text:
    No. 7165.
    Mrs. F. Roberts, Wife, etc. vs. F. A. Zansler.
    The Fifth District Court for the Parish of Orleans had jurisdiction under Acts 859 of 1858 and 175 of 1859, regulating the collection by judicial process of taxes due the City of New Orleans, over all amounts even less than fifty dollars.
    Where a judgment of taxes is rendered in broader terms than would have been an order for executory process, and a writ of seizure and sale issues under it against the property owing the tax, there is no cause of complaint.
    It is immaterial whether in such cases a curator ad hoc be appointed before or after such judgment was rendered. The subsequent proceedings having been conducted contradictorily with him, and the plaintiff not having shown that she was not absent, she cannot eomplain.
    Where a sheriiFs return shows that the property was seized and it is uncontradicted, it will constitute proof.
    It is not necessary in tax cases to make the husband a party to the suit, or to notify him of the proceedings in it. A married woman can be sued and stand alone in court in such cases.
    Irregularities and defects growing out of any judicial or tax sale are as well cured by the lapse of five years, as by a judgment in a monition proceeding, and minors, married women and interdicted persons are concluded thereby.
    APPEAL from the Third District Court for the Parish of Orleans. Monroe, J.

      Jos. JP. Hornor, Wm. S. Benedict and P. W. Baloer, for Plaintiff and Appellant:
    1. The Fifth District Court of New Orleans, under tlie Constitution of 1852, had no jurisdiction over any suit where the amount involved was less than fifty dollars. Constitution of 1852, Titled, Art. 61; Act No. 181 of 1853 ; Constitution of 1845, Secs. 75, 78; Act No. 43 of 1846; Act 229 of 1853; Act 255 of 1855; Act 344 of 1855; Revised Statutes 1856, Sec. 27, p. 280; Act No. 345 of 1855,
    2. Act No. 85 of 1858 didnot change or extend the jurisdiction of the District Gourtsof New Orleans.
    3. Act No. 175 of 1859 did not change or extend the jurisdiction of the District Courts of New Orleans.
    4. If Act No. 175 of 1859 was intended to change the jurisdiction of the District Courts of New Orleans, it was in that respect unconstitutional, as it did not express any such object in its title. Constitution of 1852, Sec. 115; 23 An. 720.
    5. In October, 1860, there was no law in force authorizing the issuance of a writ of seizure and sale, for city taxes. Act No. 175 of 1859.
    8. To sustain the plea of prescription of ten years, acquirendi causa, there must concur good faith and a just title. C. C. 3474, 3478, 3479, 3484, 3485, 3486.
    7. A just title is one that furnishes evidence that all formalities required by law have been complied with. 10 La. 2 85; 3 An. 8; 8 M. 629,- 6 N. S. 462; 7 M. 406.
    8. When a title is based upon a sale under execution, the production of the judgment is necessary to establish its regularity. 3 La. 212.
    "9. One who claims property sold under an execution must produce a valid judgment of a court having jurisdiction of the matter in dispute. Allen vs. Preston, 4 La. 121 $ 13 An. 450; 8 A. 138; 2 An. 509 ; 9 An. 552; 6 R. 192; 10 M. 610, 16 La. 433-442.
    10. To support a sale by a sheriff, there must be a valid judgment of a competent court, otherwise the title is not divested. 6 R. 192; 10 M. 610.

      31. A sale made by an order of a Court without authority to give the order is utterly void, and prescription %oill not run in its favor. Burns vs. Van Loan, 29 An. 560 ; 4 P. 26, 203 ; 14 An. 598; 13 A. 198 > 2 R. 466 ? 9 La. 531; 18 La. 526; 19 La. 306 ; 17 La. 40.
    32, Where real estate is seized in the Parish, of Orleans, such seizure must be recorded in the mortgage office. If not so recorded, the seizure is illegal and insufficient, and an adjudication thereunder will convey no title. Cronan vs. Cochran, 27 A. 120.
    33, A married woman cannot appear in court without the authority of her husband or of the court. C, C. 121-324, and authorities.
    34, A judgment rendered in the absence of the parties, either in person or by attorney, and in the absence of citation or the party, his agent, or a curator, if an absentee, is void.
    35. One claiming title to property sold for taxes must show a valid and legal assessment, in addition to the other requisites necessary to sustain a judicial sale. 25 A. 503 ; 30 An. 871; 29 An. 507; 33 An., not reported.
    36. In tax sales, every formality must be strictly complied with, under penalty of nullity. 3 An. 540; 4La 207; GIST, S. 349 ; 30 An- 324; 15 An. 151; 19 An. 184; 6 An. 542; 8 An. 19; 10 An. 193; 11 An. 87; 8 An. 198; 7 An 50; 9 An. 550; 32 An. 704, 912, 925.

      Henry G. Dibble, for Defendant and Appellee.

      Hennarcl, Howe & Prentiss, on the same side.

      G. P. Buck, City Attorney, for the City of New Orleans, called in Warranty.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action. The plaintiff claims to have acquired, in 1854, the city lot, valued at $2,000, described in her petition. She alleges that she has never parted with it; that ibis in the possession of defendant, who asserts title of ownership to it, under a pretended purchase which has no validity, and she prays for judgment.

The defendant pleads the general issue, avers acquisition in 1809, from one Roder, whom he calls in warranty; Roder claims under a sale to him in 1867, made by Watson, whose executrix and heirs called to defend the suit, set up ownership, by reason of an adjudication made in 1860, in the suit of the City of New Orleans vs. Georgiana Roberts, before the Fifth District Court for the Parish of Orleans, called in warranty. The city avers the regularity, validity and binding effect of the proceedings for expropriation.

The defendant and Ms warrantors plead the prescriptions of five and ten years.

There was judgment sustaining the defense of prescription, and the plaintiff has appealed.

