendant sets up his title, and calls in his warrantors. His title rests upon the sheriff’s sale; and the question is, whether the original owner was divested of title by the proceedings in that, case, as against the present defendant, a purchaser without notice. The whole matter in controversy is brought to our notice by a bill of exceptions in the record, taken to an opinion pronounced by the district judge. The question was submitted to him, whether the plaintiff, as syn-dic, could go behind the sheriff’s deed and return, and show that, in fact, the requisites of the law had not been complied with, though the defendants were innocent purchasers, for a sound price, without notice, and previous to any suit for the cancelling of the sale. The court ruled that the plaintiff might introduce evidence to that effect, drawing a distinction between conventional and judicial sales, that in the latter even an innocent purchaser must see that all the forms of law are actually fulfilled, and cannot rely on titles apparently regular.

■ This view of the law appears to us to be sound and correct. No forced alienation is valid, and divests the title of the defendant in execution, unless the forms of law have been complied with. It is true that he who exhibits a judgment, execution, and sheriff’s deed, makes outa primd facie title ; but if the regularity of the proceedings be contested, and it be shown that the forms of law were not complied^with, the purchaser acquired no title, and could confer none upon his vendee. If the defendant in this case had sued out a monition, and the homo-logation of the sale had been opposed, on the grounds of nullities in the proceedings which preceded the forced sale, it is clear the sale would have been annulled. It is by a compliance with legal forms that the consent of the owner to the sale by the sheriff is supplied, and without such forms the sheriff has no warrant to sell. The evidence before the court below, and now before us in the two cases by consent of parties, shows that there was no valid sale, and justifies the judgment rendered by the court below. The judgment of the District Court is therefore affirmed with costs.

A rehearing having been allowed in this case on the question, whether the irregularities in the sheriff’s sale were cured by the agreement of the judgment debtor, the opinion of the court was pronounced, at the present term, by

Rost, J.

This case has been decided in part by the late Supreme Court, and the only question presented to us on the rehearing is, whether the irregularities in a sheriff’s sale may not be waived by the judgment debtor. The rule laid down on that subject in the 11th article of the Louisiana Code, is clear and free from ambiguity. “Individuals may renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to public order or good morals.” The judgment debtor in this case clearly comes within the first of these exceptions, and we think within the others also. His land was seized under execution, and he consented that it should be sold without the formalities of law, and at a place where no bidders could be expected to attend, save the person who had made an agreement with him to buy it, and to whom it was then and there adjudicated, at a price much below its real value. Six days after this sale, the judgment debtor made a surrender of his property to his preditors, and filed in court a schedule showing a large amount of debts, and little or no property to satisfy them. He was manifestly insolvent when the sale took place; his properly was then the common pledge of his creditors ; and any renunciation by which the value of that pledge was diminished, must be held to be void and of no effect.

The nature of the deed by which the present defendant acquired the land, would go far to satisfy us that he had notice of the defects of the title; but whether he had, or not, the nullity of the sheriff’s sale must be fatal to him.

Judgment affirmed.


author: King, J.

text:
    Kirkland v. The New Orleans Gas Light and Banking Company.
    Where property has been sold by a wife, with the concurrence of the husband, the sale cannot he annulled on the ground that the property belonged to the community. The husband having concurred in the sale, it must be regarded as their joint act, and binding on both.
    Where the purchaser of an immovable is in possession under a conveyance not void upon its face, in order to annul the sale for fraud, recourse must be had to a direct action. The question of fraud cannot he inquired into collaterally, in proceedings commenced by a seizure. But this rule does not apply to the sale of moveables. C. C. 2415.
    APPEAL by the defendants from a judgment of the Court of Rapides, Boyce, T.

      Hyman and Waters, for the plaintiff. Brent and O. N. Ogden, for the appellants.
   The judgment of the court was pronounced by

King, J.

This suit was commenced by an injunction to arrest the execution of afieri facias, on the ground that the property seized under the writ belonged to the plaintiff, and not to the judgment debtor.

In February 1843, Spurlock conveyed to his wife, by public act, his plantation, slaves, and a large quantity of moveable effects, for $33,305, which was its estimated value, ascertained by sworn appraisers called for the purpose. The consideration of the saléis stated to be, to replace the paraphernal and separate property of the wife, alienated by the husband during the marriage, which amounted to $10,950. The residue of the price the wife retained in her hands, by the terms of the contract, to be applied to the discharge of the mortgage debts of her husband, next in order after her own. On the 17th of December, 1844, Spurlock’s wife, assisted by her husband, sold, by act under private signature, to the plaintiff, JSirkland, a large quantity of moveable property for the price expressed in the deed, of $4,900, the receipt of which was acknowledged. The sale was accompanied by a delivery of possession, but the act does not appear to have been registered. The New Orleans Gas Light and Banking Company, being judgment creditors of Spurlock, issued a fieri facias, under which the sheriff seized, on the 21st of December, 1844, the greater part of the property embraced in this last conveyance, and this writ has been enjoined.

The defendants allege that the sale from Spurlock to his wife is illegal and void upon its face; that the effects sold by Spurlock's wife to the plaintiff belonged to the community, could not be sold by the wife, and were liable to seizure for her husband’s debts; and, finally, that the sale to the plaintiff was fraudulent, simulated and void. The plaintiff contends that his title to the property seized cannot be collaterally questioned, by commencing with a seizure; but that the defendants should have resorted to a direct revocatory action, for the purpose of setting it aside.

The question of the legality of the sale from Spurlock to his wife does not properly present itself in this case, and need not be discussed ; for, admitting it to be invalid as contended for, and that the property conveyed to the plaintiff belonged to the communinify, the conveyance was made by the wife, with the concurrence'of her husband, and must be regarded as their joint act, binding upon both, if otherwise valid.

