text:
    Hall v. Wills et al.
    Where one w6o had contracted to erect certain buildings, becomes insolvent, leaving the buildings incomplete, and an instalment of the'price, payable on their completion, unpaid, nothing in the stat. of 18 March, 1844, requires that the owner, in order to entitle himself to apply the unpaid balance to their completion, should have an estimate of the work remain» ing to be done made by any disinterested persons. However expedient such a course may be, it is not required by the statute. Whatever has been necessarily expended in the com* pletion of the buildings, must be deducted from the unpaid instalment. The provisions for a submission to arbitration in sec. 3. of that stat., contemplates only disputes between the contractor and those employed by him, or who have furnished them with materials.
    By the stat. of 18 March, 1844, relative to riiechanics and laborers employed by builders, and the furnishers of materials, these persons, as against the owner, hold under, and not beyond, the building contract.
    An account, presented by a furnisher of materials, used in the construction of a building, to the owner, in order that the latter may retain its amount. out of subsequent payments, under the provisions of the stat. of 18 March, 1844, which states the quantity of the materials furnished, the dates of the delivery, the prices, and that they were delivered to the contractor tobe used in the buildings, and is certified by a justice of the peace to have been sworii to before him, is sufficient under the statute. '
    Under the stat. of 18 March, 1844, mechanics and laborers émployed by abuilder, and those' who have furnished him with materials, who have complied with the provisions of that stat by presenting attested accounts to the owner, are entitled to' any amount, not exceeding their claims, unpaid under the contract at the time of the notice, after subtracting the amount necessary to complete the buildings ; hut the owner cannot he made liable beyond' the amount of his contract; nor will he be liable by reason of any paymentmade to the contractors in advance, where the amount so advanced would have become due before the date of the notification to the owner of the claim of the laborer or furnisher of materials*
    As to the rights of the laborers and furnishers 6f materials’ inter se, they must share the fund! pro rata; they do not rank in the order of time; and any such creditor for labor'of materials' has a right to participate in the fund until distributed.
    he judgment of a court of the first instance rendered in an action instituted by the owner of a building praying for a distribution of a balance due by him to the builder among the-laborers and furnishers of materials who had presented him with their accounts under the provision of the stat. of 18 March, 1844, admitting any claimant to a participation in the' fund, cannot he examined on appé'al, where the party dissatisfied has not appealed from! the decision.
    APPEAL from the First District Court of New Orleans, McHenry, J.-

      J. E. Jones and Schmidt, for the plaintiffand appellant, Hale.

      H. A. and? H. B. Bullard, for the appellant, Blanc.-
    Mathewson,- J. and H. H. Straivhridge, Greiner, Sever, and Mott, for different appellees.
   The judgment of the? court wad pronounced by

Slidell, J.

The plaintiff had contracted with the defendant, Wills, for' the erection of certain buildings. Before the completion of the work Wills became insolvent, and the plaintiff completed them himself. After the default of the builder, various persons, who had furnished materials and labor, delivered accounts to the plaintiff, availing themselves of the provisions of the act of 1844,-(Acts p. 34.) The plaintiff then instituted the present action, in which he has made the contractor, and the material-men, and mechanics, parties. He acknowledged that the last instalment, which Was to be’ paid only ftpon the-Completion of the work, was unpaid, but alleged that, in completing the work-himself,- he had expended a sum of $790 21, leaving a balance due of $1429 79, which he deposited in court. He prayed that the parties interested be required to litigate their respective rights in the distribution of the fund, and that he might be discharged from all further responsibility. He subsequently deposited in court the further sum of $790 21; but, under a reservation of his right to have that amount restored to him, or such portion of it is as he might prove was necessarily expended by him to complete the buildings. A judgment was rendered by the court below rejecting the claim of the plaintiff for the sum alleged to have been expended in the completion of the buildings, dismissing the claim of Blanc,- one of the defendants, who had furnished materials, and distributing the balance of the fund, after payment of the costs, among the other creditors. The only appellants are Hale and Blanc.

1. The ground upon which the court rejected the claim of Hale for the amount of $790 21, alleged to have been expended in the completion of the buildings, was tlms stated by the district judge : “ To enable tho proprietors to withhold from the sub-contractors and the furnishers of materials any part of the money which would have been due by him to his contractor had the buildings been finished, and to apply the same to their completion, he should have had the work, which was to be done, submitted to the arbitrament of three disinterested mechanics or persons, in order that the same might have been estimated and settled in the manner that contested accounts are directed to be settled between the contractor and his sub-contractors, and furnishers of materials, as provided by the third section of the act of 1844.” The district judge also remarked that: “ Should any construction be put upon this law by which the proprietor could be allowed at his option to expend the money due to his undertaker without restraint, we think it would lead to fraud, and defeat the end that the legislature had in view when they enacted the statute.”

While we fully appreciate the propriety of a submission of the subject of the unfinished work and its estimate to the arbitrament of disinterested persons, as a measure of expediency and precaution, we cannot assent to the opinion that the statute has required that course as a prerequisite on behalf of a proprietor, who has had the misfortune to employ an insolvent or unfaithful contractor. The provision-for a submission to arbitration, contained in the third section of the act, contemplates only disputes between the contractor and his journeymen, laborers, or persons who have furnished him materials. There is nothing in the terms of the section embracing, either expressly or by implication, the case of the defaulting contractor and the proprietor who finds himself left with the building unfinished. And we may further remark that, even the submission to aibitration, provided for in the case of disputes between the contractor and his journeymen, &c., is to take place “ on the agreement of both parties.”

The statute of 1844, While it contemplated the protection of mechanics, laborers, and material-men, was not intended to injure or oppress the proprietors. We shall presently have occasion to show that, as against him, they hold under, and not beyond, the contract. The proprietor, therefore, who respects the contract, and does not violate any provision of the statute or Code, to the injury of the mechanics, &c., is to be protected. In dealing with a contractor who proves insolvent or unfaithful, he has committed no greater imprudence than the mechanic or the furnisher of materials.

In the silence of the statute upon 'the subject of the course to be pursued by the proprietor in case of default on the part of the contractor, we must look to the general laws, and to the suggestions of reason and equity-. Now Hale had made a contract with Wills to build -for him, at a certain price,: to be paid by instalments osthe work progressed; and the lastjnstalment, which forms the fund in dispute, was not to be paid till the-work was finished. The defendants, knowing the terms of the' contract, furnished Wills materials, or gave him their labor. But Wills failed-to accomplish the condition upon which the last instalment was agreed to be paid, the completion-of the work. Upon his default, the right of the plaintiff against Wills, and consequently against the defendants, who claim under the contract made by him, _was, to. complete the work- Whatever was necessarily and reasonably expended for that purpose must be- deducted from the stipulated instalment," and the balance only belongs to Wills, or his creditors.

On the score of proof, however, the plaintiff’s case is partially defective. When he deposited the sum of $790 21- in court, he offered an issue as to the fact and the reasonableness of the alleged expenditure, and placed his right to recover the deposit upon his ability to prove that he had actually and necessarily expended that amount in completing tlie work, Ho- has not made nut 111 case beyond the sum of $531 71.

II. The district judge was of opinion that, under the evidence, the claim of Blanc was correct, but that he had failed to deliver to Hale an account duly attested under the statute. The language of the statute of 1844 is that, “the journeymen, &c., may deliver to the owner of such building, an attested account (un compte certífié) of the amount and value of the work and labor thus performed, and remaining unpaid; and thereupon such owner hall retain, out of his subsequent payments to the contractor the amount of such work and labor, for the benefit of the person-so performing the same.” By the fifth section the provisions of the statute are extended to persons furnishing materials.

In the account, Wills is stated as the debtor of Blanc for various items (brick and sand), the quantities, dates, and sums being stated. At the foot of the bill is the following memorandum : “ These bricks and sand were delivered to Mr. Wills for the construction of Mr. 'Thos. Hale’s houses on Magazine and Annunciation streets. New Orleans, December -6th, 1847. JEvr. Blanc, for J. A. Blanc.” At the foot is the certificate of jural by a justice of the peace. This document was delivered to Hale, who filed it -with his petition as one of the claims notified to him; and the correctness of the accounts is proved by a witness in the cause. The requisitions of the statute seem to us to be,satisfied. The precise form of the attestation, or certificate, has not been prescribed. The document contained the details of the claim, was under oath, and exhibited to Hale and the contractor all needful information. We must add, that we are not prepared to say that, even if Blanc had given no notice before the institution of this suit, he would have lost his right,to intervene before a decree of distribution, and to participate in the funds.

III. The appellants, in their answer to the appeal, have asked that, Hale be condemned to pay .their respective claims in full. At the time when they gave their notices the.only unmatured instalment was the last, and the amount of these claims largely exceed the amount ¡unpaid. ‘There is no such right contemplated by the statute. • They are only entitled to the amount unpaid under the,contract, after the due.allowance of the .plaintiff’s necessary expenditure for the completion of the work. The language of the statute is not ambiguous — “ and thereupon such owner shall .retain, out.of his subsequent payments to the .contractor, the amount of such work and labor, for the benefit of the person so performing the .sama.” sec. 1. And again, .in sec. 4 : “ That whenever the amount.due shall be adjusted and.ascertained, as .above provided, and if the contractor shall not, within ten days after it is so adjusted and ascertained, pay the sum due to his creditor, with the costs incurred, .tho owner shall pay the same .out of .the funds, as provided; and which amount due may be recoveredfrom the said owner ■by the creditor of the said .contractor, in an action for money had and received to the use of .said creditor, and shall be entitled to the same .privilege .as the contractor to whose rights the said [creditor] shall have been subrogated, and to theextentin value of any balance due .by the owner to his contractor, ¡under the .contract with him, at the time of the notice first given as aforesaid, or subsequently accruing to such .contractor under the same, if such amount shall .be less than the sum due from said contractor to his creditor.”