She asbs the reversal of the jrtdgment on four grounds :

1. The Fifth District Court was without jurisdiction, rations materice.

2. There was no law authorizing the writ of seizure and sale, and there was no legal seizure.

3. . She never was properly before the court.

4. No legal assessment was shown.

i.

The suit to which reference is made, was one in which the City of New Orleans claimed in 1860, by petition, forty-five dollars, ($45,) from the defendant therein, as the City tax due on the very real estate in dispute. On the same day, 10th of October, on motion of the Assistant City Attorney, the defendant being absent, the court appointed a curator ad hoe to protect her interest, and rendered the decree prayed for, directing that a writ of seizure and sale issue, that the property be sold and the proceeds applied to the payment of the tax, with an ■exclusive privilege. The writ issued, the property was advertised and adjudicated.

The Fifth District Court had jurisdiction over the subject matter and could, therefore, make the orders, render the judgment, issue and execute the writ to enforce it.

By the Constitution of 1852, which was in force in 1860, when the suit was brought and the sale took place, it was provided that the judicial power of the State would be vested in a Supreme Court and in such inferior courts as the legislature may from to time ordain and ■establish, and in justices of the peace.

It is unnecessary to determine whether, at that date, the jurisdiction of the Fifth District Court, which had been previously created, and wliich then existed, is to be tested, either by the Acts of 1853, Nos. 181 and 229, or by those of 1855, Nos. 344, 225,345. It. is sufficient that the legislature had the right to determine the jurisdiction of the District Courts for the Parish and City of New Orleans, in tax matters, and that it had effectually done so, first, by Acts 85 of 1858, and next, by Act 175 of 1859, which is supplementary thereto and not in conflict therewith.

By Section 2, of the last Act, the District Courts mentioned in it, and of which the Fifth District Court was one, were given jurisdiction in all tax cases instituted by the City of New Orleans, regardless of the amount involved. The suits were required to be brought in a specified alphabetical order, and jurisdiction was to vest accordingly.

II.

The question of jurisdiction being determined, those touching the validity and regularity of the proceedings next present themselves.

The proceedings were specially conducted under the provisions of the act of 1858, which appear to have been complied with.

That the judgment is rendered in broader terms or is couched in language somewhat different from that in which an order of executory process would have been, can be no serious objection.

There is nothing to show that a fieri facias issued upon it, and that property other than that described in the tax receipt, has been levied upon.

On the contrary, in strict pursuance of the judgment which directed it, a writ of seizure and sale, eo nomine, issued and was executed.

It is immaterial whether the curator ad hoc was appointed before or after the judgment was rendered and signed. The Court appointed him on the same day. He accepted the trust. The process of tine court seems to have been regularly served upon him. The property was seized, advertised, offered for sale on the 12th of November, 1860, and adjudicated to Mark Walton, for $350. The plaintiff does not pretend that she was not absent. An allegation in her petition, it seems, would defeat such a charge. The return of the sheriff on the writ shows that he seized the property and notified the curator. His return was not charged with fraud. It is unimpeached and uncontradicted. It must stand, and makes proof of its recitals. In the absence of any attack and px-oof in sxxpport, by the plaintiff, the presumption omnia rite acta may well be invoked and applied in this instance.

III.

The defendant in the case was cited by advertisement, as provided by the Acts of 1859. The name published in the list of deliixquent tax. payer's was that on the tax receipt, which itself is taken from the assessment x’olls.

It was as matter of no legal moment then, audit has not become such since, for the purpose of that suit, whether the defendant in the case was married or not at the time. The bill and the suit were merely against M. Georgiaxm Roberts. If she was married, her hxxsband was not a necessary party. Joining the husband with the wife, in judicial, proceedings against the latter, is xxot a constitutional requirement. It is a mere statute which can he deviated from by legislation. The form ixx which parties may he brought to the bar of justice, in civil matters, fluctxxates with the legislative will. It is required in ordinary suits only because the law says so, but it is not required in suits for the collection of public revenues. Were such not the law, it might become necessary for the legislature to create a special organization to watch and report the continual changes of such status on the part of the female portion of the tax paying community. The legislature has dispensed from the formality of joining the husband with the wife, in suits fox* the collection of the public revenxxes. It has prescribed other and distinct formalities, and indicates one system of proceedings for ordinary actions and another for tax suits, against married women. 28 A. 677.

IV.

The plaintiff has not shown in what particular the assessment of her property was defective. The burden was upon her to do so, and she has failed.

Tlie two proscriptions, that of five and that of íe» years, set up by the defendant, and his warrantors, are completely destructive of plaintiff’s action.

All informalities connected with or growing out of any public sale, made by any person authorized to sell at public auction, are prescribed after the. lapse of five years from the time of making it, whether against minors, married women, or interdicted persons. R. S. 3392; 2376 , R. C. C. 3543.

The irregularities and defects for which the law provides can be cured by a judgment on a monition proceeding, are likewise curable by the lapse of live years. The prescription of that term is productive of a like effect and is equivalent, to such judgment in its operation. R. S. 3392, 2376; 32 A. 914; 33 A. 673, 1043, 1175; 99 U. S. 482.

The sale in the tax case was by the sheriff, under a writ from a competent court. The deed was recorded in the conveyance office on December 22, 1860. This suit was brought on January 30, 1874. The acquired prescription enures to tlie benefit of all concerned.

The defendant and Ms warrantors have exhibited just, and translative titles, supported by the valid judgment of a competent tribunal, on writ duly issued and executed, a sheriff’s deed in proper form, regularly and seasonably recorded. They are entitled to the protection of the law. 2 A. 509; 3 A. 8; 8 A. 138; 9 A. 552, 13 A. 450; 6 N.S. 462; 4 La. 121; 16 La. 433, 442.

Under Articles 3478 to 3486, E. C. C., the prescription of ten years is fully sustained.