With regard to immovables it has been repeatedly held that, when a person is in possession under a conveyance, not void upon its face, the question of fraud cannot be inquired into collaterally, by commencing with a seizure. 14 La. 426. 13 La. 553. There are obvious reasons why the rule which has obtained in relation to real property, is wholly inapplicable to moveables in a case like this. The title to the former is required to be in writing and registered, which gives notice to third persons, who may enquire into its character and validity, and within twelve months institute a revocatory action. Civil Code, art. 2415. The sales of moveables are not required to be in writing. Civil Code, art. 2416 They pass by verbal transfers, and creditors are furnished with no means of ascertaining the title and the character of the possession by which they are held. When the sale is by private act unrecorded, as is the case in the present instance, the contract itself is unknown to the creditor, and the law cannot certainly require, that he should institute an action to annul a transfer, of whose nature and even existence he is ignorant, before attempting to enforce his judgment upon the property which it professes to convey. It is the constant prac ■ tice in suits commencing by attachment, to seize property in the hands of third persons claiming to be owners, and to test the right of ownership in that litigation. It has never been contended that, in such cases, the creditor should resort to an action for the purpose of annulling the title of the third possessor, before attaching the property in the hands of the latter; and yet the reasons which would suggest the propriety of the revocatory action in the one case are equally applicable to the other.

The judge below instructed the jury that, “if they were of opinion, from the evidence, that the articles sold we2’e placed in the possession and under the control of the plaintiff, before the seizure, they ought to find for the plaintiff.” “That the law is, even in cases of contracts made in fraud of creditors, when delivery attends or follows the contract, that the creditors of the vendor must respect the possession of the purchaser, and their remedy is to have the contract set aside first by an action of revocation.” Under these instructions the jury found for the plaintiff. We think that the -judge erred in his charge, and should have instructed the jury that, they could enquire into the origin and character of the transfer and possession from Spurlock and husband to the plaintiff, and that if they were of opinion, from the evidence, that the act was fraudulent or simulated, they ought to find for the defendant.

The conveyance was made to the plaintiff, under circumstances well calculated to throw suspicion upon the character of the transaction. Spurlock and wife were on the eve of absconding from the State, and of removing their slaves and other portable effects to Texas. The sale was made on the 17th of Dec., and, on the 21st of the same month, the date of the seizure, they had disappeared, and all of the property which they had left behind was claimed by the plaintiff. This property had not been removed from the plantation at the date of the seizure. They had conveyed the whole of their moveable effects, leaving, as it appears, other creditors to a large amount, unsatisfied. With this evidence before us, we cannot determine whether the verdict of the jury was founded upon the charge of the judge in relation to the respect due to the possession of the plaintiff, or to their convictions, from the evidence, that the transfer was not fraudulent or simulated, but had been entered into in good faith. It therefore becomes necessary to remand the cause, for the purpose of being proceeded with in accordance with the principles announced in this opinion.

The judgment of the District Court is therefore reversed, and the cause remanded for further proceedings according to law; the appellee paying the costs of this appeal.


author: Slidell, J.

text:
    Spurlock v. Mainer.
    Plaintiff's husband conveyed to her a plantation, slaves, andmovoables, appraised at a certain sum. The act recited that, it was made in order to replace an amount of paraphernal property converted by the husband to his own use, equal to about one-third of the estimated value of that conveyed to her; that the wife, being, for the amount of her paraphernal property, the oldest mortgage creditor ofher husband, accepted, with a reservation of her mortgage rights against the subsequent mortgage creditors of her husband, it being expressly stipulated that the conveyance should be regarded as null, if its effect should be to extinguish her rights as first mortgage creditor; and that the difference between the amount of her para-phernal claim and the appraised value of the property, is detained by her to discharge the other mortgages on the property. The act declares that the wife thereby assumes the administration of the property. A judgment creditor of the husband having seized a portion of the gathered crops made on the plantation by the wife, she enjoined the execution: Held, that the contsact was one of sale; that being between a husband and wife, and not included in any of the exceptions mentioned in art. 2421 of the Civil Code, it is, as to third persons, absolutely null; that the stipulation by the wife in relation to the amount to be applied to the discharge of the subsequent mortgages, whether she be considered as having thereby bound herself personally to discharge them, to the amount of the excess of the appraised value over her claim, as a part of the price, or not, would be separated from the rest of the contract, and being illegal, vitiates the whole; that if the wife be considered as having contracted a sale and bound herself personally to discharge the mortgages as a part of the price, the stipulation is prohibited by art. 2421 of Civil Code, which declares that a wife cannot bind herself for her husband, or conjointly with him, for debts contracted by him before or during the marriage; that if considered as not having relinquished her mortgage nor bound herself personally, the contract is illegal, as its effect would be to entitle her to receive the fruits and revenues of property of three times the value of her debt, and which would otherwise have been received by the husband as a fund for the payment of his creditors, while the whole capital of her claim would be reserved as an anterior incumbrance ¡ and that the sale, being absolutely null as to thirdjpersons, the property nevor ceased to be community property, and was liable to seizure by any creditor of the husband, without resorting to a direct action to annul the sale.
    APPEAL from the District Court of Rapides, King, J.
   The judgment of the court was pronounced by

Slidell, J.

On the 13th February, 1843, James D. Spurlock executed a notarial act, which was duly recorded on the following day, in favor of his wife, the present plaintiff, by which he conveyed to her a plantation in the parish of Rapides, with its buildings and improvements, and also a number of slaves, and certain furniture and other moveables. After describing the property and stating it to be the property of the vendor, he declares that he had caused a sworn appraisement of it to be made, by appraisers chosen by himself and wife, who had valued it at $33,305, which appraisement is annexed to the act. He then declares that he has received and converted to his own use, of the paraphernal property of his wife, the sum of $10,950 ; and to show the manner and form in which said moneys had been received, he refers to certain acts which are stated to be of record in the office of the parish judge'of that parish, and gives then' respective dates ; the acts, however, are not annexed. The wife then declares that she has a legal mortgage on all the real property of her husband for the restitution of these sums, to have rank and effect as evidenced by said acts so recorded. The husband then declares that, in order to replace the effects of his wife so alienated by him, he sells and delivers to her the said lands, slaves, and moveables, to hold the same, to her, her heirs and assigns, for’ever. The wife then accepts and stipulates as follows : “ Now the said Eliza Spurlock doth accept this sale and transfer in and for consideration of the sum of $33,305. To the extent of the sum of $10,950, she is the oldest mortgage creitor of said J. E. Spurlock, and she accepts with the express reservation of her [rights of mortgage against all posterior mortgagees of her said husband, it being expressly stipulated that this act is to be regarded as null, if, by the acceptance of a transfer of this character, her rights are to be regarded as extinguished, and persons holding subsequent rights on the properly may exercise an hypothecary action free from hers, as an anterior incumbrance. The balance of the consideration, to wit, the sum of $22,355, the said Mrs. Eliza Spurlock retained in her hands, to discharge the next oldest mortgage creditors of her said husband to said amount.