Hence it appears that the mechanics &c., take ■“ under the contract; *’ they are to have the benefit of the fund which the proprietor owes under it, and which is unpaid .at the time of notice. But he is not to pay more than under the contractile stipulated to pay. Sucha construction asis contended for, would be oppressive and unjust. Take, for example, a supposed case, by way of illusitrating the matter in its simplest form. A. makes a contract with B., a builder, for a house, to cost $5000, the whole price to be paid on the completion of the work. From the subsequent rise in the value of materials and labor, or the improvidence of B., or from both those causes, B. goes in debt to his journeymen, his laborers, the sellers of lime, bricks, lumber, &c., to the amount of $7000. When the house is finished, and before A. has paid, all these creditors have notified their claims. Can it be said that A. must pay $7000, although he .only promised to pay $5000. The answer is obvious. The creditors only looked to him to tb,e extent.of his contract, and for the residue have no recourse except against the contractor.

As regards-the rights of the defendants, interse, since they cannot all be paid in full, they must take the fund pro ratcf. The general rule of distribution among creditors is equality. Thp Code expressly forbids preferences, except .where the law has expressly declared their existence. The statute of 1844 .does not declare that the creditors who notify their accounts shall take rank in •the order of time, and its omission to do so is certainly just, for they are to be considered as having all trusted to the same fund. So long as the money which -has fallen due under the contract, is unpaid to the contractor or to notifying .creditors, any creditor has a right to give notice, and participate in what remains .unpaid.

IV. Some of the appellees have asked that certain creditors, included in the .distribution by the court below, be excluded by our decree. If the appellees .were dissatisfied with the judgment of the court below, admitting these parties to a participation in the funds, they should have appealed. See Girod v. His Creditors, 2 Annual, p.546.

V. As the first five instalments had matured before any notices were served upon Hale, it is unnecessary to consider the bill of exceptions taken by Hunt. If, for example, an instalment falls due on 1st November, but is paid by anticipation to the contractor, and the creditor gives notice after the 1st November,

jn other words, after the maturity of the instalment has passed, it is obvious that, the anticipation cannot be considered as having injured the creditor. As we have already remarked the language of the statute is — “ shall retain out of his subsequent payments.”

It is, therefore, decreed that, the judgment of the .court below be reversed. It is further decreed that the plaintiff receive, out of the fund deposited in pourt, the sum of $231 71. And it is further decreed that, the residue of snid sum so deposited, be distributed among the creditors named in the schedule annexed as part of this decree, as therein set forth. And, it is further decreed that, the costs of this appeal be paid by the defendants named in said schedple, except the said Blanc;

      fliis schedule (Jislrilpitcil the fund pro rata.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Hatch v. Gilmore.
    In ¡tfie absenc.e of evidence to the contrary, an endorsement will be presumed to have been made pt the place where the note was executed.
    An action against the endorsers of a promissory pote /nade and endorsed in another State, is prescribed by five year? from the .date of the note, under arts. 3505, 3506 of tlie Civil Code, though the endorser resided for a part of the time in the State where the note was made. The rale Contra non valentem, fyc. is inapplicable to such a case.

      Appeal from the Fourth District Court of New Orleans, Strawbridge, J.

      Mount, for the appellant.
    Art. 3506 of the Civil Code declares that the prescription established by art. 3505 shall run against minors, &c.; it does not provide that if shall run in their favor. The prescription of fiye years does not run in favor of an absentee. See Guittetv. Erwin, 7 La. 58.0. 12 Martin, 76. Ker v. Erwin, 4 La. 217. Garland v. Holmes, 1 Ann. 404. Such is the law in other States. In Buggies v. Keeler, 3 Johns. R. 264, C. J. Kent says: “ If the cause of action arise out of the State, it is sufficient to saye the statute from running in ¡the favor of the party to be charged until he corpes yithin our jurisdiction.” So in Halsey v. Beech, } Pen. N. J. Rep. 122. So in Dwight 8f Clark, 7 Mass. 516. Sneed v. Hall, 2. Marsh. Ky. R. 21. So where a debtor at the time the cause of action accrued, was residing out of the State, subsequent temporary visits in the State, without the knowledge of plaintiff, is not sufficient, &c. 2 IT. S. Dig. p. 363, sec. 330, Crosby v. JVya.lt, 10 Shepley, 156. ’Same Dig. sec. 331. 12 New Hamp. 271. Ib. sec. 334. Hillv. Bellows, 15 Verm. 927. 5 How. Miss. R. 258. 3 Pi.ke, Ark. 4.09. 7 Mo. 241. Ib. 473. 8 Mo. 233. 5 How. R. 266. White v. Briley, 3 Mass, R. 273- Wilson v. Appleton-, 17 Mass. R. 1.8}. Hall v. Little, 14 Mass. 203. 11 Wheaton, 331. ,6 Wheat. 541. 2 Stark. Ev. 901, note 2.

      Edwards and Hayes, on the same side.

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

Slidell, J.

The defendant is sued as the endorser of a promissory note, dated at Vicksburg, Mississippi, May 2, 1835, payable at twenty-four months after date. Thp case turns upon a plea of prescription; and the facts pertinent to the plea are, that, at the ljiafurity of the note, May 5, 1837, the defendant resided in Vicksburg: and that he continued to reside there until the 4th October, 1842, at which date he came, for the first time, to Louisiana, where he has since lived. In the absence of evidence to the contrary, it is to be presumed that the defendant endorsed the note in Mississippi. The citation was served on the 22d December, 1846.

In avoidance of the plea of prescription the plaintiff relies upon the maxim, “ Contra non valentem agere, nulla currit prescripts,” The applicability of this rule, under the circumstances of this Gase, is the only point which requires our attention. This maxim, which has been lauded by some jurists, has been found fault with by others as opening a door to abuse, by reason of its vagueness and generality. It is not our purpose, on the present occasion, to attempt to lay down any rules for its application, except so far as i.s indispensable fqr fhe case before us. To do so would be a task not free from difficulty, and it is better to leave various cases as they arise to be considered upon their proper merits.

Express legislation has provided various terms of prescription adapted to the various transactions and interests of individuals, and has, in many cases, expressly declared exceptions to the application of the general limitations of acr tion so established- The exception contained in the maxim under consideration, so far at least as the class of contracts now in question is concerned, rests not upon the Code, but upon jurisprudence. From these considerations it seems to us a j.ust conclusion, that, if the exception Contra non valentem is to be applied to cases where the Code has declared no exception, it should be done with caution, and only where .the manifest spirit and intention of the express jaws is not violated.

Now it is declared, in general and unqualified terms, by article 3505, that: Actions onbills of exchange, notes payable to order or bearer, except bank #otes, those on all effects negotiable or transferable by endorsement or deliver ry, are prescribed by five years, reckoning .from the day when these engagements were, payable.” Then follows an article indicating the policy of the lawgiver, and his intention that the rule should be stringently enforced: “ The prescription mentioned in the preceding article, and those described in paragraphs 1 and 2, runs against minors and interdicted persons, reserving to them their recourse against .their tutors or curators. They run also against persons residing out.of the State.” Here the law expressly forbids an exception to be made even in favor of minors, .the class, of all persons, which the law is most disposed to favor and protect. Fragile et inf/rmum ejusmodi cetatum.consilium. They are presumed not to understand their rights, and not to be capable of taking notice of the.r.ules of law, so as to be able to apply them to their advantage. Hence it is that the Code abounds with exceptions in favor of minors; and when we find them expressly bound, in this particular case, by the prescription of five years, it seems to ,us we should be .doing violence to ,the spirit of the written law, to let in an exception resting merelj in jurisprudence. See also Tyson v. McGill, 5 La. 146.

In the views we .have expressed we ¡have taken it for granted, for the purpose of argument, that the maxim, Contra non valentem, 8{c. would apply to the case before us, were the contract not of the class comprehended by articles 3505 and 3506. \V,& do not wish, however, to be considered as expressing an .opinion upo.n that point, as it isno.t necessary now to do so.

Judgment affirmed.


author: King, J.

text:
    Delassus v. Roumage et al., Executors.
    Whore, subsequently to an act of sale of lands, the parties declare in aseparate act that the reai consideration of the sale was a debt due by the vendor to the vendee, and stipulate that the vendor shall he allowed to sell any part ,of the lands the sale of which may be approved by an agent of the creditor, and that the credttor shall reconvey to the debtor any lands that it may not b.e necessary to sell in order to pay the debt, and the creditor dies: Held, that no action will lie against the executors of the deceased to compel them to appoint an agent by whom the sale of the lands maybe approved; that they have no authority to dispose of the property of the deceased at private sale, such an .act not being one of administration ; and that the heirs of the deceased are the proper persons with whom to contest the propriety of appointing such an agent.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Delavigne, for the appellant.

      Eyma and Pitot, for the defendants.
   The judgment of the court was pronounced by

King, J.