It is ordered that the judgment appealed from, be affirmed with costs.

Eeliearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 7417.
    Levi A. Levy, Jr. vs. M. Schwartz & Bro. and Wm. Golding.
    Tlie construction upon plaintiff’s premises and delivery to Mm of a cotton press constructed unskilfully and not in accordance with the contract, was an active violation of the contract, which ipso facto placed defendants in default, without the necessity of any formal putting in mora.

    The press being erected upon briclc foundations on the premises of plaintiff, the taking possession and making use of the same by him, was no waiver of the claim for damages.
    APPEAL from the Fifth District Court for the Parish of Orleans. Hogers, J.

      Henry JB. Kelly, for Plaintiff and Appellee :
    1. Where the violation of a contract is active or positive, no putting iu default is requisite as a condition precedent to the recovery of damages for the breach of contract. Erwin vs. Eenwiclr, 6 N- S. 233; Haughery vs Tliiberg, 24 An. 442; Taylor vs. Chase, 18 L 90; Davis vs. Glenn, 3 An. 444; Leeds vs. Passman, 17 An. 32; Coneryvs Noyes, 17 An. 201.
    2. Where a party to a contract performs his part of it unskilfully and in such manner as to cause damage to the other party, this is an active violation of the contract, and no putting in mora is necessary as a condition precedent to the recovery of damages by the party injured. Conery vs. Noyes, 17 An. 201; Lobdell vs. Parker, 3 L. 331; Martin vs. Pollard, 9 L. 174; Overton vs. Simon, 10 An. 170; Miller vs. Stewart, 12 An. 370; Nicholson vs. Desobry, 14 An. 81.
    3. When a mechanic undertakes to make and deliver a piece of machinery, and actually does deliver the machinery, but in a defective condition, lie will be considered in default from the time of the delivery of the defective work, and will he held responsible for such direct damages as the other party may have suffered from the delay caused by the defective work. Cable vs. Leeds, 6 An. 293; Bill vs. Penny, 15 An. 212; Nicholson vs. Desobry, 14 An. 81; Merlin, Feme Contractuelle, §111. No. 2.
    4. The fact that the party to whom the defective machinery is delivered makes use of it after delivery as its defective condition admits of, does not release the other party, or his warrantors, from liabilty for damages for defective performance; nor does a subsequent acceptance of the machinery, as complete after further work has been done upon it, release . the party in default or his warrantors from liability for damages for defective and dilatory performance of his contract. Regina vs. Bradlaugh, 38 Law Times, N. S. 118; Mindell vs. Steel, 8 Mees and W. 858; Munro vs. Blunt, 8 Ellis and Blackburn, 749; Wenshurst vs. Deely, 2 Manning, Granger & Scott, 253; Reed vs. Board of Education, 4 Abbott, N. Y. (5 TT. S. Dig. 127, No. 187); Esert vs. White, 10 Bush. (N. Y.) 169; Smith vs. Coe, Hilt. (N. Y.) 365; Tucker vs. Williams, ib. 562; Hill vs. School Dist. No. 2, 17 Maine, 316; Dermott vs. Jones, 2 Wall, 1; Railroad Co. vs. Smith. 21 Wall. 250; Grimm vs. Gamache, 25 Mo. 42; Stewart vs. Pulton, 31 Mo. 59 ; Smith vs. Brady, 17 N. Y. 173.
    5. Where there is a stipulation in the contract that the work is to bo done by one party to the “entire satisfaction of the other,” the latter is constituted by the act of the parties the judge and arbiter of tbe sufficiency or insufficiency of the performance; and no receiving of the work, except as work which has been done to the entire satisfaction of the party so constituted arbiter and judge of the sufficiency or insufficiency of the performance, will preclude the latter from recovering damages for defective performance. Benjamin on Sales, §§ 139, 140 ; Hardman vs Bellhouse, 9 Mees. & Welb.; Gray vs R. R. Co. 11 Him. (N. Y.); McCarren vs. McNulty, 7 Gray, 129; Pindley vs Breedlove, 4 N. S. 105; Conery vs. Noyes, 17 An. 203.
    6. A paity permitting the completion of the performance of a contract, after the time for the performance has expired does not tbeieby forfeit his right to damages for the breach of the contract as to time. Buff vs. Bimaldo, 55 N. Y. 664; Barber vs. Rose, 5 Hill, (N. Y.) 76; 15 Johnson, (N. Y.) 250; 12 Barbour, (N. Y.) 336; 6 Harris and Johnson, (Md.) 38-
    7. Parties to suit cannot claim that the debt sued for has been remitted, except where the remission of the debt has been specially pleaded. N. O. Gas Light Co. vs. Hudson, 5 R. 487; Biudworth vs. Hunter, 9 R 371.
    8. A stipulation in a contract that a party thereto may retain out of moneys agreed to be paid to the other party damages exigible for defective or dilatory performance, is a stipulation exclusively for the benefit of the party in whose favor it is made; and which he can waive without prejudice to his right to sue for and recover damages as stipulated in the contract. Benjamin vs. Hilliard, 23 How. 162; Everett vs. Gray, 1 Mass. 102; Bret* ton vs. Turner, 6 N. H. 481; Sraedes vs. Pord, 1 Ellis and Ellis, 602; Duckworth vs. Allison, 1 Mees. & Welb. 412; Riggs vs. Búrbridgo, 15 Mees. & Welb.; Bigg vs. Robert, 3 Carr, and Payne, 40, (14 E. C. L. R. 203); 1 Kent’s Comm. 545; Lane vs. Cotton, 12 Mod. 482; Hadley vs. Baxendale, 9 Exch 341; C. C. 2130, (2126) 2199; Tuullier, Liv. Iff. Tit. III. des Contrata, No. 335; Demolombe, Cours de Code Nap., Liv. III. et IY. Ch. Y. Nos. 441, 446 37ft; Larombiíjre, Yol. III. p. 566; Gilbert, Codes Ann. 1282,1283; No. 2; Mouton vs. Noble, 1 An. 192; Succession of Nivet, 5 An. 145; Bach vs. Cohen, 3 An. 103; Tresca vs. Maddox, 1 Ann. 208; 29 An. 958; 19 An. 212; Shute vs. Hamilton, 3 Daly (N. X.) 462; 3 TJ. S. Dig., N. S., p 147, No. 2; Thompson vs. Allison, 28 An. 733; C. C. 2125.