“ And now the said Spurlock, J. D., doth covenant and agree to and with the said Mrs. J2. Spurlock, that he will warrant and for ever defend the above described premises, against the claim or claims of all persons whatever, his own heirs and assigns. And now the said Mrs. JS. Spurlock declared that, she does by these presents resume the administration of the above described property, as her separate paraphernal effects. The production of, or mention herein of, any certificate of mortgages, is waived and dispensed with.”

The act contains no recital of the names of, or amounts due to, the mortgage creditors. In September, 1844, more than a year having expired, Mainer, a judgment creditor of Spurlock's, the husband, caused the land and crops to be seized under a fieri facias, but subsequently released the land, retaining the seizure upon the gathered crops only. The plaintiff, who had previously notified the sheriff of her title under the notarial act, and made a formal notarial protest against the parties, then sued out a writ of of injunction against the sheriff and Mainer, alleging her title by the notarial act and her separate admin-¡station, and praying for the usual relief. To this the defendant, Mainer, answered, by a general denial.

At the trial of the cause the plaintiff offered in evidence the act of sale from her husband, the inventory and appraisement, and certificate of their having been recorded; also an admission that the cotton seized was produced on the plantation, and by the labor of the slaves so conveyed. She also proved that she had been living on the plantation since the date of the sale i that the property was assessed for taxes in her name ; that the accounts of the commission merchant, to whom the crops had been consigned since the sale, were kept in her name; and that the cotton going from the plantation since that date had been marked with her initials. She gave no proof of the alleged indebtedness of her husband to her, as stated in the sale. On the part of the defendant it was proved that, the husband continued to live at the plantation, with his wife and family, as before; that the husband appeared to take the same interest in the management of the plantation as before the sale, there being however an overseer upon the plantation; and that the husband apparently exercised the same superintendance as owner, making puschases of the usual necessaries of clothing for the slaves, &c. The court below gave judgment perpetuating the injunction, and the defendant has appealed.

A very strange and annomalous instrument is here presented; evidently con-taived for the purpose of a fraud, it does and undoes in the same breath. It purports to be a dation en paiement up to the sum of $10,950 for para phernal claims, for which the wife declares herself to be the oldest mortgage creditor; and, in the very same sentence, declares that she accepts the sale with the express reservation of her rights of mortgage against all posterior mortgagees of her said husband, and expressly stipulates that the act of sale is to be regarded as null, if, by the acceptance of a transfer, her rights are to be regarded as extinguished, and persons holding subsequent rights may exercise an hy-pothecary action, free from hers, as an anterior encumbrance. One thing is certain — either her paraphernal claims were not intended to be satisfied and paid by this sale, or they were so intended to be. On either hypothesesis we have come to the conclusion that this sale is an absolute nulity on its face, as against third persons. This conclusion results from the application of a few familiar principles, established by the positive legislation of our Code. The law, from wise considerations upon which itNwould be superfluous to enlarge, has thought proper to declare husband and wife incapable of contracting with each other during the marriage, except only in certain specially enumerated cases. The incapacity is the general rule. Can the case before us be brought within the exceptions ?

This is a contract of sale. It has not only the form of a sale, but is expressly declared to be so, by the contracting parties. Article 2421 of our Code declares that a sale between husband and wife can take place only in the three following cases:

1st. "When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.

2d. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal, or other effects, alienated.

3d. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.

There being no judicial separation in this case, this sale either falls under the second exception to the general disability, or else has no legal existence as against third persons. Now, under the first hypothesis above stated, that the parapher-nal claims of the wife were not intended to be satisfied by this sale, it is manifestly an absolute nullity as against third persons ; for to make that satisfaction only, were these parties authorized to enter into the contract of sale, by the exceptional prouision above stated. If, however, it be possibie to rfeconcile the complicated and anomalous stipulation of these parties with regard to the payment of the wife’s claim, with a fair construction of this exceptional provision, there still remain other objections to this sale, which create, in the opinion of the court, insurmountable obstacles to the plaintiff’s success.

There are but two interpretations which can be given to that part of the act which stipulates as to the mortgage creditors of the husband. One is that, by this act she promised and assumed, as part of the price, that she would discharge the next oldest mortgage debts of her husband, to the amount of $22,-355. The effect of such a stipulation we shall first consider, observing that this is the interpretation which the plaintiff’s counsel gives to this act. Article 2421 being exceptional to the general disability, parties acting under it must keep themselves strictly within the exception. In the present case, the contract over-steps the law. It has a two-fold aspect, and a two-fold consideration. It sells property, valued by their own appraisers at $33,305, not simply to replace her paraphernal effects, but upon consideration also, under the interpretation which we are now applying, that the wife shall discharge the next oldest mortgage debts of her husband, to the amount of $22,355. Now here the parties have positively transgressed a clear prohibition of the Code. The wife, whether separated in property by contract, or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage. Civ. Code, art. 2412.

