author: Tt.rt.ev, J.

text:
    Succession of J. Y. de Egana.
    — On a Motion to Dismiss.
    The party who voluntarily executes, either partially or in toto, a judgment rendered for or against him, or who voluntarily acquiesces in or ratifies, either partially or in toto, the execution of that judgment, is not permitted to appeal from it.
    In default of funds sufficient to discharge the debts and legacies of sums of money, the testamentary executor shall cause himself to be authorized by the Court to sell the movables and the slaves not employed on plantations, and if they are insufficient, the immovables, to a sufficient amount to satisfy those debts and legacies.
    The testamentary executor shall proceed to the sale above mentioned and to the payment of the debts of the succession, in the same manner as is prescribed for curators of vacant successions.
    It is inadmissible to say, that the plaintiff could thus partially execute the award, and repudiate those portions of it which were not directly comprehended in the execution.
    An account homologated, so far as not opposed necessarily approves and ratifies quoad the creditors who have not opposed the tableau.
    The principle is well settled, that a party is not permitted to do an act which he is at liberty to abstain from, and, by a mere reservation, screen- himself from the legal consequences of that act. Protestatio actui contraria non prodest.
    APPEAL from tbe Second District Court of New Orleans,

      Howell, J., acting Judge. Morgan, for the motion.
   Tt.rt.ev, J.

This case is before us on a motion to dismiss ; and a refer-

ence to some of the most prominent facts is, we think, necessary for a proper understanding, and a correct appreciation, of the grounds upon which the motion is submitted.

On the 11th January, 1864, the judgment now complained of was rendered, and on the 1st February, of the same year, after a trial which lasted four days, on the appellee’s prayer for a rehearing, was reaffirmed and maintained by the lower Court.

On the 23d of the same month, the’appellees were ruled’ to show cause why they should not forthwith comply with the judgment, or in default .thereof be visited with such pains and penalties as the Court, in pursuance of law, may deem proper to inflict.” This rule was made absolute, on the 1st of March, so far as to order the delivery into the hands of the executor, of the cash and notes specially referred to in the rule. On the 26th April, another motion was filed against M. A. de Lizardi (the liquidator’s agent), asking that he be ordered to show cause why “ he should not be imprisoned for refusing to comply with the judgment of the 11 ih June, 1864; and, on the 18th May, this rule was made absolute,” so far as to order the defendant to deliver to the executor, -within five days, all moneys, bills, notes, books, assets, accounts, vouchers and evidences of debt in his hands, belonging to the succession of J. Y. deEgana, and which are mentioned in the judgment of the Court, rendered on the 11th January, 1864.

Two writs were then issued to the Sheriff — a writ of possession on the 13th, and a writ of fieri facias on the 28th June.

On the 13th July, a rule was taken by M. J. and M. A. de Lizardi, upon the executor and the Sheriff, in which they allege that they had made a full and complete settlement with the Sheriff, and prayed that the executor and the Sheriff be ordered to show cause why the judgment should not be declared satisfied ; and they (the said Lizardis) discharged from all liability in the premises.

This rule was made absolute on the 27th of July, and the Sheriff, on the 1st August, returned satisfied, the writs of possession and of fieri facias, herein above mentioned.

On the 3d November the executor presented a petition, in which he states that he files with it his tableau No. 2, showing a balance in his hands, for distribution among the creditors, of $54,813 53, and a document attached, A. A., showing a settlement made by him with the liquidator, under the execution and orders of Court.

In his tableau No. 2, the executor charges himself as follows :

By balance on hand, as per former tableau.................. $3,475 17

Less the following payments made on judgment of Court :

Clerk Second District Court..................$ 268 90

Durant & Hornor............................1,000 00

Advertising.................................. 12 00

- 1,280 90

$2,194 27

Charles DeLassus’ note, $764, and interest, paid............. 930 80

Cash, from liquidator, M. J. de Lizardi, as follows: (seeSheriff’s

receipt, No. 1)...........................................

Amount deposited in Citizens Bank, in the joint names of Caballero, executor, and Lizardi, liquidator.................. 45,702 13

Cash in bank bills......................................... 97 99

(For the above items, see document A A.)

Cash, from the liquidator (see Sheriff’s receipt, No. 2), document A A............................................... 16,337

$65,262 30

From which deducting the privileged claims, amounting to... 10,448 77

There remained in the hands of the executor a balance, to be distributed, of.................•..........................$54,813 53

In document A A (see appendix, tableau No. 2), which is filed with and referred to in the tableau, it clearly and distinctly appears that the note of Charles DeLassus, the sum of $45,702 13, that of $97 99, and that of $16,337 11, which, after deducting the payment of the privileged claims, constituted the balance of $54,813 53, proposed to be distributed. viere received by the executor from, Mr. Lizardi in satisfaction of the judgmen subsequently appealed from.

On the 14th November, one of the creditors, Mr. Pierre Landreaux, filed an opposition to the executor’s tableau No. 2, in which he says that he has no objection to the distribution of the sum of $54,813 53, now intended to be distributed herein ; but, on all other points, he"opposes the homologation of the tableau.

On the same day, twelve other creditors — Henri Bassie, "Widow Poydras de Lallande, Ulysse Ducasse, Jacques Descrimes, Eugene Bochereau & Co., Mark N. Boule, "Widow H. Pargoud, Caroline Heyc Yincent, Leopold Jeannet, Charles Gross, Charles A. Hensler and Widow Andre Castelle- — filed a similar opposition, in which, adopting the very words of Mr. Landreaux, they say “ that they have no objection to the distribution of the $54,813 53, intended to be distributed herein;” but, in all other respects, they opposed the homologation of the account.

On the 26th of the same month, twenty-nine creditors (B. Brugier, A. LeBlanc, Widow LeCoul, W. A. Gasquet, Widow Jourdan, G. Brusle, A. Boger, A. Beryorot, E. Bousseau, B. B. Aticoin, Daniel Jese, Widow Charles Fortier, Widow Harris, tutrix; The Star Insurance Company, F. Gruña, executor of Y/m. Yogel; L. & A. LeBeur, E. Durrive, Arthur Shiff, James Flint, Wm. Avery, executor of McKenna; The Louisiana State Bank, Carleton Hunt, King & Devine, transí errees, of Skiers, King &Co., Warneken & Co., B. A. Boure, executor of J. L. Harris; F. P. Ducongé, A. Merle Daubigné, Reickart & Co., and Cramer & Co.) came into Court, and in their petition of opposition to the homologation of said tableau No. 2, prayed the Court to order that the sum of $54,813 53, now admitted by the said executor to be in his hands, shall be distributed to the creditors.

On the same day and month, another creditor (R. H. Bailey) filed his opposition to said tableau, and said he had no objection whatever to the distribution of the sum of $54,813 53, intended to be distributed by said tableau.

On the 1st of December, four other creditors (the New Orleans Canal and Banking Company, Castello & Harispe, W. O. Denegre, and West & Benshaw) joined in an opposition to the said tableau, in which they pray that the said sum of $54,813 53 may be forthwith distributed by the said executor among the creditors, according to the amount due them, without interest.

On the 22d of the same month, five of the above named opponents, to wit: The New Orleans Canal and Banking Company, Castillo & Harispe, W. O. Denegre and West & Benshaw, and Cammaek and Carleton Hunt, applied to the Court for a devolutive appeal, which was granted to them.

On the 2d day of February, Í865, the very last day of the year within which they were permitted to appeal, the other opposing creditors, with the exception of B. B. Aucoin, Daniel Jex and Widow Charles Fortier, joined with the Louisiana Mutual Insurance Company, and Messrs. A. & M. Heine, two creditors who had not opposed the homologation of the tableau, in a petition praying for a devolutive appeal, which was also granted to them.

Now, with these facts, which appear from, and are clearly established by the record, we are called upon by the appellees, M. J. & M. A. de Lizardi, to dismiss the above mentioned appeals, upon the ground that the appellants have voluntarily executed the judgment appealed from, or have voluntarily acquiesced in and ratified the execution of it.

The appellants, on the other hand, strenuously deny that they ever did execute or acquiesce in the execution of a judgment, which they, on the contrary, denounce as containing “egregious” errors, highly prejudicial to their interests.

It is not our province, at this stage of the proceedings, to examine into the merits of the case, and say whether the judgment of the lower Court contains egregious errors, and whether those errors are prejudicial to the interests of the appellants, or to those of the appellees.

Our task is simply to determine whether, by their voluntary acts in executing or ratifying the execution of the judgment, the appellant's have lost their right of appeal, and cannot be listened to, in this Court.

It cannot be controverted that, under the laws and jurisprudence of this State, the party who voluntarily executes, either partially or in toto, a judgment rendered for or against him, or who voluntarily acquiesces in or ratifies, either partially or in toto, the execution of that judgment, is. not permitted to appeal from it. C. P. 567; Williams v. Duer, 14 L. 523; State v. Judge of the Parish Court, 4 Rob. 85: Campbell v. Orillon, 3 A. 115; Huhart v. Golden, 7 A. 233; Landry v. Connelly, 4 R. 127.

That the judgment in this case has been executed is shown by the fi. fa. and the writ of possession; by the return of the Sheriff thereon; by the' judgment of the Court declaring it satisfied. The question, then, is, was it executed by the appellants ; and, if not, have' they consented to. acquiesce in, or ratified the execution?

It is contended on behalf of the appellees, that the party who enforced' the execution of the judgment in this case, had authority to do so for and. in behalf of the creditors, not only because, as executor, he was the legal, representative of the heirs and creditors of the deceased, but because the. judgment itself expressly and nominally designated him as the party to whom the execution of the judgment was confided, and ordered him peremptorily to proceed forthwith to the final settlement of the estate. This view of the law seems to be concurred in by twenty-nine of the' appellants, who say that J. M. Caballero, as executor of the estate, was. bound in law, in order to protect the rights of the heirs and creditors, the. decree above referred to (meaning the decree appealed from by them being final, to proceed to the execution of said deoree.