      Chas. 8. Hice, for Defendants:
    1. The prayer of the petition determines the character of the suit.
    2. Failure to complete and deliver a piece of work within the stipulated term, is but a passive breach of the contract. Art. C. C. 1931; and authorities under No. 3, below.
    3. Damages for the passive breach of a contract are due only from the time of putting the party in default, in the manner provided by law; and no evidence as to such putting in default is admissible unless properly pleaded. Arts. C. C. 1933, 2126,1911; 6 N. S. 229; 3 An. 444; 6 Bob. 450; 16 An. 390; 17 An 32; 5 La. 5; 115 Nob. 500, 501; 7 La. 193; lLa. 98; 13 La. 229; 9 Nob. 500; 3 An. 208; 11 An. 300; 15 An. 112; 14 La. 81; 10 Nob- 526; 6 N. S. 624; 2 Nob. 403.
    4. The exception of no cause of action and the objections to the admission of any evidence, except as to the breaking of the platen on November 13,1877, should have been maintained. See authorities under No. 3, above.
    5. Evidence of active breaches of a contract is not relevant or proper in a suit for damages, based on the passive breach alone of such contract.
    6. Allegations of non-delivery are totally inconsistent with allegations of delivery of defective work. Such allegations materially destroy each other.
    7. It would be unreasonable and unconscionable for a party to retain the possession apd use of, for the sake of making and actually making large profits from the use of, a work, and to recover damages growing out of the delay in completing such work, which completion such use and possession alone has prevented. 24 An. 442 ; 26 An. 72.
   The opinion of the Conrt was delivered by

Fenner, J.

This action is based upon a contract entered into between plaintiff and defendants, on August 26th, 1876, the essential terms and conditions of which are the following:

The defendants bound and obligated themselves to build and erect, on brick foundations, for plaintiff, in the main yard of the Natchez Cotton Press, in this city, a 73 inch cylinder Tyler Press,” according to certain specifications, and of certain quality of materials and workmanship, named in the contract, the same to be constructed to the entire satisfaction of said Levi A. Levy, Jr.;” and to be so completed and finished, and in good running- order and ready to be delivered to said Levy, on or before the 11th of October, 1876; in default whereof, it was stipulated, that the defendants should forfeit and pay to Levy, fifty dollars per day for each and every day that the said press and appurtenances shall remain unfinished and undelivered, which sum he shall be allowed to retain as liquidated damages out of any moneys that may be due ox owing-by him, for or on account of this contract.”

It cannot, as we conceive, admit of dispute, that under a proper construction of this contract, the obligation of defendants was to construct and have ready to be delivered at the date stipulated, not simply a press, not any press, but a press constructed according to the terms of the contract, and to the satisfaction of plaintiff; and that the delay, for which damages were stipulated, might have resulted, not only from the total inexecution of the contract, by failure to construct or complete, within the term any press whatever, but equally from a partial inexecution, by constructing and delivering a press which did not comply with the contract.

The original petition of plaintiff set forth the provisions of the contract, and simply averred, “ that the defendants heroin failed to comply with the terms and conditions of their contract, in this: that they failed to deliver the press completed, on the date fixed by said contract; that he did not receive or accept said press on said day; that said press was delivered and accepted by him, as finished and completed, only on the 6th of July, 1877; and that the negligence and delay of defendants in complying with the terms and conditions of their contract, has caused petitioner damage to an amount equal to, if not exceeding, that fixed by the contract; ” and he claims the stipulated damages for the whole term, from October 11th, 1876, to July 6th, 1877. It is manifest that the terms of this petition are broad enough to cover delay caused either by non-execution, or by defective and imperfect execution of the work; and, while objectionably vague, it strongly suggests that the complaint is levelled at the delay from the latter cause.

We therefore think there was no inconsistency or change of cause of action in the supplemental petition, wherein plaintiff alleges, substantially, that defendants did construct and present for delivery, a press, claimed by defendants to be such as was required by tlie contract, which, under the exigencies of his business, he took charge of and attempted to operate, under the supervision and with the assistance of defendants, but which lie never accepted as satisfactory, or as in compliance with the contract, until July 6th, 1877. He avers sundry imperfections and defects of workmanship and material, in violation of the contract; that the press worked imperfectly and unsatisfactorily; that it frequently broke down and required repairs, during the iiorformanoe of which its operation was often entirely suspended for considerable periods.

This state of affairs continued until June, 1877, when, after numerous repairs had been made by defendants, the question as to whether the press was then in acceptable condition was, by agreement of parties, referred to Mr. Tilton, as expert and arbitrator, who reported, recommending certain alterations in, and additions to, the press, which when done, “would, in Ms opinion, put the press in acceptable condition.”

‘ Whereupon, defendants executed the required work, and on the 6th «lay of July, 1877, tlie press was, for tlie first time, accepted by plaintiff as satisfactory, and in compliance with the contract.