This contract is one and indivisible. Human ingenuity cannot separate its provisions, without leading to results which would be monstrous, not only as far as creditors are concerned, but even as to the other contacting party. We cannot say that the contract is good so far as the wife is reimbursed, and void for the liability which she has unlawfully assumed towards the husband’s creditors. This would leave her with an estate worth $33,305, for a consideration of $10,950, under a contract expressly made in consideration of a price of $33,305. We cannot selectfor the wife a portion of the property, up to the value of her claim, at our own arbitrary discretion, and restore the residue to the husband, cancelling the wife’s liability for the residue of the price. The contract was entire; a sale of an entire estate, for an entire consideration; and yet two thirds of that consideration contracted in violation of an express legal prohibition, and consequently ab initio null and void as to the third persons. The nullity then is such, from its nature, as to contaminate the whole contract. The nature of the sale is such that it cannot subsist, but by the validity of all its parts; necessarily, therefore, the nullity of one portion draws with it the nullity of the whole.

The plaintiff1’s counsel, while he admits that the intent of the instrument was that she should assume her husband’s debts, defends it on the ground of necessity, the property being encumbered by mortgages. Such a consideration cannot excuse the violation of an express legal prohibition, even if the necessity existed. But the necessity did not exist, because the law authorized her to bring suit against her husband, ascertain her rights by judgment, seize and sell his property, and thus extinguish the mortgages of other creditors, which the act expressly alleges were secondary to her own, and obtain an unincumbered title. Had she pursued this course, it would not have been necessary to divest her husband of the entire estate, which, by this instrument, she has attempted to do. There are more than fifty slaves conveyed by this deed, which are valued in the appraisement at $18,660. This property was susceptible of division, and was much more than sufficient to pay her claim; or, even if she had taken a sale from her husband of a portion of these slaves up to the value of her claim, her equity, as creditor by a first mortgage, which she alleges herself to be, would have amply protected her against the attack of a subsequent mortgagee.

We have thus considered this case, upon the interpretation invoked by the plaintiff as the true meaning and intent of the instrument; and, viewed in that light, we have seen that it is void. But if we are to give it any other interpretation, there is but one other which we can adopt, and that is that,, as to the $22,355, of mortgage claims, being the residue of the consideration of this sale, she did not intend personally to assume their payment, but to take the property subject to them, with a condition that, in the event of the property being seized by the subsequent mortgagees, her mortgage, in its full force, should revive and take its precedence. It is not surprising that she should not have claimed this interpretation, as, upon analyzing the sale upon this construction, it involves an inherent turpitude.

What is the true practical effect of such a contract ? First, that the wife’s mortgage is not really intended to be paid by the sale ; and secondly that, though the interest on the wife’s claim, even if it had been judicially ascertained, could not possibly have exceeded eight per cent, she, by this arrangement, would receive the entire revenues of an estate, which the act of sale and the sworn ap-praisement, declared to be worth $33,305. Assuming these revenues to be worth an amount equal to the highest rate of lawful interest on that capital, a yearly sum of more than $2500 is thus put by this conttact into the pocket of the wife, and the entire capital of her claim of $10,000 reserved as an anterior incumbrance, to be held over the husband’s creditors; for the act expressly declares the property thus acquired to be paraphernal, and stipulates for the wife the separate administration, that is, reserves the fruits and revenues to her separate reception and use. The fruits and revenues, in the absence of this sale, would have been received by the husband, and have furnished a fund for the payment of his debts.

Such being the practical operation of this contract, what is to be its legal effects 1 Is it valid, or is it absolutely null as to third persons ? The only right to make a sale at all by the husband to his wife, is found in the exceptional article already cited. The law created that exception to enable the husband to protect the interest of the wife, honestly; but for nothing else. The cause must be legitimate — the honest payment of the wife’s claim. These parties have transcended the exception, and made a contract to commit a most patent and palpable fraud on the husband’s creditors. They have attempted to pass beyond the exception of the law into forbidden ground. The incapacity is manifest, and absolute nullity, as to third persons, is its inevitable consequence. As we have already said, this sale is indivisible. The contract is one and entire, and the whole contract must stand or fall. A court of justice cannot hesitate when the question is, whether we shall extend a mere exceptional capacity, to a contract violating the intention of the exception, fraudulent on its face, and converting an authority, given only to secure honestly and fairly the rights of the wife, into a weapon to strike down the rights of her husband’s creditors.

Waters, for the plaintiff. Brent and O. N. Ogden, for the appellant.

The contract in this case is not to be assimilated to a contract fraudulent against creditors, but made by parties not affected by a legal incapacity to contract. Yet, even in such a case, where the fraud was patent upon the face of the instrument, creditors have been' allowed to proceed by a direct seizure, without a resort to the revocatory action. 13 La. 553.

From what we have said, the solution of the question presented by the injunction, that is, whether the defendant had a right to seize the property in dispute, obviously follows. The sale of the plantation and slaves being absolutely null and void as to creditors, by reason of the legal incapacity so to contract, the title of the plantation and slaves, as to creditors, never passed out of James D. SpurlocJc. It remained community property; and its gathered crops, the subject of the seizure, were community property, and were lawfully seized. When a contract is thus absolutely, and ah initio, void on its face, as to third persons, the complaining creditor cannot be driven to an action to have the nullity judicially declared. When a title is thus void, it cannot be a basis of prescription. See Pothier, Procedure Civile. Part 5, chap. 4, arts. X and 2. Ibid., Dela Prescription. Part 1, chap. 3, §1. Also Civil Code, articles above cited, and arts. 1784, 2360, et seq.

It is therefore decreed that the judgment of the court below be reversed; and it is further decreed that the injunction be dissolved, and that there be judgment in favor of the defendants, with costs in both courts.


text:
    Bres, Executor, v. Booth.
    To entitle] a plaintiff to sequester mortgaged property, on the ground of his apprehension that it will be removed out of the State before he can have the benefit of his mortgage, he must make oath to the facts which induce his apprehension. C. P. 275, § 6. It is not sufficient to swear that he apprehends the removal. The stat. of 20 March, 1839, s. 6, has not dispensed with this requisite of the Code of Practice.
    The surety in a sequestration bond must reside within the jurisdiction of the court which grants the writ. Where the surety is a non-resident, plaintiff cannot cure the defect by substituting afterwards a sufficient surety.
    APPEAL fom the District Court of Caldwell, Wilson, J.