Delassus, by an pet passed in 1843, conveyed all his lands in the State of Missouri to Maearty. The consideration expressed in the deed was 3540,000, On the 10th Febrpary, 1846, a second transfer of the same lands was made to Maearty by a more definite description of the tracts, and of the titles under which they were held. On the 1st May, 1846, a third act was executed between the parties, in which it was declared, that the real consideration of the sale was an indebtedness of 35126,794 69 with interest, due by Delassus to Maearty, for which sum a judgment by confession was rendered in favor of Maearty. Mficarty stipulates in this last act, if the amount of the judgment should be paid to him by the partial sale of the lands or otherwise, to reconvey to Delassus such of the lands as should not have been sold to satisfy his judgment. Delassus was to be permitted to go to Missouri, for the purpose of effecting such sales of the lands as should be approved by Macarty’s agent in that State. Macarty, however, reserved to himself the right of selling any part of the lands, not under the mai'li'et price, on such terms and conditions as he thought fit, for the purpose of paying his judgment, binding himself to reconvey thelp-esidue only, if any should remain. After Macarty’s death, Delassus presented a petition to the District Court, in which he avers that, he is ready to proceed to the State of Missouri, for the purpose of effecting sales of the lands in accordance with the stipulations of the act between himself and the deceased ; and that he has called upon, the execptors to appoint an agent in Missouri, to approve of such sales, but that the executors declined naming an agent. He concludes with a prayer that the executors be ordered to appoint an agent, to cany into effect the' purposes of the act. The executors assumed that they were without authority, either by the will or by law, to appoint an agent for the purpose of disposing of property of .the deceased by private sale. They prayed that the plaintiff’s demand should be diámissefi!; but, if the court considered that an agent ouglit to be'appointed; they asked that the heirs of the deceased should be made parties to the proceeding. The heirs were accordingly cited through their representatives. The tutor of the minorheirs made no specific objection to the application, but submitted the question to the decision of the court. The other heir opposed the application, and averred that the right of selling the lands resided in the heirs alone, who were not'bound to consult the plaintiff iu relation to such sales. The cause was tried as between the plaintiff and the executors alone. The district judge dismissed the suit as against the executors, and ordered it to proceed against the heirs; and from this judgment the plaintiff has appealed. In our opinion there is no error in the judgment appealed from. The executors were clearly without authority to appoint an agent to dispose of property of the deceased at private sale. The act which the executors are called on to perform, is not one of administration. The proper parties' with whom to*contest the propriety of appointing such an agent, are ,now before the court; as between them and the plaintiff the action is still pending. We do not consider the question before us, as ter the right of the plaintiff to maintain his action against the heirs.

Judgment affirmed.-


author: Kino, J.

text:
    The State v. Ritchie.
    Where a special verdict is returned, the jury must find all the circumstances'which constitute the offence, to enable the court to render judgment. No defect in- the statement by the jury can be supplied by intendment or implication. Thus where the carrying away and disposing of the slave of another constitutes no offence under the statute, unless the owner be thereby deprived of the use and benefit of the slave, and the verdict does not state that the carrying away was without the owner's consent, no judgment can be rendered on it.
    A verdict so imperfeet and uncertain that no judgment can he rendered on it, does not operate as an acquittal, and, even if the prisoner he discharged, is no bar to another prosecution for the same offence. In such a case a venire facias de novo should be awarded,

      APPEAL from the First District Court of New Orleans, McHetiry, j:

      Elmore, Attorney General, for the State.
    /. M. Wolfe and i?. M. Carter ¡

    cited 5 Bacon’s Ab. verbo Verdict, p. 296. 1 Blackford R. 247. 1 Lord Raymond, 324. 2 lb. 1581. 1 Wilson, 55. Hobart,- 262. 1 Caines’ Rep. 60. 3 Term Rep. 1 Henry & Munf. 236. Rolling v. Mayor of Petersburg, 3 Randolph’s Va. Rep. 4 Randolph, 533. Chitty’s Crim. Law; 643. 6 Craneli, 274, 285.
   The judgment of the court was pronounced by

Kino, J.

The indictment charges that the defendant did “ inveigle, steal, and carry away a negro slave named John, the property of one Philip Millaudon, so that the owner of said Slave, the said Philip Millaudon, was then and there deprived of the' use and benefit of his said slave John," &c. The jury returned the following special verdict: “We the jury find the prisoner guilty of carrying away and disposing of the negro boy, John, the property of Philip Millaudon." The district judge considered that the facts found constituted the crime charged, and pronounced sentence upon the accuséd, from which the latter has appealed. The question presented is',- whether the verdic’6 is sufficiently certain to found a judgment upon.

The authorities are full to the point that, when special verdicts aré returned, the jury must find all the circumstances which constitute tile offence, in order to enable the court to render judgment. No defect in the statement made by the jury, can be supplied by intendment or implication^ 1 Chilty, C. L. 643. 2 East. C. C. 708. 2 McCord’s Rep. 130. 8 Cowen’s Rep. 409. Carrying away and disposing of the slave of another, constitute no offence under the statute, unless the owner be thereby “ deprived of the use and benefit of his slave.” The term deprived, used in the law, imports that, the carrying away must be done without the consent of the owner. The facts stated by the jury are not inconsistent With the acts having been done with the assent of the owner, or in the execution of a lawful purpose. One of the circumstances necessary to constitute fhe offence charged is not exhibited by the' verdict, and that circumstance cannot be supplied by thé court. The verdict is so uncertain and imperfect that no judgment can be given upon it. It is settled that such a verdict does not operate an acquital, and that, even if the prisoner be discharged,it is no bar to another prosecution for the same offence. 1 Chitty C. L. 646.-No sufficient reason has been suggested why the rule which prevails in cases of misdemeanor and in civil proceedings, of ordering a venire facias de nov'o, wheha defective special verdict is returned, should not also apply to a case like the present. We have been referred to no authority or practice which forbids it.See 2 Ld. Raymond, 1585.

The judgment of the District Codrt is, therefore, reversed.- It is fúrtheí’ ordered that the cause be remanded for anew trial, according to law.


text:
    The State v. Patza.

    a general rale rio evidence is admissible of other felonies committed by tlie prisoner, tliaxtf that charged in the indictment. But there are exceptions to this rule, one of which is where it becomes material to show the intent with which the act charged was done, when evidence may he given of a distinct offence, not laid in the indictment. Thus, on an indicbment under the stat.of 6 March, 1819, s. 2, for “ stabbing and thrusting with intent to commit the crime of murder,” it devolving on the prosecution to show that the act was done under such circumstances that the offence would be murder if death ensued, malice must be shown; and for that purpose evidence is admissible of an attempt by the prisoner to poison the party stabbed, and that whether the attempt to poison had been declared a crime by statute or not.
    An indictment for stabbing is not supported by proof of a cutting. Per Curiam.- The word stab imports a wound made with a pointed instrument; the word cut, one with an instrument having an edge. <•
    APPEAL from tlie First District Court of New'Orleans, McHenry, J.

      Elmore, Attorney General, for the State.

      Schmidt, for the appellant,
    contended thdt the court erred": Firsts in admitting evidence of a distinct and graver offence (B. & C. Dig. 251, no. 52) committed long previous, for the purpose of proving intent. Archibold’s C. Plead, pp. 68, 212, 246. 2 Russel, 694, 696. Wharton’s Am. Cr. Law, 168, 171,194,345. Secondly, in not charging as asked. 1 Russell, p.597. Rex v. Boyce, Moody’s Crown Cases, p. 30. Rex v. Gardener, Ibid 390. 3 Chitty. B. & C. Dig. p. 246, secs. 24, 270, 145. 9 Blacks. 198. Rex v. Amarro,-Rus. &Ry. 285. Rex v. McDermott¡ 355.
   The judgment of the court was pronounced by

King, J.

The defendant was indicted under the second section of the act of the 6th March, 1819, (B. & C. Dig. p. 265,) for stabbing and thrusting, with intent to commit the crime of murder. On the trial of the cause in the inferior court, Ann Williams, the person on whom the Crime is charged to have been committed, testified as a witness on the part of the State. After declaring that the accused cut her throat, she proceeded to state that, on a previous occasion, the accused had attempted to administer laudanum to her in wine, for the purpose of poisoning her. This testimony was objected to, on the ground that it related to a different offence from that to which the prisoner was called to answer. The objection was overruled,-and a bill of exceptions was taken.

The judge did not, in our opinion, err, in receiving the evidence. The general rule is, as stated by the counsel for the accused, that no evidence can be given of other felonies committed by the prisoner than that charged in the indictment. To this rule, however, there are exceptions, one of which is when it becomes material to show the intent with .which the act charged was done. Evidence may then be given of a distinct offence, not laid in the indictment. 2 Russ, on Crimes, pp. 694, 698.

In order to support the charge in the indictment, it devolved upon the pro - secution to show that, the act was done under such circumstances that the offence would have been murder if death had ensued. It became necessary, therefore, to show malice; and, for that purpose, former grudges and concerted plans to do bodily harm to the person to whom the violence was offered, have been uniformly admitted. In the case of an attempt to poison, evidence of former, and also of subsequent attempts, of a similar nature, are admissible. 2 Starke, Ev. 924. And on an indictment for maliciously shooting, if it be questionable whether the act was done by accident or design, .proof may be received that the prisoner, at another time, intentionally shot at the same person. 1 Russ, and Ry. 551. The evidence opposed in the present instance can not be considered open to the objection that it relates to a separate and distinct offence, the act which it discloses not having been declared a crime by statute. Tho circumstance, however, may have beeu material to show an evil design previously entertained by the prisoner against the person of the witness, and was admissible before the jury for that purpose.

The judge was requested to instruct the jury that, in order to sustain the accusation, the State must, prove that a stab had been inflicted, and that proof of cutting would not support the charge of stabbing.. The judge declined to charge as requested, stating that he recognized no such distinction, and to his refusal a bill of exceptions was taken.

A distinction exists between the words cut and stab in the ordinary acceptation of those terms. The word stab imports a wound made with a pointed instrument, and the word cut a wound with an instrument having an edge. Arch. C. P, 426. 1 Russ, on Crimes, 597. This distinction appears to have been recongnized in a recent case, in the interpretation of an english statute very similar to our own, in which those words are used to designate crimes. In the case of Rex v. McDermot, 1 Russ. & Ry. p. 356, it was held that an indictment for striking and cutting was not supported by evidence of stabbing. In construing a penal statute we do not feel authorized to reject the distinction thus recognized to exist between those terms when used to designate crimes. We think that the charge asked for was erroneously refused.