The supplemental petition sets forth, with great particularity, the various defects in the construction of the press, and the various accidents, imperfections and. detentions resulting therefrom, and alleged numerous items of actual and special damages resulting to him, far ■exceeding in amount the stipulated damages for the entire term; but it renewed the prayer of the original petition, which was for the stipulated damages only. These allegations were entirely appropriate to the relief, as conducive to the allowance of tlie entire penalty, under the discretion vested in the Judge by Article 2127, C. C., which provides, that “ the penalty hiay be modified by the Judge, when the principal obligation has been pafthj executed.” The exception to the supplemental petition, on the ground of inconsistency and change of «original cause of action, was, therefore, properly overruled.

The defendants, however, object to the maintenance of the action, on the ground that there was neither allegation nor proof that defendants had been put in default, both of which, they contend, are essential in such a suit.

The contract sued on is an obligation with a penal clause, the latter being “ a secondary obligation entered into for the purpose of enforcing the performance of the primary obligation.” C. C. 2117.

The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation.” C. C. 2125.

“ Whether the principal obligation contain, or do not contain, a term in which it is to be fulfilled, the penalty is forfeited only when he who has obligated himself * * is in default.” '

Under these textual provisions, in actions to enforce penal clauses, two inquiries must be made, viz: 1. Has the obligor failed to perform tlie primary or principal obligation ? 2. Is he in default ?

As to the first question, if the evidence otherwise left it in doubt, which it does not, the agreement to arbitrate the report of the arbitrator selected jointly by plaintiff and defendants, and the action had on his report would conclusively settle it. ' They establish beyond question, that up to that time, the press had not been accepted by plaintiff, and was not “ in acceptable condition,” according to the requirements of the contract.

As to the second question, we consider that the construction upon plaintiff’s premises and delivery to him of a press constructed unskilfully and not in accordance with the contract, was an active violation of the contract, which ipso facto placed defendants in default, without the necessity of any formal putting in mora.

Such has been the uniform jurisprudence of this Court, notwithstanding the broad terms of Art. 1931, C. C. Lobdell vs. Parker, 3 La. 331; Martin vs. Pollard, 9 La. 174; Cable vs. Leeds, 6 A. 293; Nicholson vs. Desobry, 14 A. 81; Hill vs. Penny, 15 A. 212.

It is a mere play upon words to say that in an action for- delay in delivery, plaintiff claims damages for delivery of imperfect and insufficient work. Properly speaking, it is not a question of delivery, it is a question of performance of the primary obligation, for the enforcement of which the penal clause was provided. The delivery of an imperfect press, not conforming to the contract requirements, was not the delivery contemplated by the contract; was not a performance of the contract; was, on the contrary, an active violation of the contract, and did not prevent the running of the delay and the accruing of the penalty— subject to equitable abatement under C. C. 2127, in consideration of advantages which the plaintiff might have derived from the partial execution.

Another objection to plaintiff’s recovery, urged on the oral argument of defendant’s counsel, though not insisted on iu his brief, is this : that by taking possession, and making use of the press as constructed, and by subsequent acceptance of the same after further work done upon it, and by paying the entire contract price without deducting the damages now claimed — plaintiff waived and remitted his right to such damages.

As to the taking possession and use of the defective press, it is to be considered that it was erected upon brick foundations on the premises of plaintiff, and is, therefore, subject to the same principles which are applicable to defective buildings on a man’s land, or defective repairs on his house, or defective ploughing in his field, or defective engines and boilers put in Ms ship. In such cases a man is put in possession by the very construction of the work on his premises, as a concomitant of Ms possession of the premises themselves, .and he has the right to make such use of it as its defective condition will admit of, without thereby waiving his right to damages. Smith vs. Brady, 17 N. Y. 173; Munroe vs. Blunt, 8 Ell. and Black, 749; Wenhurst vs. Deely, 2 Man. G. and Scott, 253; Railroad Co. vs. Smith, 21 Wall. 250; Stewart vs. Fulton, 31 Mo. 59; Findley vs. Breedlove, 4 N. S. 105; Conery vs. Noyes, 17 A. 203.

Principles differing to some extent might apply to the case of independent chattels, such as a piece of furniture or a carriage, constructed under contract, as to which the party would have a clear and convenient option of taking or leaving.

As to payment of the price without retaining therefrom the damages as authorized by the stipulation in the contract, it is held by high authorities that such a stipulation is one exclusively for the benefit of the party, which lie can waive without prejudice to his right to recover damages in a separate action. Duckworth vs. Allison, 1 Mees and W. 412; Riggs vs. Burbridge, 15 id.; Smeed vs. Ford, 1 Ell. and Ell. 602; Benjamin vs. Hilliard, 23 How. 162.

Such settlement may afford some evidence of waiver or remission, but certainly not by itself sufficient. Remission is in the nature of a donation, a gratuitous abandonment of a right., not to be inferred except from acts clearly inconsistent with any other hypothesis. In this case, we consider that the receipts taken by the plaintiff, contain in themselves, clear evidence that he did not intend to abandon his right to damages. They contain language carefully excluding the idea that he intended by the payment to admit this completion of the work or to exonerate the defendant’s from their obligations under the contract.

After careful scrutiny of the evidence, we are unable to satisfy ourselves that the judge erred in his computation of the amount of time lost by plaintiff in the working of the press, by reason of its defective, construction, or in the abatement of -the- penalty which he allowed defendants on account of -the benefits derived by plaintiff from its partial execution. Nor do we think he erred in charging Schwartz. & Bro. with the amount, paid to their co-defendant, Golding, for the repairs made by the latter within one year from the date of the final acceptance of the press.

On July 6th, 1877, when the acceptance and final payment took place,a document was drawn declaring that the defendants do hold themselves responsible for all repairs and- breakages for the next twelve months, provided such repairs or breakages are not owing to tlie negligence or fault of the party of the second part, as per terms of contract.” , .