      McGuire and Ray, for the appellant.
    The affidavit is sufficient. Lea-venworihv. Plunkett, 7 La. 243. 1 Robinson, 531. 10 Ibid. 147, 152. If the surety was insufficient, plaintiff should have been allowed to substitute another. 1 Mart. N. S. 185. 6 Ibid. N. S. 673. 10 La. 447. 3 Rob. 440. 9 Ibid. 55. If sufficient grounds appear on the face of the papers to authorize a new sequestration, the first should not be set aside. 3 Mart. N. S. 481. 7 Ibid. N. S. 406.

      Downs and Garrett, for the defendant.
    The affidavit was insufficient. 5 Mart. N. S. 43. 14 La. 267. 4 Rob. 462. The surety not residing within the jurisdiction of the court, was not such as the law requires; and this defect could not be cured by the substitution of another, after tire sequestration was issued. Civil Code, arts. 3011, 3033. Code of Practice, art. 276. 14 La. 245.
   The judgment of the court was pronounced by

Slidell, J.

The sequestration in this case was properly dissolved. 1st. Because the plaintiff did not set forth in his affidavit, either directly or by reference to the allegations of the petition, the facts which induce his apprehension that the mortgaged property will be removed, as required by the 6th clause of article 275 of the Code of Practice, which requisition, applicable to a case of this nature, we do not consider as dispensed with by the act of 1839, Clark v. Glover, 14 La. 266. 2d. Because the surety on the sequestration bond was not resident within the jurisdiction of the court, and this defect was not cured by the subsequent offer of a new surety. Gossett v. Cashell, 14 La. 246.

The appellee asks an amendment of the judgment as regards two allowances made to the sheriff, with privilege on the property sequestered. These orders form no part of the judgment rendered against the plaintiff, from which the plaintiff has appealed. They are separate and independent decrees or orders, made in favor of the sheriff, who is not before us as appellee, and against the property sequestered. Moreover, the record does not show them to be orders rendered contradictorily with the plaintiff. They appear to have been made on the ex parte application of the sheriff; and, as regards the plaintiff, we are without evidence to test the necessity or correctness of the charges.

Judgment affirmed.

         On the trial of a motion to dissolve tbe sequestration, plaintiff offered to substitute a new surety, residing in the parish, to be bound for any damage which had or might occur in consequence of tho issuing of the writ; but the offer was rejected as coming too late.


text:
    Handy v. Sterling, Under-Tutor.
    Where a judgment for a separation of property, though susceptible of execution, remained unexecuted till the marriage was dissolved by the death of the wife, it must be considered as null, and the community as unaffected by it C. C. 2402. The judgment of separation is null, not only as to creditors, but between the parties themselves.
    APPEAL from the court of Probates of Ouachita, Sharp, J.

      Purvis, for the appellant. R. W. Richardson, for the defendant.
    The judgment of separation is a nullity. Civ. Code, arts. 2402, 2403. 11 La. 521. 1 Rob. 431.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff alleges that, having married his wife Harriet, the mother of the minors, represented by the defendant as under-tutor, she subsequently obtained a judgment of separation of property, and that some years thereafter he paid sundry sums of money on her account, which he now claims from her estate. The under-tutor answered by a general denial. At the trial the plaintiff offered in evidence the record of the suit of Harriet Handy against her husband, by which it appears that a judgment of separation of property was rendered, in the year 1831. By this judgment it was decreed that, “ she be separated in property from her husband, and that she have full administration of her separate property; that she recover of her husband certain slaves,” (which, in her petition, she had alleged she acquired by donation from her mother,) “ and that they be set apart as her separate property.” It was alleged by the wife in her petition that, these slaves were in the joint possession of herself and husband; and by an act of purchase, which also appears in that record, the slaves appear to have been bought in the joint name of the husband and wife, though by an instrument under private signature, subsequently executed, the husband acknowledged that he had received them as her pa-raphernal property, and had himself paid no part of the price. There was no evidence to show that this judgment had ever been executed, either by process of execution, or by an authentic act.

It appears by the evidence that the monies alleged to have been paid by the plaintiff, were paid to certain mortgage creditors, holding mortgages on a plantation, which, although it is not so expressly alleged or proved, we infer from the record, was acquired by the wife by purchase during the marriage, and after the decree of separation ; and we shall so assume the case to be, in our present inquiry.

By art. 2402 of the Civil Code, it is declared that, “ the separation of property, although decreed by a court of justice, is null if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a Iona fide non-interrupted suit to obtain payment.” As the judgment in this case was that, the wife recover of the husband, with costs, the slaves mentioned in the judgment, the apparent title of which was in their joint names, and of which the possession was alleged to have been joint, it was a judgment susceptible of and requiring execution, and should have been executed by a writ of execution and possession, or by an authentic act. No such writ appears to have been executed or even to have issued, no authentic act was passed, nor is the judgment even shown to have been notified to the husband.

But it is said that the nullity proceeding from non-execution, is a nullity as against creditors only. The Code has made no distinction between creditors and the parties themselves, in article 2402. We are not aware of any other article restricting the generality of the terms there used; and we find that under the Code Napoléon, which, with some modifications notpertinentto the present en-quiry, contains a similar provision, the nullity is considered as existing between the parties, as well as with regard to creditors. Toullier, vol. 13, title 5, chap. 11, § 74, &c. Pailliet, Code Civil, and notes on article 1444 of the Code Nap.

From the date of this judgment of separation till the alleged payments for which the husband asks relief, a period of ten years intervened. During that entire period the judgment remained unexecuted; and, so far as the record informs us, so remained till the dissolution of the marriage, by the death of the wife. We have no hesitation in saying, under these circumstances, that the judgment of separation must be regarded as a nullity; that we have no'evidenee of a dissolution of the community; and that the property acquired by the wife, after the separation was decreed, must be considered as community property, and the mortgages created upon it as community debts, and their payment by the husband as made on account of the communily, and therefore not forming a basis for the present suit. Judgment affirmed.


author: SiiDEiiU, J.

text:
    Stroud et al. v. Humble, Sheriff, et al.
    Where the value of property seized under a fi. fa. from a parish court, exceeds the amount to which its jurisdiction is limited, an injunction may be obtained, by one claiming to be owner of the property, from a District Court.
    APPEAL from the District Court of Caldwell, Willson, J.