The others, however, contend that the testamentary executor is an agent of the deceased, and, perhaps, of the heirs, but not of the credi tors; and that Mr. Caballero, therefore, was not the legal representative of the creditors, who are not bound by his acts, and who may oppose or repudiate them.

In the matter of the Succession of Hawkins, 2 A. 925, this Court held, that an administrator is the trustee of the creditors; that his first duty is, to them, and his imperative obligation to watch over their interest. This principle, we think, implies with equal force to executors; for the law-makes it their imperative duty to see to the payment of the debts of the succession, and vests them for that purpose, with the power to sell the.personal, and, if need be, the real property of the estate. C. C. Arts. 1661, 1663. It seems to us, therefore, that Mr. Caballero, as executor, was authorized, nay, bound, to proceed to the execution of the judgment, and that his acts, in this matter, are binding upon the creditors, so far, at least, as the Lizardis are concerned; and, without prejudice of the right, which, in common with all principles, they have to disapprove the acts of their agent, and hold him responsible for them, if those acts are-such as they pretend them to be, and they have not ratified them. But, conceding that Mr. Caballero was not the legal representative of the creditors and appellants, it cannot be contested that the lower Court-constituted and appointed him their agent, for the very purpose of enforcing and carrying out the execution of the judgment.

It is true they now contend that they were not parties to that judgment, but it clearly results from their proceedings in the record, and from their own admissions, in their1 printed brief, that they had filed oppositions to the amounts, both of the executor, Caballei’O, and the liquidator, Lizardi, in which they sought to render both directly liable to them.

This certainly made them parties to the whole proceedings, and privies-to the judgments that were rendered therein.

Besides, on the trial of Lizardi’s motion for a rehearing, which lasted four days, they appeared every day, by their counsel.

It is true, they say that they did not oppose the motion ; but we are, not at liberty to travel out of the record; and we are bound to conclude,, from what appears in it, that, if they did not oppose, they did not assent-to Mr. Lizardi’s prayer, or else the trial could not have lasted four days, and clearly could not have resulted in a judgment which dismissed the-motion; and, in the language of their opposition, maintained and affirmed the judgment of 11th January, 1861; and held that Manuel A. de Lizardi was before the Court as agent of Manuel J. de Lizardi, and bound to hand' over to the executor all the assets of the estate. It is obvious,. then, that the-appellants, who, by their own voluntary i acts, had made themselves-parties to the whole proceedings below, and were privies, both to the-decree of January 11th, 1861, and to the judgment discharging the rule for a new trial, knew, or were bound to know, that Mr. Caballero was authorized, nay, ordered, if not by the law, at least, by the judgment of the Court, to enforce the execution of the decree appealed from.

It was their duty, then, if dissatisfied with that decree, to have prevented the execution of it, either by assenting to the rehearing prayed for, or by appealing before, and not months after, that execution had taken place. They, however, thought differently, and suffered the judgment to be executed before taking any steps against it. Under these circumstances, we can but construe their silence and inaction into a formal acquiescence, on their part, and hold them bound by the acts of their agent.

But, admitting that Mr. Caballero was authorized neither by the law, nor by the decree of the Court, to execute the judgment, yet, there are circumstances, in this case, which show conclusively that the appellants have fully and completely ratified his acts, whether originally authorized or not.

In the petition which he presented on the 3d November, 1864, Mr. Caballero clearly and distinctly states, that he files his tableau, No. 2, showing a balance in his hands of $54,813 53, which he proposes to distribute among the creditors, and a document, lettered A A, showing the settlement made by him, with the liquidator, under the execution and order of the Court.

In his account, he explains, how that sum of $54,813 53 happened to be in his hands; and shows, clearly and distinctly, that it is the balance of a larger amount, which he had received, through the Sheriff, from the liquidator, M. J. deLizardi.

In the document A A, which is annexed to the account, and to which Mr. Caballero especially refers, it is distinctly and clearly made to appear that the note of Charles de Lassus, the several amounts mentioned in the account which, after deducting the amount of the privileged claims, constitute exclusively the balance of $54,813 53, proposed to be distributed among the creditors, were received by the executor, from Mr. lAzardi, in satisfaction of the judgment.

It is, therefore, evident, that, when they opposed, as they unquestionably did, in the opposition above referred to, the distribution of the $54,813 53, the appellants werq aware that the items included therein, resulted from the execution of the judgment; and this, in our opinion, can be regarded in no other light than as an assent to, and execution of, the judgment by the appellents.

It is true the consent of the appellants to the distribution of the funds received by the executor, in satisfaction of the judgment, is coupled with the reservation of their rights to have the judgment set aside, by an action of nullity, or appeal, or otherwise ; but this reservation can be of no avail to them.

The principle is well settled that a party is not permitted to do an act which he is at liberty to abstain from, and, by a mere reservation, screen himself from the legal consequences of that act.

Protestatio actui contraria non prodest.

It is also true, that this was but a partial execution; but, in the case of Williams v. Duer, above quoted, the Court held that the plaintiff, having acquiesced in a portion of the judgment, could not be permitted to appeal from it; and, in Cobb v. Parham, 4 A. 150, where the plaintiff had partially executed an award, rendered against him, the Court said : “It is inadmissible to say that the plaintiff could thus partially execute the award, and repudiate those portions of it which were not directly comprehended in the execution.

L’exécution partielle demontre, comme l’exécution totale, la volonte de confirmer l’acte vicieux; c’est une approbation tacite. Duranton, voL 13, No. 280.

It may not be improper here to remark, that two of the appellants, Messrs. A. & M. Heine, and the Louisiana Mutual Insurance Company, have filed no oppositions to the account of the executor. They are, consequently, bound by the judgment rendered on the 19th January, 1865, which, by homologating the account, so far as not opposed, necessarily approves and ratifies, quoad the creditors who have not opposed, the settlement of the executor with M. Lizardi.

Under the circumstances, and after a minute and careful examination of the facts, we are constrained to say that, by their own voluntary acts and deeds, the appellants have fully and completely ratified the execution of the judgment by the executor, and have, consequently parted with the right of appeal granted to them by law.

■It is therefore ordered, adjudged and decreed, that the appeals of the above named appellants be dismissed, and that they pay the costs of said appeals.

Howebd, J., recused.


source: Caselaw Access Project

author: Howebb, J.

license: Public Domain

text:
    J. Quertier & Co. v. The Succession of Charles Hille et al.
    We think it competent for parties to waive rights and forms, when not prohibited by law.
    A mortgage creditor, next in rank to one who has been paid, is entitled to a judgment against the purchaser, as a third possessor of the property, subject to his mortgage, to be paid out of the funds which he should have retained for that purpose, and which it was incompetent for the Sheriff in his official capacity to receive.
    APPEAL from the Second District Court of New Orleans,

      Whitáícer, J. Durant <6 Hornor, for plaintiffs-. G. Dvfour, for the succession. Guy Duplantier, curator ad hoc.
   Howebb, J.

Plaintiffs, as first mortgagees, caused certain property, belonging to defendants, to be sold under executory process, on 31st January, 1862, for the sum of $7,900, which was paid in full by the purchaser, Louis Gertris. After paying the claim of plaintiffs, with interest, costs and charges, there remained a surplus of the proceeds of $1,852 88, which the Sheriff reports as in his hands, subject to the further order of the Court.

Francis Reynolds, the second mortgage creditor, as shown by the eertificate of mortgages, and J. M. Demarest, administrator of the succession of Charles Hilie, one of the defendants, took á rule, on 11th January, 1864, upon Louis Gertris, the purchaser, and the representative of the succession of Joseph Allen, the other defendant in the executory proceedings, to show cause why Gertris, the purchaser, should not pay the said surplus, with eight per cent, interest, from February 1st, 1862, and costs, upon the grounds that, under the law, he was bound to retain said amount in his hands, and the Sheriff was without authority to receive it.

On the trial of this rule, no exception having been filed to the mode of proceeding, the District Court made it absolute, and condemned the purchaser, Gertris, to pay to F. Eeynolds the amount of Ms mortgage, $983 09, with eight per cent, on one-half thereof, from 29th November, 1858, and the other half from 29th March, 1859, up to the date of rendering the judgment, to be paid out of the surplus aforesaid, and the balance thereof, fixed at $423 56, to be paid, one-half to Demarest, administrator of the succession of Hille, and the other half to Mrs. Allen, natural tutrix of her minor children.

From this judgment Gertris appealed. The plaintiffs in rule, Eeynolds and Demarest, administrator, pray that the judgment be amended, by allowing interest until date of payment.

The appellant contends that the proceeding by rule is null and void ; such practice is unknown to our laws ; the mover was not a party to the original proceeding ; has never obtained a judgment upon his claim, and the purchaser has not admitted the existence of such a claim ; that the unpaid mortgage creditors must proceéd by the hypothecary action, as painted out by Art. 709 C. P.; and that the certificate of mortgages recites other mortgages and privileges, which may be urged against the balance of the price, until it is absorbed. He makes no complaint upon the allowance of interest. '

It is very certain that Art. 709 O. P. authorizes privilege and mortgage creditors to proceed by the hypothecary action against the purchaser of a property seized,' as a third possessor of mortgaged property, and it has been sanctioned by several decisions of this Court. See 16 L. 170; 3 A. 542; but we know of no law nor decision which declares the proceeding by rule to be a nullity. On the contrary, in the case of Tunnard v. Hill, 10 A. 247, where a direct action was brought against the defendant to obtain payment of the sum claimed out of the funds retained in his hands, as the surplus of the purchase price, the Court say : “Although it would have been more regular for the plaintiff to have proceeded by a rule, the defendant has waived all objections on that score by his mode of pleading.”