This was signed by M. Schwartz & Bro., to whom the money, had been paid, and who promised and bound themselves to procure the signature of Golding, which they neglected-to do. As to Schwartz & Bro., certainly this agreement must be considered as if signed by Golding. Subsequently, and within the year,’ the centre piece of the “lower platen” of the press broke. Mr. Golding was immediately notified and called on to repair it. He made a new piece and sent it to the press, but refused to deliver it unless plaintiff paid for it, which plaintiff did, under protest, and under the compulsion resulting from the necessities of his business, which could not brook delay. There is no suggestion of any negligence fault on 'the part of the plaintiff, and we think the evidence sufficiently establishes that the breakage was such as defendants were bound to repair. Golding was the proper person to call on for the repair, because he was the one of defendants who had a foundry, who built the press, and was in condition to do the work. There is no merit in tlie defense of Schwartz & Bro. that they were not personally notified. Tlie notice to their co-defendant and the doing of the work by him, was sufficient. Both defendants were bound to .bear the expense of the Tepairaud must refund the sum which plaintiff has paid therefor.

Judgment affirmed at appellants cost.

Rehearing refused.


author: Levy, J.

text:
    No. 8416.
    The State of Louisiana vs. Simon Dilworth.
    The affidavit of counsel appended to the Transcript, in this ease, cannot receive consideration and cannot be regarded as part of the record, subject to review by this Court.
    An indictment for larceny is valid though it does not say grand or petit larceny, inasmuch as the value of the object stolen is stated. 28 An, 315, 24; 31 An. 61.
    In the absence of specific objection and affirmative proof to the contrary, it will be presumed that the grand jury was legally organized. 30 An. 885; 31 An. 380, 91, 368, 378.
    The Court a qua had the power to correct a clerical error in its Minutes during the term.
    APPEAL from the Twelfth Judicial District Court, Parish of Rapides, Barbin, J.

      J. O. Bganf Attorney General, for the State, Appellee,

      W. W. Whittington, for the Appellant.
   The opinion of the Court was delivered by

Levy, J.


author: Bermudez, C. J. Bermudez, C. J. Bermudez, C. J. Levy, J. Fenner, J. Bermudez, C. J. Poems, J.

text:
    No. 8072.
    Succession of Daniel Edwards.
    On Motion to Dismiss.

      If, as alleged by Appellee, tbe Transcript was made by tbe ex-clerk of tbe court a qua and certified to by bim under a false date, at a time when be was functus officio, tbe fault not being charged to tbe Appellant, cannot affect bim. No ex parte evidence, in tbe shape of affidavits, is admissible to prove tbe averred falsity.
    It is settled beyond contestation, tbat a bond for costs is sufficient for a suspensive appeal to1 ' prevent tbe distribution of tbe funds of an estate.
    Tbe- Opposition to tbe Executor’s Account having been made by tbe Appellant, as natural tutor of bis daughter, Regina Ann Nelson, tbe appeal taken by bim as “tutor’’will stand.

      The office of the Judge ad hoc does not terminate with the judgment rendered by him. He has power to grant an appeal therefrom.
    On Rule to Receive Evidence.
    After a motion to dismiss the appeal has been overruled, the Appellee cannot be permitted to proceed by rule ou Appellant to show cause why certain evidence should not be received and, ultimately, why the appeal should not be dismissed. All the grounds of dismissal should be urged in the original motion.
    On Petition for a Rehearing. '
    It is only where definitive judgments are rendered by this Court, that applications for a rehearing can be made and entertained: not when the decree is only an interlocutory order.
    On the Merits.
    When one of two Executors is not entitled to Lis commission, because he is a legatee, the other Executor should only receive tlie one-half of the two and ahalf per cent, commission. An Executor is entitled to his commission upon the whole amount of the property administered hy him.
    Article 2278 of the Civil Code, which requires that the acknowledgment of the debt of a deceased person should, in order to iaterrupt prescription, be proved by written evidence, signed by the debtor, or by his specially authorized agent, does not require that the proof of the special authority should be also in writing. Such authority may be shown by verbal evidence.
    APPEAL from tlie Second District Court for the Parish of Orleans. Tally, Judge ail hoe.

      W. F. Murphy and J. L. Tissot, for the Executors, Appellees.

      W. S. Benedict, JE. 1). Saunders and Leovy & Kruttsehnitt, J. P. Jlornor, and A. J. Villerá, for Opponents, Appellees.

      F. W. JBalcer, for Nelson, Opponent and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered hy

Bermudez, C. J.

The executors of the deceased and one of the creditors of his estate, claim that the suspensive appeal taken hy “John Nelson, tutor,” from the judgment on his opposition to their account, should ho dismissed for the following reasons, viz :

1. The certificate appended to the transcript, is informal, incomplete and untrue. The transcript was not made by the Clerk of the Second District Court, before the 31st of July, 1880, or at any other time, hut was begun prior to and completed after that date, by some other person. The certificate thereto, purporting to have been signed on that day, was not then signed hy “ John Herbert,” who was, up to then,’the clerk of said court, hut was signed by him, in that capacity, long after that day, as though he was still the clerk of said court, which he then was not, said court having, with its clerk, passed out of existence on the first Monday of August, 1880. There was no one, after this date, authorized to sign such certificate, except the clerk of the Civil District Court for the Parish of Orleans, which had superseded the Second District Court, and who was the successor of said Herbert, and the said clerk did not so sign said certificate.

2. The transcript, so made, is contrary to law and to the rules of this Court, and offers no guarantee of the truthfulness, or correctness of the same, and on which it would be dangerous for appellees to go to trial.

3. A suspensive appeal does not lie on the issue presented by appellant’s opposition, to prevent the distribution of the. funds of the estate, on a bond for $150.

4. Appellant does not show in what representative capacity ho appeals, and has not appealed individually.

5. The Judge ad hoe, acting in place of the Judge of the Second District Court, recused, was without power to grant an appeal, his mission having expired with the rendering of the judgment.