      McGwire and May, for the appellants. Mayo, for the defendants.
   The judgment of the court was pronounced by

SiiDEiiU, J.

The sheriff, upon executions from the Parish Court against William Stroud, having seized certain slaves, the plaintiffs instituted, in the District Court for the parish of Caldwell, two suits against the sheriff and seizing creditors, and obtained writs of injunction, by which the execution of these writs respectively was enjoined. Among other grounds, some of which are peculiar to a portion of the plaintiffs, and which it is unnecessary to notice, the plaintiffs allege that the property seized is not the property of William Stroud, the defendant in execution, but of themselves, as heirs of their mother, who acquired the slaves by inheritance from her father. The plaintiffs also claim damages for the illegal seizure and slander of title, and pray for the restoration of the property, and to be quieted in their title. They allege the value of the slaves to be at least $1500. The two suits have been consolidated, and are presented to this court in one record, upon appeal from orders of the court below, dissolving the injunctions.

The plaintiffs had a right to resort to the jurisdiction of the District Court, although the executions issued from the Parish Court. See the case of McDonogh v. Doyle, 9 Rob. 303.

The objections that, the names of the parties in the suit in the Parish Court, and the titles of those suits, are not sufficiently stated in the bonds, are untenable. The plaintiffs in the judgment, as well as the sheriff, are named as obli-gors ; and the recital of the writs, aided by the references to the petition of injunction, abundantly designate the process enjoined, and the suits in which such process issued. The injunctions were improperly dissolved, and must abide the final decision of the suits on the questions of title.

It is therefore decreed that the judgments appealed from be reversed ; the injunctions thereby dissolved to remain in full force, as though said judgments appealed from had not been rendered, and to abide the final decision of said consolidated causes on the merits; the appellees paying the costs of this appeal.


author: Suideli,, J.

text:
    Copley v. Ross et al.
    Xo appeal will lie from a judgment-on a claim for three hundred dollars, on which no interest had accrued before the commencement of suit. The fact of the plaintiff's claiming* interest from a prerions period, if the demand he manifestly Hctilious, will not entitle him to an appeal.
    APPEAL from tile District Court of Ouachita. A judgment as to one of the defendants was rendered by Willson, J., and the cause, was subsequently tried as to the other defendant before Curry, J. The plaintiff appealed from both judgments.

      Copley, appellant, pro se. Heydenfeldt, on the same side. Baker, Sharp, McGuire and Ray, for the defendants.
   The judgment of the court was pronounced by

Suideli,, J.

This suit is brought to recover the amount of a fee, alleged to have become dire by the contract of Ross, in his capacity of under-tutor of a minor, with Downs & Copley, attorneys at law, who subsequently transferred their partnership claim to the plaintiff, one of the partners. The original petition, which was filed in February, 1844, alleged that Downs & Copley were, by agreement, to receive the same fee as should be charged by McGuire, another attorney also employed in the cause; and that the fee charged by McGuire was either two hundred, or two hundred and fifty dollars. The petition asked judgment for that amount, without interest. By an amended petition the plaintiff alleged that he had since been informed that McGuire charged $300, and that as, according to the contract, Downs & Copley were to be allowed the same fee, he, therefore, prayed for judgment for $300, but not for interest. Subsequently the plaintiff again filed an amended petition, in which, reiterating the allegation that by the agreement Downs Sf Copley were to have the same fee as might be charged by McGuire, he avers that McGuire charged $300, and took in payment from the defendants their note for $300, dated 13th January, 1844, and bearing interest at ten per cent, from date till paid; that he is therefore entitled to $300, with interest at ten per cent per annum from 13th Jan. 1844.

The agreement to pay the same fee to Downs & Copley as should be charged to McGuire, which is the basis of the plaintiff’s suit, cannot carry with it a liability for the ten per cent interest. The agreement of the defendants with McGuire, to pay him ten per cent interest for the time which he chose to allow them, when, on settling with them, he took their note, payable at a future day, is a contract entirely independent of the charge itself of $300. From the contract between these parties and the charge of McGuire as alleged, there arose a liability for $300, upon which no interest could accrue anterior to this suit, without either an express stipulation for interest, or a putting in default, neither of which is alleged. On the face of the petition, the claim for interest is a mere empty assertion, not only unsustained by any allegations justifying such claim, but repugnant to the thrice repeated allegation, that the plaintiff was, by agreement, to have the same fee as should be charged by McGuire. His charge was $300, and the stipulation for interest was a new agreement independent of that charge, and the consideration of which was, not the professional services, but an indulgence granted by McGuire to his debtors.

If we look beyond the allegations of the petition to the evidence adduced, the claim for interest, from January, 1844, is still found to be a mere groundless assertion.

An assertion, made under such circumstances, is not a foundation for the jurisdiction of this court; and it is our duty to apply in this case the principle invoked by the defendants, and sanctioned by repeated decisions of our predecessors, that this court must refuse its jurisdiction, when the excess of the sum claimed over $300 is manifestly a fictitious demand. See 16 La. 184. 3 Rob. 143. 9 Ibid. 153. Appeal dismissed.


text:
    Wall v. Bry et al.
    Where interrogatories ordered to he answered by a party, wore not served on hhn in consequence of the belief of the clerk that the acts of his counsel had dispensed with the necessity of a service, and the court refuses to order them to he taken for confessed, time should he allowed to enable the party propounding the interrogatories to.ohtain an answer.
    Where the endorser of a note, before maturity, writes on it a waiver of protest, he cannot relieve himself from the effect of his agreement, on the ground that the waiver was without consideration. Per Cwiiam •• The holder may have regulated his conduct, in not protesting the note, by the endorser's waiver; and to relieve the latter, would he to sanction a breach of good faith.
    Where the endorsers of a note, write on it, before maturity, “ We hereby waive protest, and acknowledge ourselves as fully bound for the within note as if the same was regularly protested,” it is a waiver of protest and demand of payment, the words "regularly protested" importing a protest made on due demand; hut it does not dispense with notice. Such agreements must be construed strictly.
    Where it is proved that, by a verbal agreement between the payee and endorsers of a promissory note, the endorser was to he held responsible only in case payment could not be obtained from the maker, the indorser must he regarded as a surety, and he is not entitled to the strict notice required to charge an indorser under the commercial law.
    APPEAL by the defendant Hamilton, from a judgment of the District Court of Ouachita, Curry, J.