It does not appear, however, that this question was the subject of investigation, or essential to the decision in that case, and we do not feel ourselves called upon to say that the opinion thus expressed shall be considered as having overruled the former jurisprudence on this point of practice. We think it competent for parties to waive rights and forms when not prohibited by law; and we think that the appellant has waived his objections to form in this case, by not excepting, at the proper time, to the mode of proceeding. We observe a great tendency to conduct judicial proceedings in this summary manner, and we are disposed to cheek and discourage it, and hold litigants to an observance of the forms pre- - scribed by law; but we can effect it only in a legal manner, and when .regularly presented.

The record shows that the appellee, Reynolds, is the mortgage creditor next in rank to the plaintiffs in executory process, whose claim was paid in full, and by law he is entitled to a judgment against the pm'chaser, as a third possessor of the property subject to his mortgage, to be paid out of the funds which he should have retained for that purpose, and which it was incompetent for the Sheriff, in his official capacity to recover. See Pepper et al. v. Dunlap, 16 L. 175 ; Cummings v. Erwin, 15 A. 289; Merchants Bank v. Peters, 2 R. 214; Scott v. Featherston, 5 A. 313.

The appellant correctly contends that, so long as there are mortgages or privileges uncancelled, he cannot be compelled to pay any of the fund to the debtor in execution. By the judgment appealed from he is ordered to pay the sum of $423 56, as the balance in his hands, to the two co-defendants jointly. We find united, in the certificate, a privilege and mortgage upon the property in question, for an amount greater than the •.sum ordered to be paid to the debtor in execution. The judgment in favor ■■of J. M. Demarest, administrator of the succession, and Mrs. Marie .Louise Allen, natural tutrix of her minor children, defendants in exeeu•tion, must be reversed.

It is therefore ordered, adjudged and decreed, that so much of the judgment of the lower Court as is in favor of J. M. Demarest, administrator of the succession of Charles Hille, deceased, and Mrs. Marie Louise .Allen, natural tutrix of her minor children, be avoided and reversed; and that, upon their claims, there be judgment of nonsuit. It is further -ordered that the judgment in favor of Hrangois Reynold be amended, so as to allow him the interest awarded, up to the date of final payment; and that, as thus amended, the judgment be affirmed; the costs of appeal to be paid jointly by appellant and the succession of Hille and Mrs. Allen, .natural tutrix.


author: Lushest, J.

text:
    Mrs. Susan Broadwell v. Benjamin Rodrigues.
    Every one is at liberty to renounce what the law has established in his favor and interests but him- • self. But individuals cannot, by their conventions, derogate from the force of laws made for the-preservation of public order or good morals.
    The law of Louisiana allows individuals to derogate, by their conventions, from any advantages which the general law may have allowed them, under three modifications: 1. That the law granting the'* advantage be notone expressly or impliedly prohibitory of such renunciation; 2. That the renunciation do not affect the right of third persons; and 3. That the renunciation be not contrary to the* public good.
    The owner of property may lawfully contract in relation to it, and he is constrained by no law, as to the terms and conditions on which he may dispose of or affect it, except in cases for which the law itself has provided.
    A mortgage debtor may legally renounce the benefit of appraisement in the proceedings to sell on. executory process, and will not be afterwards allowed to attack the sale as invalid.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. G. Boselius and Alfred Philips, for plaintiff and appellant.

    — The only-question presented for decision in this case is, whether the clause inserted. in the act of mortgage, dispensing with the appraisement required by articles 673 and 745 of the Code of Practice, in case of a judicial sale, is. valid in law? .
    A proper solution of this question depends on the application of a. familiar principle of law, rather awkwardly expressed in the first para-• graph of the 11th article of the Civil Code, that “individuals cannot, by their conventions, derogate from the force of laws made for the preservation of public order or good morals. ” It is enunciated with much mora, clearness and precision in several passages of the Roman Laws, to some - of which it may be useful to refer: Privatorum conventio juri publico, non derogat. Leg. 15, $ 1, D c|£, I^qguSs Juris. To the same q|fect: Jus publicum pfivatorum paetis mutai'i non potest. Leg. 33, D. de Paetis;. and the 16th section of the same law expresses it in still stronger terms: “ Et generaliter, quoties pactum a juri communi remotum est, servari. hac non oportet; nec legari, nec jusjurandum de hac adactum, ne quis agat Marcellas, libro secundo digestarum, ecribit: Et si stipulatio sit. interposita de his, pro quisus pacisci non licet, servanda non est; sed omnino rescindenda.” And Leg. 7, D. de Paetis, we read: “ Ait preator,^ pacta conventa, quae ñeque dolo malo, ñeque adversus leges, plebiscita,,, senatus consulta, edicta principum, ñeque quo fras cui earum fiat, facta.. erunt, servabo.”
    It is manifest from theee ■autho'ri-ties, that by the terms, laws made for the preservation of public order, used in onr Code, is designated that class of laws, which in technical terminology is called public in contradistinction to private laws. And it is equally clear, that ah laws regulating" the enforcement of legal obligations through the agency of the judicial. department of the government, are public laws. What, indeed, is the. action brought in a court of justice, but the interposition of the public power of the State through the judiciary for the vindication of a private-right? When a Court renders a judgment, and directs the execution of that judgment, it exercises the sovereign power of the State; and all laws. ■applicable thereto are. necessarily public, and not merely private, governing the rights and obligations arising from the relations between man ■ and man. This distinction results from the very definition given in the 'Institute: Publicum jus est, quod statum rei Romanae spectat; privatum, •quod ad singularum utilitatem pertinet.” On principle, then, it would -seem too clear to admit of controversy, that the law requiring the property of the judgment debtor to be appraised before it can be sold by the Sheriff, in execution of a judgment, is a public law; and that an agreement to waive or dispense with the appraisement is absolutely void.
    But it is contended by the learned counsel for the defendant, that the necessity for appraisement in judicial sales is established exclusively for ■the benefit of the defendant; and that he may, therefore, validly renounce it, under the second paragraph of the same article of the Code, which provides that “in all cases in which it is not expressly or impliedly prohibited, individuals can renounce what the law has established in their ‘"^favor, when the renunciation does not affect the rights of others, and is •not contrary to the public good. This argument begs the question, by assuming that rule of law relative to appraisement creates a mere private right for the protection of the party who contracts the obligation. Wé have already shown that this is a mistaken view of the subject. All ike-property of the debtor is the common pledge of his creditors; and it is not only for the protection of the debtor that the law will not permit this -common pledge of all to be sacrificed at the suit of one, but also for the protection of the rights of the other creditors.
    But it is contended that the judgment debtor may, either expressly or even impliedly, waive the appraisement after his property has been seized; and a number of authorities are referred to to sustain their position. That this may be done, when the debtor is in solvent circumstances, cannot be denied; but it is evident that the sale in such case ceases to be ■a judicial sale, but becomes a consent sale, in which the Sheriff acts merely as auctioneer. In the same manner a party may dispense with the advertisements, notices, etc.; but in all these cases it will surely not be contended that the sale produces any of the legal effects of a judicial sale, in which the Sheriff derives his authority from the law alone. Would such a consent sale, for instance, produce the effect of raising subsequent mortgages? Hennen’s Dig., p. 742, No. 9 et seq., new ed.
    After the institution of a suit, the defendant may waive citation; but will any one pretend that the waiver of citation in the contract out of which the obligation which is sought to be enforced has arisen, would be valid? In further illustration of this doctrine we may refer to prescription which cannot be renounced by anticipation; but nothing prevents the party from doing so after it has been acquired. With reference to the renunciation of the plea of prescription, the learned counsel for the appellee say the counsel of the appellant affected to find an analogy between the waiver of prescription in the body of a promissory note. .But there is no analogy between the two cases. The debtor who, at the moment of contracting Ms debt, should waive by anticipation the plea of prescription, would contravene, by such an agreement, the dispositions of a law made in the interest of public order; for “interest reipublicae ut ■ sit finis litium.” But tMs is surely no reason why he should be permitted to renounce the prescription after the laxóse of time has put an end to all litigation on the subject matter. It is obvious that the reason for the-distinction rests on very different grounds: when the contract is formed neither the axopraisement nor the prescrixotion can be validly renounced, because the laws applicable to them are public laws, and concern public-order; but, after the xoroperty has been seized, the defendant, when sui juris and solvent, may dispense with the apxoraisement and thereby convert a 'purely judicial sale into a consent one; and so with regard to prescription, for then in each case it has become a mere personal right entirely unconnected with public order. Much stress is laid on the exxn-ession wMch fell from the Court, in the case of the Union Bank v. Bradford, 2 A. 416: “the stipulation in the act of mortgage was one for the benefit • of plaintiffs, which it was discretionary with the Bank to have enforced, or to renounce. It was virtually waived by claiming a seizure and sale according to law.” It will be observed that the question of the validity of the renunciation of the ax>praisement was not presented for decision at all; the only objection made was that the sale had not been made in conformity with the order of the Court; it is, therefore, nothing but an obiter dictum, which cannot be invoked as authority. All the other cases refer to waivers after seizure.

      Buchanan & Gilmore, for defendant.

    — The appellant, Mrs. Broadwell, having granted a mortgage, by authentic act, upon certain lots of ground, to secure the payment of her promissory note, in favor of any holder of said note; and the note, at maturity, having been protested for non-X>ayment, the holder, B. Rodrigues, applied to the Sixth District Court of New Orleans for executory process.
    The act of motgage contained a clause of waiver of appraisement of the property, in the event of suit being instituted on said note, and of seizure and sale taking place under a judicial order, the mortgagor consenting that-the Sheriff should sell the property for cash, without appraisement, for-what it would bring.
    The prayer for a seizure and sale, and the order for the seizure and sale by the Judge of the District Court, were in conformity to this stipulation of the act of sale. But our proceedings were stayed by a writ of' injunction, granted ux>on the petition of Mrs. Broadwell, which sets-, forth, as ground for injunction, that the clause of waiver of appraisement, in the mortgage, is null and void, and of no force and effect; and that, notwithstanding said clause, petitioner is entitled to have an appraisement of the property previous to its sale by the Sheriff.
    A rule was taken to dissolve the injunction on two grounds :
    1. The petition sets forth no good and sufficient cause for the injunction..