On the first ground : Affidavits are offered to show the fact of the signing after the 31st of July, 1880, by “ John Herbert, Olerlc,” of the Second District Court, of the certificate at the end of the transcript.

There is no averment in the motion to dismiss charging the appellant with a knowledge of the irregular signature preferred. From what appears, the appellant is perfectly ignorant of the irregularity, and did not procure it. If it exists, it is not imputable to him. We could not give effect to an admission of the irregularity by Herbert himself, as he. could not be permitted to contradict, under oath, an attestation apparently made by him in an official capacity, and acted upon by an appellant, who had a right to presume the regularity of the certificate, and who acted in good faith; still less can we entertain and give effect to ex parte evidence, which, if it wore admissible here, would be insufficient to establish the charge legally. Upon its face the certificate is in the proper form and complete, even unto the seal of the court.

2. The transcript, thus certified, and the certificate standing, appears to satisfy the requirements of the law. We have not been told in what particulars it is at variance with the law, or the rules of this Court, and may be considered imperfect. If it be defective in not including matters which should have been embodied in it, or in •embracing matters which should not have been incorporated in it, parties claiming to be aggrieved are not left without remedy before the trial of the case. If the transcript be not deficient, or being so, the deficiencies can be easily remedied, we cannot see what ground of complaint any of the parties litigant; having interest adverse to that of the appellant, may have to ask that the appeal be dismissed.

3. It is settled beyond the possibility of a doubt, by along unbroken current of decisions, that, in a case like this, a bond for costs in the amount fixed by the court is sufficient to make the appeal suspensive, as characterized by the court when it allowed it. 16 L. 515; 10 A. 345; 27 A. 685; 20 A. 108; 22 A. 178; 27 A. 231; 28 A. 871; 21 A. 43; 30 A. 283.

4. The opposition was made by the appellant, as natural tutor of Regina Ann Nelson, his daughter. An appeal taken by him, as “ tutor," from a judgment on that opposition and a bond furnished by him in the same manner, under the order of appeal, without mention of the name of his ward, must be viewed and treated as taken by him as tutor by nature of his said minor child. No other construction is possible.

5. The record does not show that the order of appeal was granted by the Judge ad hoe. It may well be, under the authority in succession of Pinaud, N. R. (O. B. 46, fo. 221), that the Judge of the Second District Court should not have recused himself; but if this were the case, then the appointment of the Judge ad hoe would have been unauthorized and his judgment would be a nullity; but if the District Judge properly recused himself, and if the appointment of the Judge ad hoe was legally made, the mission of the latter did not terminate with the judgment, but continued to the very end of the litigation, mainly for the enforcement of the judgment when final and executory.

Whether granted by the District Judge, as the movers contend it should have been, or by the Judge ad hoe, who, we think, had authority to allow it, the order of appeal must be maintained.

It may be of some interest to say that the transcript in this case covers 786 pages, and that the opposition of the tutor is to a distribution of some $15,000, in which parties in interest might have been permitted to participate, after reserving out of the same an amount sufficient to satisfy opponent’s claim. R. C. C. 1470.

The motions to dismiss are overruled, with costs.

On Rule to Receive Evidence.

The opinion of the Court was delivered by

Bermudez, C. J.

Since the rendition of the decree herein, overruling the motion to dismiss made in this case, the movers, who are creditors, have taken a rule on the appellant to show cause why evidence should not be received to prove an averment in said rule, which was not incorporated in the motion to dismiss, viz: that the date appended to the transcript was so appended on the 4th of November, 1860, by John Herbert, not then clerk of any court, at the request of appellant, for the benefit of appellant, and to the prejudice of appellees, and contrary to law,” and why, ultimately, the appeal should not be dismissed. The proceeding is novel.

■ After a motion to dismiss has been made and overruled, it is irregular for movers to take a rule of this description, to supply the deficiencies of the motion to dismiss. Were such proceeding- tolerated, it might be indefinitely renewed. Parties moving- for the dismissal of appeals, must allege all their grounds together in the original motion. In any event, the rule pu'esents a new matter, viz: a charge of delinquency on the part of the appellant, to whom no fault was previously imputed, and comes forty days after the filing of the transcript.

The complaint is that the transcript is not properly signed, not that it is incomplete or deficient. In either case, it would not be a cause of dismissal (24 A. 61; 27 A. 473; 28 A. 576) in the absence of proper seasonable averment by appellees, of default on the part of the appellant.

The rule is dismissed with costs.

On Petition for a Rehearing.

The opinion of the Court was delivered by

Bermudez, C. J.

The motion to dismiss having been overruled, the movers, who are the executors of the deceased, have applied for a rehearing.

The decree complained of was not a final judgment. It was a more interlocutory order, C. P. 538, rendered on a preliminary matter.

It is only where definitive judgments are rendered, which dispose of cases before this Court, that applications for a rehearing can bo made and entertained. A final judgment is one which decides all the points in controversy between the parties, and which may have the effect of res adjudícala.

Had the motion to dismiss prevailed, the judgment sustaining it would have been a final judgment, and the appellant would have a right to petition for a rehearing. C. P. 911, 912, 539.

Application dismissed.

On the Merits.

The opinion of the Court was delivered by

Levy, J.