It is, therefore, ordered, that the judgment of the District Court be reversed. It is further ordered that the cause be remanded for a new trial.


author: Eustis, C. J,

text:
    Forsyth v. Martin et al.
    The drawee, with whom a bill has been left for acceptance, holds it as a deposit; and the retaining of the bill in violation of the deposit is a species of theft. The fact that the owners of the bill were indebted to the drawee for more than its amount, gives the latter no semblance of a right to retain it. No compensation takes place under such circumstances. C. C. 2207.
    A party will never be permitted to take advantage oí his own wrong, nor to pat his adversary in a worse position by a gross dereliction of duty on his part.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, X. The facts of this case are stated in the opinion infra.

      Mott, for the plaintiff.

      Micou, for the appellants.
    It has been contended that,, compensation would not operate, because the bills were held by the defendants as a deposit, and that it came within one of the exceptions created by article 2207. A deposit is defined by the Code to be, an act by which a person receives the property of another, binding himself to preserve it and return it in kind. Art. 2897. There are certain facts or circumstances, which are indispensably necessary to constitute this particular contract; as that the thing be delivered, that the contract be gratuitous, &e. These elements and others, enter into the essence of the contract. The principal end of the delivery must be, merely to keep the thing for the owner; “If it be not. then it becomes a different species of contract. Thus, if the delivery is made, in order to transfer the property in'the thing to the party, as for example, if the delivery is upon a donation, or a sale, or an exchange, or any other like valuable contract, it cannot technically be called a deposit. Another example put is, where title deeds are delivered to an attorney or solicitor, to enable him to defend any cause; there it is said not to be a case of deposit, but of mandate.” Story on Bailments, sec. 56. “ Dans tous les cas, elle n’assure au contrat le caraotére de dépót que lorsqu’elle a pour fin principals, la garde de la chose. La tradition est-elle faite dans un utre but, c’estun autre contrat. Mais ce n’est pas un dépót. Uniuscujusque eontractús, initium spectandum et causa.” Troplong, Dépót § 23. Rothier thust states what is necessary to-constitute the contract of deposit. “ II faui, lo, qu’il soit fait au dépositaiie une tradition de la chose déposée, si elle n’est déjá par devers lui: 2o, que la fin principals de le tradition soit la garde de cette chose; 3o, que le dépositaire se charge gratuitement de cette garde; 4o, il faut, comme dans tous les contrata, que le consentement des parties intervienne.” Poth. Dep. n. 6, art. 2. n. 10. 1 Domat, Liv. 1, tit. 7, see. 3. Pothier, Pand. Dig. Iib. 16, tit. 3, § 2. “ Et par-lá se résout íacilement la questien de savoirsi celui qui a recu deslettres de change pour en faire lerecouv.rement pour compte, est un depositaire ou un mandataire. II est clair (ainsi que la Cour de Cassation l!a decide le 20 Mai, 1814,) qu’il n’a été revétu que d’un mandat. Troplong, Dépót, n. 31.
    The Code preserves all these characteristics, in the definition and description of a deposit. Its object is a charge gratuitously assumed, to keep, and preserve and return, moveable property. If any other duty or act be stipulated, then the enquiry is, whether the mere keeping and preservation of the thing, be the main object or the incident. Iiit be'the principal object, it is a deposit. It is a trust reposed in the honesty of the receiver; but if the keeping be the incident, and not the main object, there is no deposit, and the ■contract is classed and treated under such other rank as may best accord with the intention of the parties. A bill of exchange is presented for acceptance. It may be accepted immediately, or it may be left an hour or a day for an answer. Is it possible to contend, that its delivery is .a deposit; that the main object of its being left, is to keep it safely; that the drawee has gratuitously assumed the charge of preserving the thing for the owner, and has submitted himself to the rules governing a technical deposit ? These questions can only be answered in the negative. The exception to the law-of compensation, established by the Code, is applicable only to that technical class of deposits, thus accurately defined by the Codes, and writers on the civil law. The leaving a bill for acceptance is not a deposit, and does not fall within the exception. In conformity with this view of the subject, ore all the decisions upon the right of compensation, .by banks and bankers, against their customers. The moneys left with banks, are known in common parlance, by no other name than deposits. They are so referred to constantly inlaws, bank statements, and books and treatises on banking. Yet the debts due to banks by its customers, are compensated and extinguished by their deposit account. Rogerson v. Ladbroolce, 1 Bing. ,93. 2 .Chitty’s Cases, 1158. Bank -of Louisiana v. Fowler, 10 La. 197.
    The delivery of a bill for acceptance or payment, is merely a written request to accept-or pay. Whether the answer be given immediately, or whether the drawee take a reasonable .time to deliberate, is at the option of the latter. The law merchant permits the .drawee to retain the bill for .a day. His exercise of this right, .is not with the intention, nor for the purpose of the safe keeping of the bill. The custody of the drawee, is not the main object, but merely an incident; in-fact whether he retain it only so -long ¡as to write his name, or for an hour .or .a day, is an.accident, dep.ending.on his own will, and not that of the holder. A bill being thus presented and accepted, the acceptor becomes the debtor of the holder, to the amount of the bill. The object oí the presentment is accomplished; and the bill becomes the evidence-of a debt between the parties.
    If such a bill, drawn at.sight, beaccepted, the debt is immediately due. But suppose the acceptor has notes or bills of the holder, d,ue and unpaid, may he not offer them in compensation against his acceptance? Take, for instance, a hill at sight-presented by a bank as holder, and the offer of the notes of .the bank in payment. It is impossible .to doubt .that compensation .would operate, and that the two debts, simultaneously existing, would extinguish each .other. C. C. 2204. Burroughs v. Nettles, 7 La. 119. ,Chitty on Bills, p. 390, ed. 1842. If such ahifl could be met and extinguished by compensation, -what obstacle ■prevents the same defense being .opposed to a bill on time 1 The .acceptor could pay .it at once. The term is granted for his benefit, and ¡not for the benefit of the creditor, (C. C. 2048 — Pothier on Obi., n. 233,) unless there be a stipulation to the contrary. If, then, the acceptor could instantly pay a .bill on time to the holder, he can instantly extinguish it by compensation.
    By an article of the Code de 'Commerce, the law in France .is made otherwise. Art. 146. 6 Toullier, n. .679. A bill payable on time, cannot be paid before maturity, withont the consent of the holder. But Ihis is not the law of Louisiana, nor the commercial law of the United States. It is held, by the law merchant, that if .the acceptor .pay .before maturity, but.do not take up the .bill, or otherwise, by carelessness, permit it to be issued again, he will be compelled to pay again,.to an .innocent holder. Chitty on Bills, ,p. 100, a. eng. ed. 1834. Story on Bills, sec. 417. But I have found no ease decided in England or the United States, to the point, that an acceptor could not make a valid tender of the amount of the bill, before its maturity, to the holder.
    There is another answer to the argument from the law of deposit. This suit was instituted at first, for the recovery of the bills specifically ; no relief was demanded, except a decree of restitution, and damages for detention; and this is the only appropriate relief in a suit for a deposit. But the bills having fallen due, the nature of the suit was changed, from a suit for the bills, to a suit on the bills. The supplemental petition demands a money judgment for their amount. The suit must, therefore, be decided as if the bills had been accepted, returned, and sued on by the holder. The possession of the bills does not alter the nature or existence of the debt. Whether produced in court by plaintiff or defendant, they bear witness to a debt by the acceptor to the endorsee. It js, therefore, contended, that by voluntarily changing the prayer for relief, the right to claim the restoration of the bills is waived, and the right. of compensation must be tested by the rules applicable to ordinary actions on bijls of exchange.
   The judgment of the court was pronounced by

Eustis, C. J,

The plaintiff, who resides in Kentucky, alleges that he forwarded for collection to Lonsdale 4 Co. of New Orleans, two certain drafts, for $1,000 each, drawn at Louisville, on Martin 4* Co., a commercial firm of New Orleans, payable ten days after sight; that the drafts were left at the counting-house of the said Martin 4' Co. for their acceptance, and that they fraudulently and illegally retained the same and refused to give them np. He prays for a writ of sequestration, and that they have judgment for the drafts, and.for general relief.

The defense is, that Lonsdale 4* Co., who were the debtors of the defendants, were the owners of the drafts sued for; that they were specially endorsed to their order by said plaintiff; that said Lonsdale 4' Co. presented said .drafts for acceptance, whereupon, the defendants, the drawees, being willing to accept and pay the same, did immediately accept the same, and, waiving the delay or time, gave to said Lonsdale Sf Co. credit upon the said demands due by them as aforosaid ; by means whereof said bills were extinguished by • compensation. A supplemental petition was afterwards died, by which judgment was asked against the defendants for the amount of the drafts, interest and costs. There was judgment for the plaintiff, and the defendants have appealed.

It appears that these drafts were left for acceptance at Martin Sf Co’s couuting house, and their retention of the drafts to meet the debt due by Lonsdale 4" Co. is attempted to be justified. The law on this subject is stated to be, in works of authority, that, in every case of a presentment for acceptance, the drawee }s entitled, if he require it, to have twenty-four hours to consider whether he will accept the bill or not; and it is u.sual, in such cases, for the holder to leave the bill with him during that period- If there is any trust which above all others ought to be held sacred by men of business, it is this. The drawee retaining the bill, for the purpose of determining on its acceptance, holds it on deposit, the violation of which the law .considers as a species of theft. Our insolvent laws deprive the debtor in actual custody of their relief, who shall have disposed of funds entrusted to him under the title of deposit. I Moreau’s Dig. p. 547. Pothier, Traite de Dépdt, § 43. The Code, art. 2207, which allows compensation, whatever may be the causes of the debts, expressly excludes its operation on a demand of restitution of a deposit. It is clear, then, that if the bills did belong to Lonsdale 4‘ Co., Markin 8f Co, had not the semSjance of right .lo retain them.