      2. That the security in the injunction bond does not possess the legal qualifications.
    The second ground of the rule being waived on trial, the first ground alone was examined by the District Judge, in his reasons for judgment; and, this ground being sustained, the injunction was dissolved, with damages; and plaintiff has appealed.
    I. The question of the absolute nullity of any agreement by a mortgagor to dispense with appraisement, in case of a forced sale under the mortgage, is here presented to your Honors, by appellant, in the most direct form. It is not pretended that the mortgagor was not a person capable of contracting; it is not alleged that there was any want of consent, fraud, duress or error; it is not stated in the petition (although we have heard something- of the hind in the oral argument of Mrs. Broad-well’s counsel upon the rule) that there was anything premature in the consent to waive appraisement, and that it might possibly have been waived at a later period. No; the proposition submitted by the learned counsel’s petition is the broad one that property cannot be sold by the Sheriff without a previous appraisement; and that any agreement to the contrary is radically null, and is not binding upon the party who* has made such agreement.
    The law is not thus understood by us, nor has it ever been so understood by this Court.
    The Code Napoleon, Art. 6, says: “On ne pent déroger, par des.conventions particulieres, aux lois qui intéressent l’ordre public et les bonnes moaurs.” One of the commentators, Marcadé, vol. 1, p. 67, observes hereupon: “Cet article, en nous disant qu’on ne peut par convention déroger aux lois dont il parle, nous indique assez qu’on pourra par «so moyen déroger aux autres.” And the jurisconsults, who compiled the Louisiana Code, while they adopted verbatim the Article 6 of the Frenieh Code, in the Article 11 of our Code, have added to that article a sernaS paragraph, which is a legislative recognition of Marcadó’s doctrine,, m.ü has removed much of the uncertainty of the French article. The seeoasd paragraph of Article 11, of the Louisiana Code, is as follows :
    “But, in all cases in which it is not expressly or impliedly prohibite-Sj individuals can renounce what the law has established in their fa-ve®, when the renunciation does not affect the rights of others, and is-. 2s®£ contrary to the public good.”
    The law of Louisiana, therefore, allows individuals to derogate* by their conventions, from any advantages which the general law may has-® allowed them, under three modifications : 1. That the law granting; She advantage be not one expressly or impliedly prohibitory of such renunciation. 2. That the renunciation do not affect the rights of third persons; and, 3. That the renunciation be not contrary to the public good.
    The Code of'Practice, as amended by the Act of 1828, declares that, fes Sheriff, before proceeding to a sale in execution of a judgment, shall gsre notice to the parties to appoint appraisers, and, in their defaults, shall appoint appraisers himself; and that, at the first crying of the property (for -cash), he shall make no adjudication, unless the property fetch two-thirds of the appraisement. This appraisement is, then, something established by law in favor of the party seized, in this sense, that it may prevent a sacrifice of his property for a cash price greatly below its value. But are parties contracting prohibited from renouncing the benefit of this law ? There is certainly in the Code no express prohibition of a waiver of appraisement. Neither do we find anything in the context of the law, or in any laws, on the subject-matter, from which such a prohibition is to be implied. The renunciation of the right of appraisement, in this instance, does not affect any rights of third persons, at least no such thing is alleged nor approved; and it is not in any manner contrary to the public good.
    In several cases, the Supreme Court of Louisiana have expressed opinions favorable to the general right of the parties to waive appraise'znen.tand, whenever they have set aside sales for want of appraisement, there has either been no consent to waive appraisement, or that consent has been given with a fraudulent intention, and has had an injurious effect upon the rights of others.
    Such was the case of Seligsberg’s Succession, 1 An. 310. The judgment debtor, Fleming, was in failing circumstances, and the waiver of appraisement was collusively made to defraud creditors.
    Of the same kind was the case of Union Bank v. Bradford, 2 An. ál6. The bank held a mortgage against one Mapes, containing the identical clause found in our mortgage, authorizing a sale in execution, for cash, without appraisement. But the bank did not choose to avail itself of this clause; and, in the petition which it presented for executory process, the prayer was that the property mortgaged be seized and sold, as the law directs. The Judge made his order on the petition in the same form of words. But, the Clerk of the Court having issued the writ commanding the Sheriff to sell for cash, without appraisement, the property was collusively adjudicated to Bradford for thirteen dollars. The mortgagee complained of this, not the mortgagor; and the Supreme Court held the following language in their decision, of most important bearing upon the question before us: “It is manifest that this sale was not made in conformity to the order of the Judge. The stipulation in the act of mortgage was one made for the benefit of plaintiffs, which it was discretionary with the bank to have enforced, or to renounce. It was vitually waived by claiming a seizure and sale, according to law,” etc. Your Honors will observe, that the right of a party to waive appraisement of hig property seized, is expressly decided by the Supreme Court in the case cited.
    And there was a case decided by the present bench, at the last May Term, (1865), Desplates v. Si. Martinet al, in which the'same doctrine has been maintianed by your Honors. Plaintiff instituted the action of nullity of a Sheriff’s sale of his property, on the ground that it had been sold without appraisement. The Court said : “It appears, from the testimony, that there was no appraisement of the property; but it also appears that defendant was present, and, when called upon by the Sheriff to appoint an appraiser, declined to do so ; on the ground that the landed property was mortgaged for more than two-thirds of its value, and an appraisement was unnecessary. He also became purchaser of a horse, sold at the same time. He thus waived the appraisement and ratified the sale, and cannot now be heard to complain.”
    It has frequently been decided that the defendant in execution might waive the formalities required for the sale of his property, when such sale did not inflict injury oh third persons. Thus, in LaBlano v. Dubroca, 6 An. 362, a waiver of the three days’ notice of seizure, previous to advertisement, was held to be a waiver of a right, personal to defendant, and legal. The same point was decided in McDonogh v. Garland, 7 An. 143.
    And in Mullenv. Harding, 12 An. 271, a judgment debtor whose property (land) was seized on the '30th May 1848, waived notice, appraisement, and advertisement, and the property was sold by the Sheriff on the 3d June, 1848. This sale being attacked by a creditor holding a judicial mortgage, the Supreme Court said: “A judgment debtor is certainly at liberty to waive the formalities of the law, so far as they exclusively affect his personal interests, ” etc.
    H. We have already seen that the French Code is not as explicit as our own, in relation to the right of parties to waive the benefit of the laws made in their favor, and the limits within which that right^may be exercised. The French Code (Art. 6,) contents itself with declaring that no person is allowed to derogate, by particular agreements, from laws which interest public order and good morals. These expressions have received the interpretation of French jurists.
    Merlin, Répertoire de Jurisprudence, Yerbo Renonciation, No. 1, says : “Engénéral, chacun peut renoncer aux facultés, aux privileges, qui ltd sont déférés porir son avantage personnel; c’est la conséquenee de la máxime consaerée par la loi D. de regulis juris — Invito beneficium non datur. ” “ C’est sur le méme principe que sont fondées les lois qui décident et les arréts qui ont jugé, que les nullités d’aetes et de procédures, sont couvertes par 1’acquiescement des parties intéressées á les faire valdir. ” And Zacharise, vol. 1, page 64, lays down as a rule in the interpretation of this article: “Chacun est libre de renoncer et par eonséquent de déroger aux dispositions légales qui ne sont introduces qu’en sa faveur et qui n’intéressent que lui seul. Regula est juris antiqui, omnes licentiam habere his quae pro se introducta sint, renuntiare.”
    On this subject, Duranton is word for word, almost, with Zacharise.See Duranton, vol. 1 page 25, No. 110.
    Toullier, vol. 1, Nos. 101 to 111, examines the question of the right of parties to waive or dispense with the law more at length than the two preceding. This eminent jurist lays it down as a general rule, that an individual is always at liberty to waive the benefits of laws made for his advantage. The cases where he cannot do so, are exceptions to the general rule, and are confined within strict limits. Those exceptions he classes under three heads : 1st, where the law itself has prohibited any deviation from its dispositions; 2d, where it may be inferred from the dispositions or the motives of the law, that it is absolutely prohibitory; 3d, where the law has for its foundation some public or political cause, or the interest of a third person. Vol. 1, No. 108. The Court will observe how exactly this classification of Toullier tallies with the provisions of the second paragraph of the 11th article of the Louisiana Code, which has been added by the framers of the Code to the 6th article of the French Code, incorporated verbatim in the first paragraph of our article. The coincidence is such, that we may conclude the second paragraph of our article was borrowed from Toullier. As to Toullier’s general rule, we find it in the 1895th article of the Louisiana Code. “Agreements legally entered into, have the effect of laws on those who have made them. ”
    IV. In the argument in the Court below, the learned counsel of the appellant affected to find an analogy between the waiver of the right of appraisement in this mortgage and the waiver of the prescription in the body of a promissory note. But there is no analogy between the two cases. The debtor, who, at the moment of contracting his debt, should waive by anticipation the plea of prescription, would contravene, by such an agreement, the dispositions of a law made in the interest of public order; for interest reipublicoe ut sit finis litium. Besides, he would be contravening a prohibitory law: Civil Code, article 3423. He would therefore be, doubly, within the exceptions to the right of the citizen to dispense with laws made in his favor, indicated by Toullier, and prescribed by our own Code.
   Lushest, J.

The only point raised in the present injunction suit, is, whether the clause inserted in the act of mortgage, dispensing with the appraisement required by Art. 673 and 745 of the Code of Practice, in a case of a judgment sale, is valid in law.

The plaintiff in injunctidn contends that all laws regulating the enforcement of legal obligations through the agency of the judicial department of the government, are public laws; and that an action brought in a court of justice is the interposition of the public power of the State, through the judiciary, for the vindication of a private right; that when a Court renders a judgment, and directs the execution of that judgment, it exercises the sovereign power of the State, and all laws applicable thereto are necessarily public, and not merely private, governing the rights and obligations arising from the relations between man and man; and reference is made, in support of this doctrine, to the institute “Publicum jus est, quod statum rei Romanse spectat; privatum, quod ad singulorum utilitatem pertinet.” And, as a corollary to this, it is urged that the law requiring the property of a judgment debtor to be appraised before it can be sold by the Sheriff in execution of a judgment, is a public law; and that an agreement to waive or dispense with the appraisement, is absolutely void.