      R. W. Richardson, for the plaintiff.
    The interrogatories not having been served on plaintiff’s counsel, could not be taken for confessed. Stat. of 10th February, 1843. 12 La. 600. The waiver of protest should be construed in conformity with the provisions of the Civil Code, arts. 1940, 1941, 1945, 1946. It should be construed in the sense in which the person malting the promise believed the opposite party to have accepted it. 9 Rob. 308.

      Garrett, for the appellant.
    The waiver extended only to the pretest — not to the demand and notice. A waiver must be express and special. 4 Mart. N. S. 126. Chitty on Bills, p. 390, and cases cited in notes 2, 3. Ib. pp. 466, 485. Story on Promissory Notes, p. 272. Union Bank v. Hyde, 6 'Wheaton, 592.
   The judgment of the court was pronounced by

Slidell, J.

The defendant Hamilton was sued as endorser. In his answer he alleges that the plaintiff is not the true owner of the note, but that it belongs to one Burr, who expressly agreed with the respondent and the prior endorser, that he would take steps to make the money out of the makers before taking any proceedings against the respondent, and that he would only look to the respondent in case he was unable to make the money out of the makers; that the endorsement was made on these conditions; and that the suit had been brought in the name of Wall to deprive the respondent, of his defence. To this answer the defendant appended interrogatories to the plaintiff, asking him if the note was not the property of Wall, whether he knew of the agreement pleaded when he received the note, &c. The defendant, upon affidavit, obtained an order that the plaintiff should answer. This order was entered on the 2d November, 1844. In October, 1845, the cause was tried, and the defendant moved that the interrogatories, not having been answered, be taken as confessed. He supported his motion by the testimony of the clerk of the court that, on the 3d February, 1845, he issued two commissions to take testimony at the request of the' plaintiff’s attorney, together with copies of the answer and interrogatories, and believing that this dispensed with the service of the answer and interrogatories and order of court, a copy of the same was not made out. The court refused to order the interrogatories to be taken as confessed; and the defendant then moved the court for time to obtain the answers of the plaintiff, which also the court refused.

We think the court erred. Without considering whether the order to take pro confesso was properly refused, we are of opinion that at least the application for time should have been granted. The defendant and the clerk, by the course pursued by the plaintiff’s attorney, may have fairly inferred that the attorney was cognizant of the order, and had taken out the commission and copy of interrogatories to procure the answers of his client, a non-resident. Justice therefore requires that we should remand this cause, in order to enable the defendant to have the benefit of the plaintiff’s answers. As the plaintiff’s attorney has now full cognizance of the order to answer, it will be his duty, within' a reasonable time, to procure his client’s answers, under a commission to be applied for and taken out by himself, under the penalty of an order pro confesso, if it be not done.

In remanding the cause it is proper to express an opinion with regard to the effect of the waivers of protest, endorsed on the notes prior to their maturity. They are in the following form:

“We hereby waive protest, and acknowledge ourselves as fully bound for the within note, as if the same was regularly protested.

Wm. A. Hamilton,

John Calderwood.”

It is proved that the endorsement of the defendant, Hamilton, was made some months anterior to the endorsement and signature of the waivers. The plaintiff contends that the effect of such a waiver is to dispense with demand, protest, and notice; the defendant, that it dispenses with protest only. The latter moreover urges that it was not binding, because made without consideration. The plea that the waiver was without consideration cannot avail the defendant. It was made before the maturity of the note; the holder may have regulated his conduct in not protesting the note by the defendant’s waiver, confiding in it; and to relieve him from it now, would be sanctioning a breach of good faith, and permitting that party to gain by his own disingenuousness.

But a more serious question-remains — what is the fair construction and extent of this waiver 1 Does it merely dispense with protest, or does it also dispense with demand and notice ? We consider this agreement as dispensing the plaintiff from proof of demand, because the expression is: “We acknowledge ourselves as fully bound for the within the note as if the same was regularly protested.” The term “regularly protested” fairly imports a protest made upon a due demand. Does it go further, and dispense with notice ? The party waives protest, and is certainly to be held to be as fully bound as if the note had been duly protested. But mere protest would not bind the defendant. Hence if we are to interpret this agreement according to its literal terms, the plaintiff, when he had offered this agreement in evidence, stood in the same position as though he had offered a notarial protest, and nothing more.

But it is said that the agreement should receive a liberal interpretation, and be construed as implying a waiver of the further requisite of notice. In the case of The Union Bank v. Hyde, the question was upon the construction of an instrument strongly resembling the present. “ I do request that hereafter any notes that may fall due in the Union Bank, on which I am or may be indorser, shall not be protested, as I will consider myself bound in the same manner as if the said notes had been, or should be, legally protested.” This instrument was held, by the Supreme Court of the United States, to be ambiguous as to whether it amounted to a waiver of demand and notice. They however admitted parol proof of the course of dealing and conduct of the parties under this agreement on previous occasions, to show that it was their understanding that the demand and notice, required by law to charge the endorser, should be dispensed with. 6 Wheaton, 572.

Justice Story, in his commentaries on the law of promissory notes, says that agreements of this sort are always construed strictly, and are not extended beyond the fair import of the terms. Thus, for example, an agreement to waive notice of the dishonor of the note, will be no excuse for the want of a due presentment of the note to the maker for payment. Story on Notes, p. 315. See also Bailey on Bills, 245.