But, it is said that the plaintiff cannotjteegver, because he is not the owner of the drafts. ■

On the attempt of Martin, Sf C.o. to retain the drafts, Lonsdale Sf Co. refused to hold the drafts on their own account, and, as the agents of the plaintiff, brought the present action, which we think they had a clear right to do, under the circumstances. The prosecution of this suit on th.e part of the plaintiff is a ratification of this act, the authority of the attorney on record not having been drawn in question.

True it is that the drafts are endorsed to the order of Lonsdale ¿y Co. by the plaintiff, and have not been re-endorked to him 'by Lonsdale Sf Co., and for a very excellent reason, that the defendants kept the drafts themselves, and prevented the parties from putting the instruments in proper legal form for the recovery of the debt by the plaintiff. We can never permit a party to take advantage of his own wrong, nor put his adversary in a worse position by a gross dereliction of duty. Nemo ex suo delicto meliorem suam conditionem facere potest, ff. 50, 17, 134,1.

The payment to the plaintiff of the amount of these drafts, will be a good and valid discharge to th.e .defendants; which is all they can require in this ease,

Judgment affirmed.


author: Eustis, C. J.

text:
    Succession of Macarty.
    Art. 71 'of,the constitution, which prohibits any court from making “ any .allowance by way of fee or compensation in any suit ,or proceedings, except for the payment of such fees to ministerial officers as may he established by law", does not affect the right of an attorney or counsellor to recover the value of his services in an action, or in any other legal mod® in which the parties may preset# the claim for adjudication.
    A contract made by an executor with an attorney for a certain fee as compensation in full for any professional services necessary in the settlement of the succession, whether any action he instituted by or against the succession or not, may he binding between the parties personally, and y,e.t constitute po charge against the succession, ff an executor wh.o receives commission for his services chooses to devolve the whole labor and responsibility of the administration upon an attorney, he must pay for the services rendered by the latter; they constitute no charge against the succession.
    The succession will be liable.only for the value of the professional services actually rendered for its benefit.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      L. Janin, for the appellant,
    cited Dorsey v. Creditors, 5 Mart. N. S. 401. 5 Mart. 416. 6 lb. 416. 9 lb. 365. 9 La. 284. .5 La. 46. Denis, Grailhe, and Soulé, contra.

   The judgment of the court was, pronounced by

Eustis, C. J.

This is an appeal taken by the residuary legatee of the late L. B. Macarty from a judgmentof the Fifth District Cuurt of New Orleans, by which a charge of $3,000 to each of two attorneys employed by the testamentary executors,- was allowed in .the latters’ account. There were two executors, and each employed his attorney. The appellant objects to the amount charged as unreasonable, and one which the succession is not bound in law to pay, and insists on its being reduced for each attorney to the sum of $1,000, which the executors have paid. A further sum of $2,000 was also paid after the opposition was filed, which of course can have no effect on the merits of this controversy.

The appellant relies for a reversal of the judgment on the case of Dorsey, 5 Mart. N. S. 401, and several cases cited which have been since passed upon by the Supreme Court. That of Dorsey is so analogous to the present in its leading features, that it may be well to state it. This is the opinion of the court.

Martin, J. The syndics being cited to show cause why they should not pay to the attorney of the insolvent #1,000 for his professional services in this case, as a privileged debt, out of any monies in their hands, denied that the sum was due. A gentleman of the bar deposed that, having seen and examined the proceedings, and taken into consideration the importance of the transaction and the trouble the attorney, must have been at, the whole having, as it appears, been managed by him, he thought an allowance of #1,500 for his services but reasonable. Two others deposed that, the sum claimed is, in their opinion, a moderate one, according to the amount claimed and allowed for similar services. The rule was made absolute, and the syndics appealed.

“ Their counsel argues in this court, that the allowance is extravagant. The attorney contends that, there is neither bill of exceptions, nor statement of facts, &c., that may enable this court to act on the merits of the case; and that there is nothing in the decision appealed from, contrary to law or evidence.

“ It does not appear to us that there is any substance in the first objection of the appellee, as the testimony appears to have been reduced to writing in court. His second, and that of the appellants, will be considered together. We have recognized the right of the attorney of a ceding debtor to a remuneration out of the ceded property, to be taxed by the court, for that portion of his services which is beneficial to the creditors. Morel v. Mezotiere’s syndics, 3 Mart. In that case, the legality of the demand was also contested; its quantum was not contested. It is not for all the services rendered by the attorney to the insolvent, his client, that the syndics are to be charged, but only for those from which they derived a benefit, as the filing of the petition for the cession, and the meeting of the creditors. If afterwards a contest arises, as it may, between the insolvent and the syndics, as when he claims, and they oppose, his discharge, the latter cannot be charged with the fees of their own attorney and that of the debtor’s, who acts in opposition to them. As the services to be thus compensated are rendered under the eye of the court, the taxation ought to be made on its own responsibility, which ought not to be shifted from the bench on the bar, as appears to have been done in this case, in which the decision is made on the opinion of the attornies, that the charge is moderate, and but reasonable.

“ In the present case, the appellee filed the petition, and obtained the order fon a meeting, at which he attended his client. Afterwards, none of the creditors making any opposition, he moved for, and obtained, the homologation of the proceedings of the meeting, and the discharge of the insolvent; and made the motion for, and obtained, the allowance complained of.

“ The measure of the reward of professional service, is the exertion of legal knowledge, the responsibility incurred, and the labor bestowed.

“ Few, indeed, are the cases in which an attorney has less legal knowledge to exert, or labor to bestow, than in an application fora meeting of creditors. Indeed, a blank petition would answer in every case, and require only the filling up the blanks for names, places, and dates. The amount of property or debts, active and passive, however great, does not render the responsibility incurred greater. A suit on a plain note of band, demands more exertion of legal knowledge, and imposes a greater responsibility. It would not be, therefore, easy for a judge, even if the opinion of witnesses \yas to relieve him from responsibility, to come to the conclusion of the first witness, that $1500 would be but a moderate compensation for the appellee’s services. In this State, the services of law officers are as liberally estimated, perhaps more so, than in any other in the Union; yet, till very lately, this sum was deemed a fair annual compensation of the attorney-general, and some of the district judges.

“ A prosecution of the lightest misdemeanor demands from the attorney-general the exertion of more legal knowledge, and imposes more labor and responsibility, and consumes more time, than all the services of the attorney of an insolvent, for which the creditors are to be taxed. Yet, except in the first appointment of an attorney-general of the State, (of whom it does not behove the member of this court, who has now the honor of being its organ, to speak,) gentlemen of great merit have easily been found to fill the office; no one ever refused it, or resigned it, except on a call to another and more dignified office. Vastly different, indeed, must be the measure of compensation in the legislative and judicial departments ef this State, if the sum which is deemed by the former a fair compensation for the attention of the attorney-general to all State prosecutions, and to the call of all State officers for opinions, during one year, and for the services of a district judge during the same period, be considered by the latter, as but reasonable for the services now under consideration.

“ The two other witnesses consider the demand as reasonable, according to what is claimed and allowed in similar cases. Now the allowances referred to by the gentlemen, are those made by inferior judges. When the present allowance is complained of on the score of extravagance, the appellate court cannot sanction itbecause decisions, equally erroneous, have taken place before, by judges a quibus. The judge ad quern cannot take the opinion of the one a quo, for his rule of decision. ,

“ Leaving aside the opinion of witnesses, the judge below ought to have acted on his own responsibility, as in the case of taxing the services of referees, or the attorney of absent creditors. In the latter case, however, which is a parallel one to the present, the legislature has not left the creditors absolutely at the discretion of the judge. It has fixed the maximum of the compensation they may be taxed for. The remuneration of this gentleman is contingent, for it is payable out of a special fund alone; the part of the ceded estate coming to the absent creditors. It cannot, in any case, exceed two-and-a-half per cent, and is to be reduced to $250, if this per centage exceed that sum. Act cf 1817. Now it is not doing any injustice to the appellee to consider his and that case parallel ones. The services of the attorney of the absent creditors, demand the exertion of more legal knowledge, more labor, and impose a greater responsibility, than those for which the appellee may claim compensation. The absent- creditors are to be informed of the failure ; the claim of any of them, if greater than admitted by the insolvent, must be supported; that of any present creditor must be examined, and, if excessive, attempted to be reduced ; and the conduct of the syndics is most to be watched.

“ As, in algebra, unknown numbers must be sought by comparison of known ones, so, in law, the just decision, in cases in which the legislator is silent, must be sought in an analogy with those in which he has spoken. Thus, in taxing professional services, in cases of insolvency, when the will of the legislator is expressed on any occasion, it cannot be disregarded in a similar or analogous one. After taxing, according to the statute, the services of the attorney of the absent creditors at $250, or less, a court cannot well tax those of the attorney of the insolvent, evidently requiring less exertion of legal knowledge, less labor, and imposing less responsibility, at $1000; the four-fold of the maximum. The The administration of justice in this State, has laid under some opprobrium as to the dilapidation and waste, by law charges, of the estates of the deceased and insolvent, and this tribunal ought not to refuse its interference, when, in a particular case, it is sought for relief of the injured. When, in prescribing the mode of administering those estates, the legislature strongly recommends moderation and economy, the courts ought not to run into the opposite extremes of profusion and waste. We think the District Court erred. It is, therefore, decreed that, the syndics pay the appellee out of any funds in their hands $250, with costs below, and that he pay the costs of this appeal.*’

Afterwards judge Bullard, in delivering the opinion of the coUrt in the case of Stein v. Bowman, 9 La. 284, uses this language: “ It has long been a subject of just reproach that extravagant allowances are made to counsel in relation to the administration of estates. It is an abuse which can only be corrected by courts adhering inflexibly to the rule, to graduate the fee by the value of the services rendered.”