On the other hand it is contended, that the necessity for appraisement in judicial sales is established exclusively for the benefit of the defendant, and that he may, therefore, validly renounce it, under the second paragraph of Art. 11 of our Civil Code.

On the correctness of one or the other of these conflicting theories, rests the whole question in controversy.

From the general tenor of our own jurisprudence, we should hardly have deemed this question an open one, for it has been uniformly held, that the legal formalities attending final process are established by law in favor of debtors in execution; which they can renounce, without in any manner running counter to the proviso in the second paragraph of Art. 11 C. C. The cases to which our attention has been called, view the question in all its phases, and seem to consider the progressive steps in the execution of judgment as mere formalities; less a matter of public policy than of private concern, and hence they deem the renunciation or waiver of those rights as permissible under § 2 of Art. 11 of the Civil Code.

Our attention is directed to some of these adjudged cases.

In Mullen v. Martin, 12 A. 271, a judgment debtor whose property was seized on the 30th of May, 1848, waived notice, appraisement and advertisement, and the property was sold by the Sheriff on the 3d June, 1848. This sale being attacked by a creditor holding a judicial mortgage, it was held by the Court: “a judgment debtor is certainly at liberty to waive the formalities of law so far as they affect his personal interests.”

In Leblanc v. Dubroca, 6 A. 362, and in McDonald v. Garland, 7 A. 143, a waiver of three days’ notice of seizure, previous to advertisement, was held to be the waiver of a right personal to the defendant, and regular.

In Desplattes v. St. Martin, decided in May last, in this Court, it is said: It appears from the testimony, that there was no appraisement of the property; but it also appears that the defendant was present, and when called upon by the Sheriff to appoint an appraiser, declined to do so, on the ground that the landed property was mortgaged for more than two-thirds of its value, and an appraisement was unnecessary. He thus waived the appraisement and ratified the sale, and cannot now be heard to complain.

These and some other cases not cited, referred to waivers or renunciations made by debtors, subsequent to the seizure of their property, and not to stipulations in the original contracts. In one case, however, The Union Bank v. Bradford, 2 A. 416, an identical clause with that which is found in the act of mortgage on which the order of seizure and sale was issued in this case, was inserted in the mortgage given to the bank.

The facts of the Bradford case were these :

The Bank held a mortgage against one Mapes, containing a clause •authorizing a sale in execution for cash without appraisement; but the bank did not choose to avail itself of this clause, and, in the petition which it presented for executory process, the prayer was that the property mortgaged, be seized and sold as Che law directs. The Judge made his order on the petition in the same form of words, but the Clerk of the Court having issued the writ, commanding the Sheriff to sell for cash, without •appraisement, the property was collusively adjudicated to Bradford, for thirteen dollars. The mortgagee complained of this, not the mortgagor, and the Supreme Court held the following language in its decision :

“It is manifest that this sale was not made in conformity to the order •of the Judge. The stipulation in the act of mortgage was one made for •the benefit of the plaintiffs, which it was discretionary with the bank to have enforced or renounce. It was virtually waived by claiming a seizure •and sale according- to law. ”

It is true that no question in that case, as to the validity of the stipulation in the act of mortgage, respecting the waiver of appraisement, was directly before the Court; but the opinion of the Court is, nevertheless, unequivocally expressed, that the renunciation by the debtor was a valid one.

Whenever this Court has set aside sales for want of appraisement, there has either been no consent to waive appraisement, or that consent has been given with a fraudulent intention, and has had an injurious effect on the rights of others.

Such was the case in Selligsberg’s Succession, 1 A. 340. The judgment debtor, Fleming, was in failing circumstances, and the waiver of appraisement was collusively made to defraud creditors.

The law of France, in its practical application, differs but little from the law of Louisiana, and both rest on the maxim of the Boman law, which lays it down as a rule that every one is at liberty to renounce what the law has established in his favor and interests but himself.

“Est regula juris antiqui omnes licentiam habere his quae pro se indicta sunt renunciare. ” L. 29, C. de Bactis.

But individuals cannot, by their conventions, derogate from the force of laws made for the preservation of public order or good morals. I. C. dePactic 2; 3L. 45, 1$ de B. T. L. 38, de Pactis, 2, 14.

Marcadé, commenting on the last rule cited, observes : “Cet article en nous disant qu’on ne peut par convention déroger aux lois dont il parle, nous indigne assez qu’on pourra, par a moyen, déroger aux autres.” Yol. 1, p. 671. And the jurisconsults who compiled our Code, which they adopted verbatim, the Article 6 of the French Code, in the Article 11 of •our own Code, have added to that Article a second paragraph, which is a legislative recognition of Marcadé’s doctrine, and has removed much of the uncertainty of the French Article. (See also the doctrine of Toullier, hereinafter referred to.)

The second paragraph of Article 11 of our Code, is as follows:

“But, in all cases in which it is not expressly or impliedly prohibited,, individuals can renounce what the law has established in their favor,, when the renunciation does not affect the right of others, and is not contrary to the public good.”

It is, then, evident, that the law of Louisiana allows individuals to-derogate, by their conventions, from any advantages which the general law may have allowed them, under three modifications: 1. That the law granting the advantage be not one expressly or impliedly prohibitory of such renunciation. 2. That the renunciation do not affect the right of third persons; and, 3. That the renunciation be not contrary to the public good.

Art. 6 of the French Code, less comprehensive than our Art. 11, has-also received its interpretation. Merlin, Bépertoire de Jurisprudence, verbo Benonciation, No. 1, says : “En général, chacun peut renoneer aux facultés, aux droits, aux privileges qui lui sont déférés pour son avantage personnel; c’est la conséquenee de la máxime consaerée par la loi 68 D. de regulis juris: Invito beneficium non datur. C’est sur le méme principe que sont fondées les lois qui décident et les arréts qui ont jugé queles nullités d’actes et de procédures sont eouvertes par l’acquiescement des parties intéressées á les faire valoir.”

And Zacharúe, vol. 1, p 6á, and Duranton, vol. 1, p 25, No. 110, lay. down as a general rule to interpret the maxim enunciated in L. 29, de Bactis (Art. 6, French Code,) “Chacun est libre de renoneer, et par. conséquent, de déroger aux dispositions légales qui ne sont introduces qu’en sa faveur, et qui n’intéressent que lui seul.”

And the right of waiving or dispensing with the law, is examined by Toullier, vol. l,No. 101 to 111. He shys that, as a general rule, “spindividual is always at liberty to waive the benefits of laws made for his advantage,” and the cases where he cannot do so, are exceptions to the general rule, and are confined within strict limits. Those exceptions he classes under three heads :

.1. Where the law itself has prohibited any deviation from its, dispositions.

2. Wteare it may be inferred from the dispositions or the motives of the law that ft is absolutely prohibitory; and,

3. Where the law has for its foundation, some public or political cause,, or the interest of a third person. Yol. 1, No. 108.

Aided by the light which the French jurists have afforded us in solviffg. this mooted question, we are now to determine whether the clause referred to in the plaintiff’s mortgage is a nullity.

We are not prepared to subscribe unrestrictively to the plaintiff’s theory,, that formalities prescribed by law, in executing final process, are so-essentially obligatory on the parties to a suit, that they may not be dispensed with. There is certainly in the Code no express prohibition against a party’s waiving an appraisement of his property, either before or after the seizure of it. Nor is there anything in the context of the-law, or in. any law on the subject matter, from which such a prohibition Is to be implied.

Dunod expresses very clearly the reason why such a renunciation (if a nullity at all) falls under that class denominated relative. He says : “Lanullité relative est eell'e qui n’interesse que certaines personnes-”

“ Quoique la fin de la loi soit toujours l’intérét public et de la soeiété, la vue de cet intérét est souvent éloignée, et la loi considere alors en premier lieu, dans sa prohibition et dans les nullités qu’elle prononce, l’intérét des particuliers: primaria, special utiUtatem privatam, et secundaria, publieam. Ce sont les particuliers qui profitent de sa disposition, et sa prohibition, en ce cas, produit une nullité qu’on appelle respective, parceque cette nullité n’est censée intéresser que celui en faveur de qui elle est prononcée; e’est pourquoi il peut seul s’en prévaloir et la proposer; et si d’autres le faisaient, on leur opposeraient avec raison qu’ils se fondent sur le droit d’autrui.”

And Merlin, Bépertoire de Jurisprudence, verbo Nullité, g 3, remarks: “ A l’égard des nullités respectives, il est constant qu’elles sont eouvertes par le consentement que donnent a l’exécution des actes qui les renferment, les parties intéressées k fame valoír ces nullités et a détruire ces actes. De la cette máxime si connue, que la nullité d’un ajournement judiciaire est effacée par la comparution de la partie assignée.”

But, if such a stipulation were really an absolute nullity, could that nullity be urged by one who has sanctioned it by his consent ?

On this point, no definite rule can be laid down.

The great object, in such eases, is to ascertain on which side the public interest inclines, and thlt determined by the circumstances presented in a particular case, it should form the basis of judicial action in regard to it. When a party has recognized the validity of an act, the nullity of that act should not be too readily declared; but on the other hand, acts palpably null, should not be too indulgently tolerated. Between criminal and civil laws, there is a marked difference; the former are strictly public laws, and must be so deemed by the cormts of justice which administer them, and by individuals who come under their control.

But civil laws, which involve mere private rights, may be often lawfully relaxed and waived by covenants in Order that the varied transactions, which in the course of human events, are constantly occurring, and with which no code of laws can possibly keep pace, may be facilitated and the more readily consummated.