We think then that it is our duty to give a strict construction to this instrument, and in doing so we cannot consider it as waiving notice, because that waiver could only be brought in by implication, and an implication not necessary to give effect to the agreement. It must be conceded that under our statute with regard to protests of promissory notes, a protest, taking the term as used by the parties to mean a notarial protest, is advantageous to the holder for two reasons. First, it imposes a liability for interest from the date of the protest upon the endorser, who is fixed by a fulfillment of the additional requisite of notice ; and secondly, it preserves an authentic record of the presentment for payment, more advantageous than the memory of an individual, as being not liable to be obscured by time, or lost by death, and proving, per se, the facts which the public officer therein alleges. These advantages the holder, without expense or trouble, secures to himself by the written waiver under consideration. He stands in the same position as though he had a notarial protest, exhibiting, in the usual and authentic form, presentment, refusal, and protest. Some ■ thing then was gained by the owner of these notes by this agreement; and by so construing it, we give effect to the fair import of the terms used, without bringing in, by mere implication, stipulations which the literal and plain words of the instrument do not comprehend, and thereby violating the principle that, no man is to be presumed to give up his legal rights.

There is another view of this case, not discussed at bar, but which, in order to facilitate the future trial of the cause, we proceed to notice. If the defendant should succeed in establishing the agreement, which he has alleged, respecting the exercise of the holder’s recourse against him, it is obvious that, in doiDg so, ire will withdraw his contract from the category of an ordinary endorsement, and present himself in the aspect of a surety. In that event he would not be entitled to the strict notice, required to charge an endorserunder the commercial law.

It is therefore decreed that the judgment of the court below against the defendant Hamilton be reversed, and that this cause be remanded for further proceedings according to law; the appellee paying the costs of this appeal.

       The plaintiff was a non-resident.


text:
    Neal v. Her Husband.
    The courts of this State have no jurisdiction of an action to dissolve a marriage contracted in another State, where the husband continues to reside, for causes originating there. The residence of the wife in this State will not give jurisdiction to its courts. 0. C. 48, 122. The stat, of 2 April, 1832, relative to divorces, does not apply to such a case.
    APPEAL from the District Court of Union, Copley, J.

      Ray,[iov the appellant. May, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

This is a suit by the wife against the husband, for a divorce a vinculo matrimonii. The plaintiff alleges that she is a resident of this State, that she was married to the defendant in the State of Arkansas, and that her husband still resides in Arkansas. The grounds alleged are the husband’s ill treatment, adultery with a concubine kept by him in the common dwelling, &c., all occurring in the State of Arkansas. She prayed that an attorney might be appointed to represent hjm, he being a non-resident. The attorney appointed filed an exception to the jurisdiction of the court, which was sustained, and the plaintiffhas appealed.

The court below did not err. Under the well settled jurisprudence of all the States of this Union with whose jurisprudence we have any acquaintance, and in view of the principles expressly established by our own statutes, and especially of those provisions of our Code which declare that, a married woman has no other domicil than that of her husband, and that she must follow him wherever he chooses to reside, it is manifest that no court of this State should entertain this suit to dissolve a marriage, contracted in Arkansas, where the husband continues to live, for causes there originating. It is unnecessary to detail the reasons of an opinion so obviously correct, and to cite adjudged cases. They may be found at large in Story’s Conflict of Laws, chap. 7. See also Civil Code, articles 48, 122, &c.

The statute of 1832, which allows the wife to prosecute her suit for divorce contradictorily with an attorney appointed to represent the husband, has no application to a case like the present. The case there contemplated is that of a husband, who being charged with an infamous crime, has fled from this State to avoid punishment. Judgment affirmed.


text:
    Sawyer v. Arnold.
    In an affidavit for an attachment it is sufficient that plaintiff swear that, defendant is about to leave the State "permanently.” It is not necessary to swear that he is about to leave the State “forever.” C. P. 240, 243.
    from the District Court of Catahoula, J.

      Sawyer, appellant, pro se. Phelps, on the same side.

      Purvis and O. Mayo, for the defendant.
    The remedy by attachment is harsh, and those who resort to it must comply strictly with the forms of the law. 8 La. 586. 3 Rob. 232. The affidavit is insufficient either under art. 243 of the Code of Practice, or under the 5th sect, of the act of 20th March, 1839, amending it. The letter of the law should not be disregarded under pretence of pursuing its spirit. Civ. Code, art. 13.
   The judgment of the court was pronounced by

Slidell, J.

This suit was brought by attachment, and the defendant moved to set aside the attachment on the ground of the insufficiency of the affidavit. The affidavit declares that the defendant is about leaving the State “permanently.” It is contended that it should have been, that he was about to leave the State “forever.”

Article 240 of the Code of Practice enumerates the cases in which a creditor may proceed by attachment. One of these is, “ when such debtor is about leaving permanently the State,” &c. In article 243, which prescribes the oath, the expressions are “a declaration made under oath at the foot of said petition, stating the amount of the sum due to him, and that his debtor is either on the eve of leaving the State forever,” See. These are provisions on the same subject matter, and must be construed together. In a practical view, the danger to the creditor is as great when his debtor is about leaving the State permanently, as when he is about leaving it with the positive intention and certainty that he will never return. We consider it a fair interpretation, construing the two articles together, to treat the expressions as equivalent, and to deem the law as complied with by using either in the affidavit. A contrary interpretation would lead to the absurd conclusion, that the law authorizes an attachment when the debtor is about to leave the State permanently, but will not accord the benefit of that remedy unless the creditor swear to the existence of a state of facts, beyond that in view of which the remedy was expressly and unequivocally given. The court below, therefore, erred in dissolving the attachment.

It is therefore decreed that the judgment of the court below be reversed; and it is further decreed that the motion to dissolve the attachment be dismissed, and the case remanded for further proceedings according to law; the appellee paying the costs of said motion, and also of this appeal.