In the different cases we have had before Us, in which we were called upon to apply the 71st article of the constitution, which prohibits courts from making any allowance by way of fee or compensation in any suit or proceeding, except for the payment of such fees to ministerial officers as may be established by law, we have held that provision as not affecting the right of an attorney and counsellor to recover the value of his services in an action, or in any other legal mode in which the parties may present the Claim for adjudication. Where a tableau of distribution proposed an allowance to counsel out of the funds to be distributed, we considered the form as objectionable; but the right to compensation for professional services rendered at the instance of the proper representative of creditors, or of a succession, has never been questioned. In the case of Holland, 1 An. 224, we said: “ The sums proposed in the tableau to be allowed to the attorney of the estate and the attorney for the absent heirs, have been opposed. We have lately held that,since theadoption of the present constitution, courts are without authority to make allowances by way of fee or compensation, except for the payment of such fees to ministerial officers as may be established by law.

“ Where an administrator needs the aid of counsel he may legally pay for those services, as for those of any other necessary agent. The propriety of such disbursements will, however, be subject to revision; and, like every other payment made on account of the succession, is liable to be questioned by the creditors, or others interested in enforcing a prudent and economicaal dministration of the funds confided to his charge.”

Two gentlemen of the bar have been examined as witnesses, who consider the charge of $3,000 to each of the attornies as reasonable, inasmuch as for this fee they were to superintend pre-existing suits of the deceased, and those which might incidentally occur, and were bound to give their professional services till the winding up of the affairs of the succession. In relation to the professional'services attending the proceedings of the succession, the opinion of those gentlemen was founded on an examination of those proceedings, as they are presented by the record. The suits referred to in the testimony of the Witnesses are not before us, With one exception, and the record affords ufi nti means of affixing any value to the professional services which this succession may require ; and our duty is confined to determining the value of the services of the attornies, as they have been placed before us. A record of the case of Delassus v. The Executors of Macarly, is in evidence; and professional services were rendered at bar, by the gentlemen whose fees are the subject of this litigation in the case of an application for a prohibition. These two cases, and the conducting the mortuary proceedings, are those ftir which the succession are bound to pay counsel and attorney’s fees.

It appears that each of the executors selected his own lawyer, and a contract was made for $3,000 each. It was understood that this fee was to be for the full compensation of the attornies in conducting and finally winding up the succession, should there be any suits or not; and that the attornies were to superintend personally the suits pending for and against the deceased.

It will be understood that we are not called upon to impugn the reasonableness of such a contract. That rbsts exclusively with lliosFwho'made it, and it may be binding between the parties personally, and still not constitute a charge on the succession. Executors receive commissions, and in this case their compensation amounted to a large sum. If they choose to perform no duties, but to devolve the w'hole labor and responsibility of the administration upon attornies, We know of no l'eason why they should not pay thtim. But their neglect or choice creates no charge on the succession. We have to determine the value of the professional services for which the succession is bound, on the facts .before us. If the gentlemen have been retained in’ any suits left undetermined by the deceased, we see no reason Why the succession should not pay them for their professional services; and it is to be understood that our adjudication relates only to the matters before us, to wit; the services up to the vendition of this judgment.- The executors had a right to retain counsel to superintend suits; but we have no means of ascertaining the value of those services, and presume none of any consequence have been rendered up to the present time. As the matter is not fully before us, we will not, however, preclude the executors from hereafter establishing against the succession their claim for any amount lawfully paid for that purpose.

The contract to which we have alluded, we do not censider as in evidence, but have given our views in relation to its effect, waiving the question of its admissibility, which is received under a bill of exceptions taken by the appellant.

The responsibility of determining the amount of fees for professional services is a matter of great delicacy ; and under the rules on which our predecessors and the profession have acted for years, a court in fixing them in a case of this kind must be guided by a conscientious estimate of their value. The services in the mortuary proceedings were mere matters of routine, requiring only ordinary professional skill, and no great labor. The argument on the application of Mrs. Lalauric for a prohibition, was before this court, and the case of Eelassus required little labor or time from the counsel of the executor. We do not feel ourselves authorized to increase the amount which the residuary legatee has been willing to allow the executors for counsel and attornies’ fees. The judgment appealed from must, therefore, be reversed, and limited to the amount paid by the executors, $1,000, to each attorney.

It is’ therefore, ordered that, the judgment of the court below be annulled and reversed ; and it is further ordered that, the provisional account and tableau of distribution filed by the testamentary executors of L. B. Macarty, on the 8lh °f November, 1847, be amended, by allowing to each of the counsel of said executors the sum of $1,000 instead of the sum of $3,000, for professional services rendered to the estate of L. B. Macarty up to the rendition of this judgment. It is further ordered that any claim which the said executors may have against the estate on account of payments lawfully made by them to their counsel, for superintending suits against their testator pending and unfinished at the time of his death, be reserved ; and that the appellees pay the costs of this suit in both courts.


text:
    Deschapelles et al. v. Labarre.
    A confirmation by the heirs of the donor of a donation void for matters of form, will preclude them from subsequently opposing such vices of form. C. C. 3254.
    The tutrix and co-tutor of a minor, to whom a donation had been made void in form, but which was subsequently ratified by the heirs of the donor, cannot, by consenting to a restitution of its value, alienate what had Become the property of the minor.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J. The facts of this case are' stated in the opinion of the lower court, as follows:
    “ By article 2254 of the Civil Code a donation void in form may be confirmed and ratified by the heirs of the donor: and such confirmation and ratification will preclude them from pleading, thereafter, the vices of form in the donation.
    “ On the 28th February, 1811, the common ancestor of plaintiffs and defendant, made to his son, the ancestor of defendant, a donation inter vivos, en avancemcnt d’hóirie, of the property mentioned in the petition,- estimated in said petition at $1000. This donation, being, by private act, was defective in form. The donor and donee both died in the year 1814. The heirs of the donor entered into a partnership, of which the accounts were kept in a book offered in evidence by plaintiffs. From this book it appears that, the step-father of the defendant, F. Fazende, paid to the heirs of the donor, in the year 1816. the estimated value of the property donated as above, to-wit : $1000. This collation is approved by the signature of ail the heirs to the account. Afterwards, in the year 1822, the step-father of the defendant, F. Fazende, deemed it expedient to require, at the hands of the other heirs of the donor, the re-payment of the sum of $1000, paid by Fazende six years before to those heirs, upon-the ground that the donation had been pronounced null by a lawyer consulted-on that subject; and the money was accordingly refunded by those heirs, tho present plaintiffs. From 1822 to 1846, the date of the institution of this suit, the plaintiffs do not seem to have made any claim- to the property; but, on tho contrary, have recognized, by witnessing defendant’s marriage contract, the-right of defendant to the ownership of said property.
    Various questions of prescription, and of possession, as connected therewith, have been raised, which I consider it unnecessary to examine. The collation.of the value of the land conveyed by the informal donation — a collation - made in accordance with the views of the donor, and accepted by his heirs after his death, was a confirmation of the donation, which involved, in the words of the Code, the renunciation by those heirs of all right to object to the form of the donation. Tho title of the heirs of the donee to the property donated wae rendered perfect by confirmation, in 1816. The tutrix of the heirs of the donee, and her second husband and co-tutor, were totally incompetent to-alienate the property of their wards, by consenting to a restilution of the value of the property, in 1822. That act was nu’il as to the minors D'Orgenoy, produced no legal effect against them, and, if we may judge by the subsequent acts of the parties, it is doubtful whether ever they supposed that it produced .any legal effect. This action must, therefore, fail.
    “Butthe counsel of plaintiffs have urged upon me the propriety of allowing them the sum of §1000, in case I should come to the conclusion that they could not recover the land; for, say they, it would be unjust that the defendant should have both the land and its price. There is no proof before us that this sum of §1000 overcame into the hands of the defendant. Were theie such proof on the record, I should agree with the counsel. But the record shows only a payment made to the tutrix and co-tutor of the defendant, her mother and stepfather, That payment was improperly made, and without legal consideration. Those who received it, or their representatives, should make restitution. But I cannot adsume, without proof, that this payment has inured, in whole or in part, to the benefit of the defendant. Judgment for defendant, with costs.”
    From this judgment the plaintiff appealed.

      Roman and Seghers', for the appellants.

      Denis and Labarre, for the defendant.
   The judgment of the court was pronounced by

Kino, J.

For the reasons assigned by the judge of the District Court, th® judgment is affirmed, with costs..


text:
    Ryder v. Frost.
    Plaintiff, a resident of Illinois, who had bound himself to defendant to settle a judgment obtained against a partnership of which they had been the members, wrote to defendant in New Orleans, that their-oreditor had consented to compromise his claim by taking a certain snm as payment in full, stating his willingness,to pay-one .half of that sum .but his inability to do more, and advising defendant to contributo the balance in order to relieve himself from .the debt. On the 20th of September, .defendant wrote .to plaintiff that he would pay one-fourth of the sum for the purpose of settling the debt, as soon as the judgment should be entered as satisfied on the records of the court by which it was pro uiouuced. Negotiations with the creditor were terminated, and the judgment was can. celled, on the 10th of November, and this suit commenoed on the 1st August following. Held, that the proposition made by defendant being beneficial -to plaintiff, his assent may be inferred (C. C. 1796, 1798, 1805), and that the former not having required an immediate reply, plaintiff’s answer was within a reasonable time; and that notice of plaintiff’s assent, though not given to defendant until the institution of suit, the latter having sus^ tained no injury in consequence, is sufficient. The proposal in defendant’s letter .cannot be .considered void for want-of consideration.
    APPEAL from the Fourth District Court of New .Orleans, Straivbridge, J.