This we apprehend to be the general rule, as relates to the renunciation of private rights. The exceptional cases are those which trench on public order ; and, within those exceptional cases, is not embraced, as we conceive, the stipulation in the mortgage granted by the plaintiff in injunction.

There are two great principles, which the law in its wisdom, recognizes:

1. The right of competent parties to contract freely.

2. The free, lawful disposal by the owner of his property.

This absolute dominion of the owner over his property, is well expressed by the terms of the Roman law. “Tua quisqua rei moderator et arbiter.” He may use or abuse it as he lists. “Jus utendi et abutendi.”

The owner of property may lawfully contract in relation to it, and he is constrained by no law, as to the terms and conditions on which he may dispose of, or affect it, except in cases for which the law itself has provided.

This is not controverted, but it is contended that when the law has prescribed the mode for the forced alienation of property under judicial process, that is a public law and cannot be waived in advance.

And might not the same argument be adduced in regard to thq waiver of domicile, so as to vest a particular court of a district, other than that of a defendant, with jurisdiction over some particular case ? This, it might be supposed, was not deemed an illegal stipulation in a contract, previous to the passage of the act of the Legislature of this State, passed in 1861, (p. 137,) amending Art. 162 of the Code of Practice, and which act provides “that it shall not be permitted to elect any other domicile or residence for purpose of being sued,” which certainly, by strong implication, would seem to have given a legislative interpretation to Art. 162, so as to convey the idea that, previous to the passage of the act of 1861, domicile might have been waived by stipulations in contracts to confer jurisdiction on some other Court. See Toullier, vol. 1., p. 95 $ 103. Without attaching too much importance to the maxim, “ expressio unins est ex'clusio alterius,” might it not apply to other rights conferred on suitors, and which are not expressly prohibited, as now is the waiver of domicile ?

Tested by the rule laid down by the eminent jurist Solon, in his Théorie de la nullité, vol. 1., No. 28, the question as to the class of nullities in which such a renunciation would fall, would not be difficult of solution, and we deem the rule a sound one. “ Dans le doute si une nullité est d’ordre public, ou de droit privé, le silence du législateur doit étre interpreté en ce sens, que la nullité n’a été portée que dans un intérét privé; on concjoit, en effet, que si elle était d’ordre public, le législateur l’aurait exprimé, ou du moins, l’aurait donné a connaitre; et quo le juge ne pourrait pas s’y méprendre. Dans le doute, on doit toujours se prononcer pour la validité de l’acte. Et heec quidem interpretatio per quam actus sustenitur dicitur regina interpretationem.

We conclude, then, that the plaintiff’s renunciation of the benefit of appraisement, in her act of mortgage, is legally valid, and that she cannot be permitted to attack it.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Corn’t be affirmed; the costs of the appeal to Lo paid by the appellant.

Hownnn, J., recused.


author: Howell, J.

text:
    Fellows & Mills v. Bank of New Orleans.
    The judgment of the lower Court will be amended, when the record shows that it is not according to the evidence.
    APPEAL from the Third District Court of New Orleans,

      FéUowes, J. J. Ad. Rozier, for plaintiffs. E. W. Huntington, for defendant and appellant.
   Howell, J.

The plaintiffs brought suit on a detailed bill for professional services rendered the defendant in different matters; and, on-the trial below, the District Judge, considering that the evidence sustained only one item, rendered judgment for $100, being the amount of said item; from which the defendant appealed, and the plaintiffs have joined in the appeal, praying that the judgment be so amended as to-allow the whole amount claimed by them.

The account sued on is composed of four distinct items of $100, $100; $100, and $300, respectively; and we think the testimony of the President of the bank and two members of the bar fully sustains three of them, to wit: the first, second, and fourth, amounting to $800. There is nothing to establish the third item. The judgment should be amended.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be amended, and that plaintiffs recover of the defendant the sum of eight hundred dollars, instead of four hundred, as allowed below, with legal interest from judicial demand, and costs in both courts.


author: Hvman, C. J.

text:
    C. H. de Brueys, Administrator, v. W. A. Freret.
    When an order of seizure and salo was obtained by an administrator, without evidence that he is the administrator, Held: That the omission to produce such evidence is fatal, and the order will, be rescinded.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Field <& Shackleford and A. L. Tissoi, for plaintiff. G. Bufour, for defendant and appellant.
   Hvman, C. J.

This is an appeal from an order of seizure and sale. The order was obtained by plaintiff as the administrator of the estate of the late Marie Eramjoise Adelide de Brueys, without evidence that he was the administrator.

The omission to produce such evidence is fatal. See case Joseph T. Landry, administrator, vs. C. S. Landry, executor, 12 An. 167.

It is therefore ordered and decreed that the fiat of the District Judge granting the order of seizure and sale in this case be set aside and avoided,, the ease dismissed and the plaintiff to pay costs of both Courts.

Howell, J., recused.


author: Labatjve, J.

text:
    Daniel Jex v. Hugh M. Keary.
    Individuals cannofc, by their convention, derogate from the force of laws made for the preservation of public order or good morals.
    But, in all cases in which it is not expressly and impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and it is not contrary to the public good. So, it does not forbid a defendant from submitting to the jurisdiction of a Court when it, really, possesses none. But he cannot elect another domicile for the purpose of being sued.
    APPEAL from the Second District Court of New Orleans,

      Bermudez, J. C. Roselius, for defendant.

      A. Jf. Ogden and A. Pitot, for plaintiff and appellant.

    — The defendant, duly cited, appeared and excepted to the jurisdiction of the Court, as follows: “On the ground that his domicile is in the parish of Avoyelles, and that he is not amenable to the jurisdiction of this Court; and he denies that the clause in the act of mortgage relied on by the plaintiff to sustain the jurisdiction of this Court has any legal and binding effect.”
    This exception was sustained by the Court.
    It seems, indeed, that no argument should be needed in a case so plain, of such common-occurrence, in presence of defendant’s express renunciation to the very ground of defence now set up by him, and in a ease based on a contract entered into before the passage of the law prohibiting the renunciation, by the debtor, to the law of the domicile. But the Judge of the inferior Court having dismissed plaintiff’s action, it becomes his duty to point out the errors contained in the judgment which he seeks to reverse.
    It is to be remarked that, on the day of trial, the counsel for defendant did not appear, and no written argument or memorandum of authorities was filed on his part, so that it is impossible for plaintiff’s counsel to answer them, and he is placed under the necessity of arguing against the written opinion of the Judge, as the only document containing the grounds upon which the exception has been maintained.
    The Court states the case exactly as it stands:
    “Defendants plead to the. jurisdiction of the Court, urging that his domicile is in the parish of Avoyelles, but he is met by the plaintiff with a waiver of such privilege in an authentic form.”
    The question to be decided upon such a - statement is put by the Court in the following words: “Could such waiver have been consented at a time when no right of action against defendant had yet sprung into existence ? The Court thinks not. ”
    In support of its opinion, the Court makes the following argument:
    “The legal enactment requiring that a defendant be sued at the place of his domicile, or usual residence, C. P. 89, 162, has, for object, the preservation of public order and good morals; for, otherwise, this waiver could, in cases like that at bar, unremittingly be exacted from an embarrassed debtor, who would thus be made to deliver himself, feet and hands bound, to an unmerciful creditor. For reasons alike, etc., etc.
    “Indeed, the law considers that the right to be sued at one’s domicile is abandoned only when cited before a Court whose jurisdiction does not extend to his residence, a defendant fails to decline to the jurisdiction of the tribunal, and pleads to the merits.” C. P. 93.
    ■ The substance of this argument is :
    1. That the voluntary waiver of the jurisdiction of the debtor’s domicile, before a suit is instituted, is contrary to public order and good morals.
    2. That the failure to decline the. jurisdiction, and the pleading to the merits, after the suit is instited, is not contrary to public order and good morals, and constitute the only case where the right to decline the jurisdiction can be abandoned.
    We will have occasion to show, in the course of argument, that, instead of one case, there are numerous cases where the jurisdiction may be declined, or even changed by law, without injury to public order or good morals.
    Before eoming to the merits of the decision, it may be observed, en passant, that the Oourt’s tender mercies towards the poor debtors of this community have rather gone too far in stating that, “in cases like that a¡t bar, such waiver would unremittingly be exacted from embarrassed debtors who would thus be made to deliver themselves, feet and hands bound, to an unmerciful creditor.” In the case at bar, the plaintiff is a third possessor of defendant’s note, was not a party to the act of mortgage by which the defendant procured the money which he needed at the time, and, far from being an unmerciful creditor, he has waited fourteen months before suing the defendant. The reason relied upon in support of the judgment is more personal than legally true in principle, and, therefore, it can neither have a bearing in this case, nor constitute a solid basis to the opinion emitted by the Court that a waiver of jurisdiction is contrary to public order or good morals.
    But, since the judgment exists, and is, no doubt, rendered in good faith, we must treat it with the respect it is entitled to. Let us, then, examine the general principles of law on matters of public order and good morals, and see how they arc understood and explained by the jurisprudence of the country.
    The law is obligatory upon all inhabitants of the State. C. C. Art. 9.
    The law orders, it permits, it forbids, C. C. Art. 2.
    No one can allege ignorance of the law. C. C. Art. 7.
    From the rigid obligation imposed upon the inhabitants knowing the law and obeying its precepts, flows, as a natural consequence, the right .to do what the law does not forbid. To what intent ? That is the question.
    For fear of abuse of that natural right to the prejudice of others, the law has prudently restricted it; and, to that effect, has established the following rule, containing both the principle forbidding a derogation of individuals from tlie force of certain laws, and the exception, when they may renounce the privilege established in their preference:
    O. O. Art. 11. “Individuals cannot, by their convention, derogate from the force of laws made for the preservation of public order or good morals.
    “But, in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not effect the rights of others, and it is not contrary to the public good.”
    To an inattentive reader it may certainly appear that the second paragraph of the article just quoted is simply an exception to the principles established by the first paragraph ; but, upon a close examination, it will be seen that there is a very material difference between the terms employed to indicate what the law forbids, and those employed to indicate what the law permits.
    The Article says, that no individual can derogate from laws made for the preservation of public order and good morals, but that he may renounce them, when his renunciation is not contrary to the public good.
    The difference in the above terms fixes exactly the limit within which a person may renounce a right established in his favor by a law passed for the preservation of public order. He cannot disturb public order, nor oblige others to derogate from it, for his own convenience; but, if his own renunciation to that right which he is obliged to respect in others, is an act entirely personal in its results, on a mere matter of form, for example; if it has in it nothing by which any one may be made to suffer, nothing which can be considered as a precedent to exact from others their renunciation to the same right, nothing, in a word, contrary to the public good, he is welcome, as the law authorizes him to do, to renounce what it has established in his favor.
    A law of public order may, as will be shown hereafter, establish certain rights, the abandonment of which, on the part of citizens, would violate certain sacred principles, sanctioned by universal legislation, independent of all force of action, or of all civil jurisdiction; and those rights must be maintained because they really constitute the public good. But there are laws of a different character, which may be called laws of public order, because they interest a whole community; laws, for example, regulating the exercise^of individual rights between man and man, and which, to secure a safe administration of justice, have established a territorial, circumscription, or, in other words, a civil jurisdiction, according to which, an inhabitant of the country is not bound to answer a suit instituted against him out of his domicile, a derogation from which laws cannot be interpreted as a breach of good morals or of public good. They constitute a privilege in favor of the individual; but if, notwithstanding that privilege, he consents, or wishes, perhaps, to have his case tried before another Judge, how can the public good be put in jeopardy by a mere change of tribunal. When the forms of justice are observed, and the law is applied to the case according to its merits, it matters not in what place the judgment is rendered, provided it be with the consent of the party interested. Such a renunciation, in his part, cannot reach nor injure the principles of public order, which the law has in view, in stating that no one shall be permitted to violate them.
    Although, in the cases decided by our Courts in the matter, the Judges have not insisted on that difference in terms of the law which we have mentioned above; yet, it may be seen that they have clearly perceived and appreciated the cases where the public good may be injured by the conventions of parties, either in examining those which are submitted to them, or in supposing some analogous ones to elucidate the matter; and their appreciation of a renunciation in such cases proves that there are occasions where a derogation from the law cannot be sanctioned, for reasons which could not be invoked in a case of a mere renunciation to jurisdiction.
    When a derogation from a law of public order is contrary to the public good, a question of moral sense, or of good morals, to use the words of the law, is always at stake; whilst, in a derogation of a law of public order, which cannot interfere with the principles of good morals or the lights of third parties, the public good cannot suffer.
    Such is our interpretation of the law; let us see whether it accords with our jurisprudence.
    In the ease of Vaughan v. Christian et als, 3 An. 329, the Court commenting upon Art. 11 of the Civil Code, above quoted, says :
    “The distinction which exists in relation to absolute nullities is broad and easily defined. If the contract is tainted with a nullity resting on motives of public order, or having its origin in the respect due to good morals; if it be one of the conventions prohibited by Art. 11 of the Code,
    • it is an absolute nullity, to which the law perpetually resists ; it is not susceptible of ratification, and the prescription of five years is inapplicable to it. A contract by the father or the husband to surrender the parental or the marital power; an obligation to pay money for the commission of a crime, or for doing an immoral act, the partition of a succession made before the succession is open, are instances of such conventions.”
    The Court, to support its decision, does not speak of the difference in the terms of the article, but it looks into its true spirit; and it makes such a lucid exposition of the convention prohibited by a law of public order that it is impossible to mistake the intention of the law. It is evident that, in all the cases of absolute nullity above mentioned, the conventions are contrary to good morals, and, therefore, to the public good. But can any analogy exist, or be even imagined, between a renunciation to jurisdiction, which changes only the place where the judgment is to be rendered, by the consent of the only person interested in the matter, without impairing the rights of the parties, with a convention to pay money for the commission of a crime, or for the abandonment of the paternal or marital power ? The difference between these supposed cases needs no demonstration, and characterizes the difference made by the Court, in the above decision, and in the decisions to be quoted hereafter, between the laws which cannot be derogated from, because they are passed for the ■ express maintenance of good morals and of public good, and the laws which may be derogated from, because, although they regulate matters of public order (as far as jurisdiction is concerned, for example), and guarantee certain privileges to individuals, the renunciation to such privileges cannot constitute an outrage to good morals or to the public good.
    If such a renunciation could be considered as an outrage to the public good, the Article 93 of the Code of Practice would have been repealed long ago or declared unconstitutional by our Supreme Court; and yet they do nothing but sanction the very principle that we are contending for. According to Article 92, when a Court is without jurisdiction on account of the nature of the case, ratione materiee, the parties cannot make it competent; there we find a principle of public order, without reference to persons. But, says Article 93, “ i a person, cited before a Judge out of his domicile, appears and answers to the merits, instead of declining the jurisdiction, the judgment against him shall be valid
    Can it be seriously presented that the law considers a renunciation to jurisdiction, on the part of a man fully cognizant of his rights, as an outrage to public order and good moráis, and permits at the same time that a poor ignorant man shall be deprived of the same right, which he could not renounce if he wished, by the mere fact that he has not filed an answer in Court, or that he has not, in his answer, declined the jurisdiction of the tribunal ? If he did not know that he could decline the jurisdiction, he ought to be entitled to a greater protection than the shrewd and well- . informed debtor. If, knowing his rights, he consents to the jurisdiction, why not permit him to regulate and fix the matter beforehand as well as after the proceedings are commenced.
    The fact is that our tribunals have never considered the renunciation to jurisdiction as outrageous to public order or good morals, but have, on the contrary, acknowledged its validity.
    In the case of Bupuy v. Griffon’s Executor (1. N. S. 198) the Court says : “When want of jurisdiction relates to personal rights or privileges of the defendant, it may be cured by consent.” Again, in the case of Fleming v. Hiligsberg: “The consent of parties cannot give jurisdiction when
    wanting ratione materise ; it can only confer it where mere personal rights are involved, or where the defendant answers to a suit instituted out of his domicile.”
    The Supreme Court is evidently of a different opinion from the Judge of the Second District Court; and instead of limiting to a single instance the abandonment of one’s domicile, places the voluntary renunciation on the same footing with the filing of an answer to a suit instituted out of defendant’s domicile.

      The French Code, Art. 3, expressly permits the renunciation to jurisdiction. If the question be put why the framers of our Code have not copied that article as they have copied so many others, the answer is easy and conclusive in favor of plaintiff. Art. 6, of the French Code, is the first paragrax^h of Art. 11 of pur Code, which says that individuals cannot, by their conventions, derogate from the force of laws made for the preservation of public order or good morals, and the framers of our Code, instead of copying the Art. 3, of the French Code, granting the special rights of renouncing to our jurisdiction, have inserted the general clause which is not to be found in the French Code, and by virtue of which one may renounce to all privileges established in his favor, when, that renunciation is not contrary to the public good.
    On this question the French commentators speak as follows :
    French Pandects: “With respect to laws concerning individual rights, every one may renounce to a right established in his favor. ”
    “Laws of public order are easily distinguished from laws relative to private rights. All laws which interest the whole society, taken collectively, are of public right; those concerning private interest are of private right.”
    Motives of the Legislative Body, 2d March, 1803: “ The framers of the Code have thought proper to permit renunciation to jurisdiction ; because, in so doing, the law only lends its force to the will of the parties, which is perfectly lawful and reasonable.”
    Bogron, Code Civil Explique : “Parties may renounce to that right because such a renunciation has nothing contrary to public order.”
    We have, perhaps, said more on this subject then was necessary, and we now come to the second ground relied upon by the Judge to dismiss plaintiff’s action, which we do not consider any more warranted by law than the first one. The decision says :
    “ The better to secure the exercise of such privileges it has pleased the Legislature, and wisely, too, by a late statute, t® forbid the renunciation to such a right before it becomes acquired, and this law was in force at the filing of the plea. (Acts of 1861, p. 187.)