      T. R. Wolfe, for tile appellant.

      Randall, for the defendant,
    contended that there was no valid contract between the parties. C. C. 1791 to 1803. 6 La. 208. Johnson v. Fessler, 7 Watts 48. Chitty on Contracts (Am. ed.. 1842), pp. 9, 10, notes 1, 2; p. 14, note 1. There was no consideration for defendant’s promise. Pothier. Obi. vol. 1, p. 46. The amount was to be paid to plaintiff, after he had paid the judgment creditors. Plaintiff was already 1 egally bound to pay the debt; and defendant was under no moral obligation to contribute, ns between plaintiff and himself, any thing towards the settlement of the debt.
   The judgment of the court.was pronounced by

Slidell, J.

This suit is brought to recover $500, under the following circumstances. Ryder 4- Frost were commercial partners at Alton, Illinois. They failed in business. After the dissolution, Ryder, in 1841, undertook to settle the affairs of the concern; took the assets, and gave Frost a bond of indemnity to hold him harmless against all the partnership debts. Amongst other debts, the firm owed J. 8fR. Leavitt, of New York, a judgment debt of about $0,000. This debt had been compromised by Frost with their creditors, in 1839: but, in June of that year, they gave Frost S¡- Ryder notice that they would attack the compromise for fraud. In 1843, a suit in chancery was instituted to that end, which resulted, in 18.45, in a decree in favor of the Leavitts, reinstating their judgment.

Matters thus stood till the fall of 1845, when the Leavitts proposed to Ryder to compromise the $6,000 debt, by taking $2,000 in cash. Ryder then wrote to Frost, stating his sickness, inability, the desirableness of the compromise, &c.; and, after stating the disposition of the Leavitts to compromise, saying : •“ Now the object of this is to ask you that in case I make the settlement, whether you are willing to pay any part of this, or not. I will try to stand up to $1,000 and the costs, if you will stand the other $1,000. As the niatter lays I think you ouglit to do it, and no doubt it will be for your interest to do it. You will not feel it like J do. If I can close this matter in this way, the next thing I shall do is, to try to settle with the bank. I probably shall have to give up my house and store to them for my debt; and then there is Miller's apd Haivkinson’s debt, neither of which has been settled for. I am determined to get clear .of debt the next year, if I possibly can, if it takes every thing I possess. If I can do that, I .can do some business somehow or other, and probably could give you commissions enough, in a few years, to remunerate your outlay for the settlements, which, without the settlement, I never can do. If you are not willing to do any thing, I shall have to let it take its chance; then I shall give up business entirely. I would be glad to hear from you on this subject as soon as convenient, as I wish to conclude the business as early as possible.”

In answer to this letter, Frost wrote as follows:

“ New Orleans, September 20, 1845.

•“ Simeon Ryder, Esq., Alton, Illinois.

Fear Sir : Your favor, under date 8th September, was received yesterday by tnail, and .contents duly noted. Am truly sprry to hear of your long end severe sickness, and so poor account of your business at Alton, I hope, ere this reaches you, that you will have so far recovered as to be enabled to .attend to business, as you were wont to do.

“ In relation to proposal for settlement .of Leavitts' claims, you know full Well my feelings about lilis matter. I have said I never would, from principle, pay a farthing towards the adjustment of their unjust demand. As for interest, 1 have none ip the caso. I care not for them, or any one else, I am independent — no family, but strong friends, thank God — and I am confident that I could .conduct business here for years with th,at unjust execution over my head, without injury to my credit or standing. One thing I am certain of, they could never make a dojjar upon it; and my friends here wopld support me in my .decision. So much for so mutch; hut now to the point, I will not give $1,000 towards this settlement; but, in view of your trouble and sickness, and upon ffee grounds of friendship, growing out of ony business particularly, I will givp you $500 to aid you in the liquidation of the demand ; the money to be paid as soon as the settlement is completed and duly erased from court documents and records. My partner is now in St. Louis. I have written to him to return home as it is entirely healthy. No yellow fever this season thus far. As soon as he returns, I shall pay you a visit; and then I will be prepared to check, if you desire.”

It must be borne in mind throughout the investigation of this case that, the proposition made by Frost was clearly beneficial to Ryder. Without it, Ryder had no recourse at all against Frost. He was bound, under the indemnity, to pay the whole debt, without any .contribution whatever from Frost. If he rejected Frost’s propositions, the whole burden was on his own shoulders. There is nothing in the letter of Frost intimating his desire to have an immediate answer, and making it a requisite to being held to his offer. On the contrary, the terms of the letter indicate a disposition to afford Ryder a reasonable time to accomplish the desired object, and imply a continuance of the offer for a reasonable time. That proposition was also made in such terms as evinced,in the language of our Code, a design to give the other party the right of concluding the contract by his .assent, In such a case, the parly proposing is bound by his proposition, if the assent be given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the proposer to allow. Civil Code, 1796. See also art. 1798. It seems, therefore, that there are only two points which we have to enquire into. First, was there an assent by Ryder to Frost’s proposition, within a reasonable time? Secondly, was it indispensable that earlier notice ef acceptapce should have been given ?

It is not indispensable that the consent should be express. Civil Code, art. 1805. It may be implied. An implied consent may be manifested by actions. Ib. Here Ryder unequivocally manifested,his consent. The letter of Frost was written on the 20th September, 1845. On the 10th November, 1845, the negotiations, which had been in progress during some time previous, are consummated. The object which Frost desired, and-for the .accomplishment of which he was willing to pay $500, was the satisfaction and cancellation of the Leavitt judgment; and this was promptly done. There being, therefore, a proposition and an assent, the obligation was complete. There was an aggregate mentium. For it is not true to say, at least in all cases, that there must not only be an acceptance of the proposition, but a knowledge of the acceptance by the proposer. The authority of the Code is dear to this point. “ If the party making the offer die before it is accepted, or hb to whom it is made die before he has given his assent, the representatives of neither party are bound, nor can they bind the survivor. But, if the contract be accepted before the death of the party offering it, although he had no notice of it, the obligation is complete.” Suppose A., living at the time in the city, and having a country seat at a distance, writes to B., who has an estate near his country seat, that “ the large tree, at such a point on your farm, obstructs my prospect. Cut it down, and I will pay you $50.” B., without further correspondence, cuts it down. Will any one say that there was not here an aggregate mentium — a complete contract ? Clearly there was, and A. would be compelled to pay the money. See also the very able opinion of Marey, J., in Mactier v.Frith, 6 Wendell, 111.

Next, was it indispensable, in the present case, that Frost should have had .earlier notice? We will suppose his letter was receiyed on the 1st October, 1845, The compromize was effected on the 10th November, 1845. The answer in this cause would seem to imply in its terms an acknowledgment that, Frost knew what Ryder had done before the institution of this suit. But take it that the suit was the first notice — that is, 1st August, 1846. Now what possible injury has Frost sustained by the delay? None whatever. There are many cases which will readily suggest themselves to the mind, where prompt notice of the acceptance of the proposition may be of serious importance to the proposer. But, even in such cases, the notice does not seem essential to the aggregatio mentium — the completeness of the obligation; but rather as pertaining to the question of its future binding force, which may be impaired, or even completely discharged, by the laches of the acceptor. It will be observed also in the present case that, there was no express requisition in the letter that Ryder should accept the proposition, or notify such acceptance, within a given time. See also Civil Code, art. 1798.

In conclusion, we believe the view we have taken of this case does not conflict with the Code, and that it is the practical one, resting on the reasonable expectations and intentions of the parties.

The charge of fraud against Ryder does not appear to us to be sustained by the evidence, nor do we think the promise contained in the letter void for want of consideration.

Judgment reversed, and judgment for plaintiff against defendant, for $500, ,and costs in both courts.


author: Rost, J. Slidell, J. Rost, J.,

text:
    De Armas v. De Armas et al.
    The rule in regard to other prescriptions, that an interruption dates only from the time of its being brought home to the parties affected by it, applies to questions arising under the slat, of 27 March, 1835, allowing married women to retract, within forty days from its promulgation, certain renunciations of their legal rights.
    Laws of prescription, and those limiting the time within which actions may he brought, are retrospective in their operation.
    APPEAL APPEAL from the Third District Court of New Orleans, Maurian, J. The facts out of which the questions of law in this case arise, are stated in the opinions infra.

      Budd and Redmond, for the appellant.
    The judgment appealed from is void for want of a statement of the reasons on which it is founded. The stat. of 27 March, 1835, is unconstitutional, so far as it purports to be retrospective. No notification is required by that act of the intention to retract a renunciation of legal rights.

      Lockett, for the defendants.
   The opinion of the court was pronounced by

Rost, J.

The sole question in this case is, whether the plaintiff retracted a renunciation of her legal rights, made by her in a sale of immovable property effected by her husband, within forty days of the promulgation of the act of the 27th of March, 1835, establishing that limitation for all such renunciations. The act was promulgated on the 10th of April, 1835, and became obligatory on the 11th. Bullard & C.’s Dig. p. 541. The citation, and copy of the petition containing the retraction, were served on the defendants, on the 21st May following. The forty days elapsed on the 20th, and the limitation attaches.