    The waiver in question having been made in contravention of law, the defendant is welcome in repudiating the exaction.”
    The statute quoted by the Court is the one amending Art. 162 of the Code of Practice. The amendment consists in adding, after the words “It is a general rule in civil matters that one must be sued before the Judge having jurisdiction over the place where he has his domicile or residence” the following words: “and that it shall not be permitted to elect any other domicile or residence for the purpose of being sued.”
    To the argument of the Judge we simply answer: that the application of this amendment of the Code of Practice to a contract passed in 1856, could not give to the law a retrospective effect.
    The law provides for the future. It says that a person shall not be permitted to elect another domicile. It implies thereby, and in fact acknowledges, that such a right existed before. If so, the Statute of 1861 canuot deprive a person of a right acquired under a previous law.
    It is the same principle applicable to contracts allowing interest at the rate of 10 per cent, before the passage of the law reducing conventional interest to 8 per cent. Such contracts are daily enforced in our country.
    Notwithstanding five years have elapsed between the waiver of jurisdiction in this ease and the statute of 1861, yet the decision says: “The waiver in question having been made in contravention of law;”„what law.? certainly not the law of 1861, which was not in existence. It must then be the Article 2 of the Civil Code; but then, what connection can there exist between that article and the statute of 1861 amending the Article of 'the Code of Practice relative to jurisdiction.
    It is impossible to understand the Judge’s application of the statute of 1861 to the present case, otherwise than by supposing that he considered that statute as merely explanatory of the law as it stood previously, to wit: the principle contained in Art. 2 of the Civil Code, by which all privileges could be renounced when the renunciation was not contrary to public order or good morals, which he considers as outraged in this case. At all events, as the plaintiff is met by the Court with the statute of 1861, let us, in the darkness which surrounds us, determine what is -the characteristic of an ex post facto law in opposition to an explanatory law.
    Merlin, verbo Effet Rétroactif, Sect. 3, f-1, No. 1, says: “In order to-give to a statute the character of a retrospective law, two conditions are necessary: 1. It must apply to what existed in the past, and change it. 2. It must do so to the prejudice of those affected by its dispositions.”
    It is easy to ascertain, by the application of the two conditions required by Merlin, to the statute of 1861, whether that law has a retrospective effect, or not.
    In the case at bar, for example, it is evident that, according to our laws and jurisprudence, 1. We had the right to renounce the privilege of jurisdiction established in our favor: the statute of 1861 repeals that right in express terms; 2. It repeals that right to the prejudice of the plaintiff, who is met by the prohibition of the statute, when he wishes to exercise the rights conceded to him by a contract perfectly legal according to the laws in existence when it passed.
    It may sometimes be difficult to distinguish between a new law and a law explanatory of a former one; but when the law lately passed has, in its application to a stated case, all the characteristics of a retrospective law, that is, when it changes the situation of the parties and destroys their vested rights, then no doubt can exist. Should even the Legislature give to a retrospective law the title of an explanatory one, such a Statute could not be held valid, because the Legislature could not be ■permitted to do indirectly* what it cannot do directly. If therefore we admit, for the sake of argument, that it was the intention of the Legislature, or that the legal consequence of the statute is to explain the true Intent of Art. 2 of the Civil Code, our answer to such a plea is that the statute of 1861 is, under that view, unconstitutional.
    Article 115 of the Constitution of the State of Louisiana says: “ Every law enacted by the Legislature shall embrace but one object, and that, shall be expressed in its title.”
    1. The law shall have but one object.
    The statute of 1861, if construed in favor of the defendant, would have-two objects: first, that of amending Art. 162 of the Code of Practice, which cannot be denied, since the title itself says so; secondly, that of explaining Art. 2 of the Civil Code, of which the title says nothing, and the application to which is the only mode of explaining, as we had said, the opinion of the Judge that the renunciation, in this case, is contrary to public order and good morals.
    2. The object of the law shall be expressed in its title.
    If the Legislature had entitled the statute “An Act to explain Art. 2 of the Civil Code, and to amend Art. 162 of the Code of Practice,” it would be unconstitutional. State v. Harrison, 11 A. 722. The silence of the Legislature on any other object but that mentioned in the title of the statute, cannot authorize the Court to adopt a construction contrary to the Constitution.
    The defendant, therefore, cannot argue of any other object of the law, but that mentioned in its title; for if the Court was to extend its application to an explanation of the eleventh article of the Civil Code, it would, by so doing, pronounce its unconstitutionality.
    Nothing can give to the statute of 1861 the character of an explanatory law. Its bearing is limited to future transactions, and its dispositions, cannot be invoked to deprive the plaintiff, in this case, of his vested right to prosecute his claim before the Second District Court of New Orleans. It is therefore prayed, that the judgment appealed from be revei sed, and the case remanded for further proceedings.
   Labatjve, J.

The two notes sued upon were executed by the defendant,, a resident of the parish of Avoyelles, on the 18th day of November, 1856, pa. able, respectively, on the 12th and 15th November, 1860. This suit was filed and instituted on the 5th August, 1861, before the Second District .Court of New Orleans, when the defendant was still residing in the said parish of Avoyelles. In order to secure the payment of said promissory notes, and others executed on the same day, to the amount of $75,000, the defendant consented and gave a special mortgage by public act, before a notary public, in New Orleans, on a plantation and slaves, situated in the-parish of Rapides. It was stipulated in the act of mortgage that, if it become necessary to institute legal proceedings for the recovery of the amount of said notes, or of any part of them, the defendant agreed that such legal proceedings might be instituted and carried to final judgment and execution in any of the District Courts of New Orleans, or other Courts of competent jurisdiction in said city, waiving and renouncing the-benefit of any and all laws providing that defendants can only be sued or proceeded against before the Judge of the Parish or District wherein, they reside or have their domicile. By the act of 1861, p. 137, the Article 162, O. P., requiring that defendants must be sued before their own Judge, was amended by adding the following words : “ and that it shall •not be permitted to elect any other domicile or residence for the purpose of being sued.”

The defendant excepted to the jurisdiction of the Court as follows :

“The defendant, Hugh M. Keary, now appears for the purpose of excepting to the jurisdiction of this Court, and excepts on the ground that his domicile is in the Parish of Avoyelles, and that he is not amenable to the jurisdiction of this Cotu’t, and he denies that the clause in the act of mortgage relied on by the plaintiff to sustain the jurisdiction of this Court, has any legal or binding effect.”

The District Court sustained the exception, and dismissed the suit as prayed for.

The plaintiff took this appeal.

The motive of this Amendment is very clear to our mind; it was enacted to prevent the improper exercise of undue influence and advantage by money-lenders upon the needy, and to prevent also the obligor from waiving his domicile in advance, and at the time of the contracting of the obligation ; and the only effect of this law is to reserve to the debtor his rights of pleading to the jurisdiction of the Court, notwithstanding any agreement to the contrary, but it does not forbid him from submitting to the jurisdiction of the Court, if he chose, by appearing and answering on the merits. C. P., Art. 93. Previous to this amendment, it was always considered that a party in contracting a debt, could agree to waive his domicile, and submit to the jurisdiction of another competent Court than, that of his residence.

This article, 162 of the Code of Practice, cannot be considered as a law of public order, or good morals, but as one of convenience; enacted for a limited class of individuals, and which does not concern the public. Individuals cannot, by their convention, derogate from the force of laws made for the preservation of public order or good morals.

But in all cases in which it is not expressly and impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and it is not contrary to the public good. C. C. Art. 11.

The very enactment of this amendment to Art. 162, C. P., is a strong argument, going to demonstrate that' previous to its passage, parties could waive their domicile by agreement; now any such waiver is prohibited and not binding. It is the agreement that is prohibited, and nothing more. ¥e believe then that the agreement by which the defendant consented to waive his domicile or residence, was legal and binding on him at the time he contracted the obligation, and the legislative act passed subsequently, would not affect the rights of the suing creditor.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled and reversed ; that the exception to the jurisdiction of the Court be overruled, and that the case be remanded to be proceeded in according to law, and that the defendant and appellee pay the cost of this appeal.


author: Hyman, O. J.

text:
    Alexander McDonald v. Samuel Stewart.
    A verbal contract of lease may be proved by parol.
    An agreement in a contract of lease for the tenant to pub improvements on the ground let, so that he may use the ground to advantage, is as much a part of the contract of lease, as would be an agreement therein for him to till the soil. Improvements so made on the personal property of the tenant, and any agreement relative to them, may bo proved by parol.
    When parties enter into a contract, the contract is to be regulated by the laws in force at the time, and not by laws subsequently made ; though the legislature may pass laws subsequent to the contract, directing the manner in which the rights of the parties thereto may bo secured and enforced. It may extend or restrict the remedy, but it cannot exclude all remedy.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Whitaker, Fellows & Mills, for plaintiff and appellant. O. Roselius, for defendant.
   Hyman, O. J.

Plaintiff alleged that by a written agreement he had leased from defendant a lot of ground, with a house thereon ; that since .the property was so let, and while he was tenant, the lease was verbally renewed, and new arrangements entered into ; that by verbal agreement with his lessor, he had put houses on the ground let; that he occupied and received rent for them, paying lessor the ground rent agreed upon; that he and Ms lessor agreed to insure in lessor’s name, and in one policy, both Ms and his lessor’s bmldings; that the buildings were so insured; that the houses were burned by fire, and that lessor had .collected the insurance, $3,000, and had refused to pay Mm $1,500, the .amount to which he was entitled by the agreement and insurance.

He prayed for judgment against defendant for $1,500, and interest.

The Judge rendered judgment of nonsuit, and he has appealed from .this decree of the Court.

Plaintiff, after proving the within lease and the policy of insurance, .offered parol evidence to prove the other allegations.

Defendant objected to such evidence, on the ground that written evidence only could be received. The Court sustained the defendant’s •objection, refused to receive the evidence, and plaintiff filed a bill of exception to the rejection of the evidence.

A verbal contract of lease may be proved by parol.

An agreement in a contract of lease for the tenant to put improvements •on the ground let, so that he may use the ground to advantage, is as much a part of the contract of lease, as would be an agreement therein for him to till the soil.

Civil Code, Art. 2697 recognizes the right of the tenant to put improvements on the thing let, and his right of ownership in them. It does not impose any restrictions on him in making improvements, but that if so making them, that they can be removed from the thing let, without changing it from the state in which it was when he received it.

Improvements so made on the personal property of the tenant, and any agreement relative to them may be proved by parol. The parol evidence was offered to prove a new agreement, not inconsistent with the written lease, extending the privileges of the lessee.

Such evidence is admissible. See 1 Robinson, 358 ;,7 Robinson, 520.-

Since this suit was instituted, the Legislature, on 29th day of March, 1865, passed an act entitled an act to amend article 2653 of the Civil Code; which prohibits the introduction of parol evidence to prove a verbal contract of lease.

When parties enter into a contract, the contract is to be regulated by the laws in force at the time, and not by laws subsequently made ; though the Legislature may pass laws subsequent to the contract directing the manner in which the rights of the parties thereto may be secured and enforced. It may extend or restrict the remedy, but it cannot exclude all remedy.

This act of the Legislature, if it could be effective as to verbal contracts o'f lease entered into prior to its passage, would exclude the only evidence (which was admissible when leases were so made) that the parties could produce to prove their contracts, and it would not only impair, but virtually destroy the obligations of such contracts. 7 La. 306.

This law can only prevent parol evidence of such contracts, made after its passage.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be avoided and reversed; that the ease be remanded to the District Court; that the Judge thereof be required to receive, on the trial of the suit; parol evidence of verbal agreements in relation to the property let, which are not contradictory to the written lease, and made subsequent thereto ; and that, on proof by parol, that the houses burned belonged to plaintiff, he be further required to receive parol evidence of verbal agreements relative to them.

It is further ordered, that defendant pay the costs of this appeal.

Howblu, J., recused.