In calculating " the forty days following the promulgation of the statute oí 27 March, 1835,” restricting to that period the right of married women to retract the renunciations of any legal rights made by them injthe sale of immovables, the day on which the act was promulgated, or that on which the term commenced — the day a quo,'must be excluded; the day ad quern, or that on which the term expired,being included.' Thus in computing the forty days under that act, which was published in the official gazette on the 10th April, and was promulgated at the seat of government, the day after (Stat.-24 March, 1827, s. 1), the period must commence with the 12th of April; and a notice of retraction by a married woman served on the 21st May, is in time.

Budd and Redmond, for a re-bearing,

urged that the statute approved March 27, 1835, published the 10th of April following, was not promulgated till the 11th of that month. The statute restricts the right of retraction to the “ forty days which will follow its promulgation.” The promulgation having occurred on the 11th of April, the plaintiff’s citation and petition, served on the 21st day of May, 1835, were intime, that day being tha fortieth which followed after the promulgation. The 1st section of the act of March 24, 1827, Bd. & C.’s D. p. 541, declares that, ” all the laws enacted by the legislature of this State, shall be considered promulgated -at the place where the seat of government is located, the day after the publication of such laws in the gazette authorized to publish the laws of this State, and in all other parts' of this State thirty days after the publication in said gazette.”

R. Hunt and Lockett, contrá.

It is admitted jthat'the act of 27 March, 1835, was published in the official gazette on the 10th day of April, 1835. It follows that, the act must be considered promulgated on the lith day of April, 1835. If on the 11th of April, the day after its publication, it was considered promulgated, there can be'no doubt that the law was in force on that day.

According to the englishlaw, and the law of the several States of the Union, it is now the settled' rule that, a statute, when duly made, takes effect from its date, when no time is fixed. Louisiana' has adopted the more jnstand reasonable rule that, the statutes shall not take effect until they are duly promulgated; but when once promulgated, they must be immediately executed. The Civil Code, art. 5, provides : “ The laws shall be executed through every part of this State, from the moment they shall be promulgated in the manner prescribed ” — du moment ou la promulgation en aura, été faite. It seems plain' then that, the act of 27 March, 1835, which, on the 11th day of April, 1835, was considered promulgated, was inforce on that day. A violation, on the 11th of April, of a penal law, published on the 10th of April, in the official gazette, attheseatof government, would clearly be punishable under that law; for every law must be executed from the moment of its promulgation. The moment means the very instant; it is the most'minute and indivisible portion of time.

The law recognizes no fraction of a day. A man born on the 1st day of January, is of age to do any legal aot on the morning of the last day of December ; i. e. the day preceding the twenty-first anniversary of his birth. 1 Bl. Com. 463. Salk. 44, 625. Bacon’s Abr. Title “ Infancy and Age.” Ld. Raymond, 281, 480. Where a time is appointed for doing an act, it must be done at that time. If a man bind himself to do a particular thing, if requested, he is not compelled to do it unless the request be made at the appointed time. So, in Fitzhugh v. Dennison, where it was stipulated that, at the end of seven years, the defendant, if 2-equested. should cause J. D. to be made free of the company of Joiners in London, the Chief-Justice said : “ The end of seven years is the last day of the seven years, for there is no fraction of a day, and after 12 o’clock at night is after the seven years, for the day is not the end of the seven years, but post expiratíonem. For tire beginning and end of a thing are parts of a thing. So, if a man wer-e born on the 1st February, and lived to the 31st January, twenty-one years after, and makes his will on that day, and after-wards dies, the will is good and the devisor of age.” 2 Lord Raymond, 1006.

We concur with the former court that, in this, as in other prescriptions, the interruption takes date only from the time it is brought home to the parties affected by it. Landry v. Segond, 15 La. 156. Laws of prescription, and those limiting the time within which actions may be brought, are retrospective in their operation. Third Municipality v. Ursuline Nuns, 2 An. 611.

The judgment purports to be rendered against tjie plaintiff on the ground of prescription. It cannot be considered as destitute of reasons.

Judgment affirmed.

Same Case — On a Re-mearing.

There being then no fraction of a day in law, and the statute of 27th March, 1835, having been promulgated and putin force and effect on the 11th day of April, 1835, that day must be included in the computation of the forty days following the promulgation of the act. And if the 11th day of April, 1835, on which the law wentinto effect, be so included, the forty days contemplated by the statute, ended on the 20lh day of May, 1835, at 12 o’clock at night. The 21st day of May was not the end of the forty days, but post expirationem ; for the beginning and end of the forty days, are part of the forty days.

The petition and citation in this case were served on 21st May, 1835. The notice was, therefore, given after the expiration of the term prescribed by law.

Iu Landry v. Segoncl, 15 La. 157, it was held that a wife cannot, under the act of 1835, retract her renunciation without notifying the party in whose favor the original act of i-enunciation was made. That, whenever apparent r-ights exist, and paitieularly such rights as may become valid and executoi-y after Ibe lapse of time, they cannot be destroyed by the act of one of the parties, without giving notice to the other party of the fact tending to destroy those rights; that, if this was not the case, a creditor might transfer his rights in good faith to others, and the law might be made a source of litigation. The court, at the same time, intimate that- nothing, in the law of 1835, seems to require that llie notice should be given by a suit. Inde'ed, it may well be doubted whether the plaintiff would have pursued a proper course, even if she had instituted her suit within the forty days presci-ibed by the statute. The property involved in the present case, is situated in Iberville; the suit is instituted against the defendants in New Orleans. Now, suppose the defendants had sold this property after the 21st April, 1835, to third persons, who had the title thereto carefully examined, and, finding no trace oí any retraction of the 2-enunciation in the office of the notary, where the renunciation was made, and no notice in relation to it in any other public office connected with 2-eal estate, had, bond fide, paid a full price for the property, without any knowledge of the pendency of this suit; would not this suit, if considered due notice, and a retraction of plaintiff’s renunciation, operate as a fraud on such innocent third pe2-sons, and give 2-ise to that vei-y litigation and insecurity of title, which the law of 1835 intended to guard agaiust ?

The opinion of a majority of the court was pi-onounced by

Slidell, J.

In my opinion the service of citation Was in time.

“ The time required for prescription is reckoned by days, and not by hours ;■ it is only acquired after the last day allowed by law has elapsed.” C. C. 343(L

Thus, the day ad quern, is included ; but as the article is silent as regards the' day a quo, we must look to jurisprudence for an answer whether it is to be included or excluded. Whatever difficulty may have existed on this subject in> the roman jurisprudence, it seems well settled in France, that the day a quo is not included. Troplong, Pres. v. 2, no. 812, gives the following illustration: Ainsi done, supposons qu’une obligation ait été consentie le 31 mars 1804; la prescription prenant son point d-e depart le 1 avril, sera aequise le 31 mars 1834 á minuit, et le Iendemain ler avril, aucune inten-uption ne sera pas admissible.”' Rogron commenting on articles 2260 and 2261 of Napoleon Code, which correspond to the article of our Code above cited, gives the following illustration : “ Ainsi j’ai acholó Ie ler novembre 1824, á midi, un foods d’une personne qui n’en est pas propriétaire ; je ne l’aurai proscritpar dix ans que le ler uovombre 1834, a. minuit. En <3’Mitres termes le jour a qao, c’est-Mdire celui ou íe terme commenee, n’est pas compris, mais le jour ad quem, c'est-á-dire celui ou le terme expire y estcompris. Dali. An. 1836, II. 164. See also Troplong, Hypotheques, vol. 1, § 293, where he comments npon article 2109 of the Napoléon Code, requiring the co-heir, in case of partition, to inscribe his petition in sixty days, “ á dater de l’acte de partage.”

Besides, the language of this statute is peculiar: “Shall have the right of retracting the said renunciations during only the forty days which will follow the promulgation of the present act” — “dans les quarante jours qui suiveront la promulgation.” The day of promulgation cannot be said to follow itself, and the natural construction of the words, -independent of the general jurisprudence as to prescription, seems to me to require the exclusion of the day of promulgation.

I think this view is also strongly justified by the analogy of our positive legislation in matters of contract. The Code, in article 2053, declares that: “ When the contract is to do the act in a certain number of days, or in a certain number of days after the date of the contract, the'day of the contract is not included in the number of days to be counted, and the obligor has until sun-set of the last day of the number mentioned, for the performance of his contract.”

I am, therefore, of opinion that, the plea of prescription should be overruled.

It is, therefore, decreed that, the judgment of the court below be reversed, that the plea of prescription be overruled, and that this cause be remanded, with leave to defendants to answer in the cause, and for further proceedings according to law; the defendants paying the costs of this appeal.

Eustis, C. J. and Kins, J., concurred in the foregoing opinion.

Rost, J.,

dissenting. It is true, as stated by the plaintiff’s counsel, that the act of the 25th March, 1835, was not promulgated on the 10th April, next following. It was only published on that day in the official paper.

The 1st section of the act approved on the 24th March, 1827, provides that all laws enacted by the legislature of this State shall be considered promulgated at the place where the seat of government is located, the day after the publication of such laws in-the gazette authorized to publish the laws of the State. As soon as- the 10th day of April expired, the act under consideration was promulgated and in force, and had it been a penal statute, any offence against it after that instant of time would have been punishble under it. The act was in force on the 11th of April, and that day must be included in the computation of the forty days following the promulgation.

The argument of counsel assumes that married women have the right of retracting their renunciations during the forty days which will follow the day of the promulgation of the act. But the statute says that, the forty days shall run from its promulgation, and we have shown that it was promulgated at the instant that the 11th of April commenced.

It is therefore my opinion, that the judgment heretofore rendered in this case, should remain undisturbed. ,