To the account and tableau of distribution, filed by the executors of Daniel Edwards, numerous oppositions were filed. The lower court which tried them, rendered judgment on the 5th June, 1880, which was amended by the same court on 21st June, 1880, allowing to W. E. Murphy, executor, the sum of $727.15, as commissions, and rejecting and disallowing the claim of J. W. Marshall, co-executor, for commissions, and reserving to W. E. Murphy his right to claim his commissions oil tlie sum of $35,000, now claimed in tlic suit in the Third District Court vs. J. D. Edwards; reducing the item in favor of J. L. Tissot, Esq., for attorney’s fees, (as assented to by all parties in interest) to $1500; reducing the items of funeral expenses from $265 to $200; recognizing as privileged creditors, Gauthreaux, sheriff, and Handy, ex-slieriff, 'respectively for $13.20 and $16.80; and as ■ordinary creditors, John Nelson, tutor, for $1635.65, with legal interest from J 5th April, 1878; Eugene Garrean for $322.20, with 8 per cent, interest from 22d April, 1878; Phillippe Faivre, for $1163.90, with 8 per cent, interest from 22d April, 1878, and Alfred Jacob, for $917.15, with 8 per cent, interest from 22d April, 1878; decreeing that Albert Taylor be placed on the tableau for the amount of his two mortgage notes, to be paid by preference out of the proceeds of the property to Mm mortgaged, say for the sum of $11,000, with interest at 8 per cent, per annum, from 9th June, 1878, together with 5 per cent, attorney’s fees thereon, and the further sum of $255, for premiums of insurance paid by him, and ordering the tableau, as thus amended, to be homologated.

On the trial of the rule on motion for a new trial, this judgment was further amended, by decreeing that the interest on the mortgage debt to Albert Taylor, cease as of date of sale of the mortgaged property, viz : 7th of June, 1879; that the interest allowed in favor of Phillipo 'Faivre, Alfred Jacob, John Nelson, tutor, and E. Garreau, cease as of date October 8th, 1879,'the date of filing account; ordering payment of costs and expenses in completing act of sale to Albert Taylor; costs of clerk; reservation by execution of $25 for future costs of clerk, and $10 for costs of writing of decree and the payment of balance pro rata to ordinary creditors, and rejecting the item of $52.50, traveling expenses of Mrs. Edwards.

Orders for appeals were granted to Mrs. Eliza J. Nelson, wife, etc., and to John Nelson, tutor, but an appeal was taken and perfected only by Nelson, tutor.

The oppositions which are now urged to the accounts are as follows:

Faivre and Jacob both oppose the claims of Albert Taylor on the turn mortgage notes of $5500. They plead against the notes the prescription of five years.

John Nelson, tutor, opposes the item of $1735.65, with legal interest from 15th April, 1878, for which he is recognized as a creditor in the account, and claims that it should be amended by recognizing him as a creditor for $1829.80, with 5 per cent, interest from 30th July, 1878, to 8th October, 1879. He also contends that the executors should be charged with the rents of certain property of the succession for 6& months, at $80 per month.

He also contends that the executors are liable for and should he charged with two notes for $2500 each, due by J. D. Edwards to D. Edwards; also that the executors should be held liable for and charged with the value of certain household furniture and movables worth $1500; the household furniture and office furniture, $250; which, he alleges, belonged to Daniel Edwards, the deceased, although claimed by and remaining in the possession of his surviving widow.

He also opposes the allowance of Murphy, executor, of $727.15, and alleges that it should be reduced to the sum of $289.05. He finally opposes the claim of Albert Taylor on the said mortgage notes, and holds that the executors should be required to account for the entire purchase price of the mortgaged property sold and purchased by Taylor, $13,000.

E. Garreau opposes the allowance of executor’s commissions, and claims that it should be reduced to $289.65, due Murphy, one of the executors, who is alone entitled to commission. He opposes the item of $240.15 auctioneer’s charges, and insists that it should be reduced to the sum of $87.

He opposes the allowance, as expenses of last illness, amounting to $596, alleging that the item of $231 physicians’ bills, is not privileged, because it is not shown that they were registered; that the item, ot $182.78, loanedto the deceased during Ms last illness is not a privilege, that the railway fare from New York to New Orleans of J. W. Marshall and Mrs. Edwards, ($105) is not a proper charge against the succession and should be disallowed; that the fare on body of deceased from New York to New Orleans, ($85) should be embraced in the cost of funeral expenses.

He opposes the item for funeral expenses (including the last named item of $85), amounting to $349.65, on the ground that, if the plea of prescription to the notes held by Taylor is overruled, the succession will be insolvent, and this charge should be reduced to $200. He also opposes the claim of Albert Taylor on the two mortgage notes, urging that they are prescribed.

As to the executor’s commissions, we concur with the judge a quo in Ms disallowance of commissions to Mr. Marshall, one of the executors, who was also a legatee under the last will of the testator. He falls directly under the inhibition contained in Art. 1686, R. C. C.: “Testamentary executors, to whom the testator has bequeathed any legacies or other gifts by Ms will, shall not be entitled to any commission, unless the testator has formally expressed the intention that they should have the legacies over and above their commission.” In the will of Daniel Edwards, there is no such formal expression of intention by the testator and there is no renunciation by the executor and legatee. The commissions to which Mr. Marshall would liavo been entitled, but for the ■obstacle mentioned, accrue to the succession, and Mr. Murphy is entitled only to his half of the 2£ per cent, commission; i. e., 11 per cent. We think the executor should he allowed his commissions upon the amount administered upon by him. He has waived and expressly disclaims any light to commissions on the property sold by the sheriff and the amount of the claim against Murphy, and the claim of $5000 on J. D. Edwards, for the collection of which no steps have been taken, say $12,000 x $1850 x $9000 ; which leaves $72,022.40, amount of inventory, less $48,850 — 858,172.40, on which he should receive as commissions, at 11 per cent.., say $627.15. 2 R. 445; 12 L. 608; 3 R. 283 ; 12 R. 155 ; 7 A. 475; 3 A. 624; 12 A. 334.

The claim of John Nelson, tutor, should be increased from $1635.65, to the sum of $1829.80 with interest, as allowed in the judgment appealed, the costs incurred in the suit for the enforcement of the mortgage in favor of the minors, being a portion of the real indebtedness of the succession in this matter.

We do not think that the executors are liable either for the rents of the property, or for the notes for $2500, referred to in the protest in the inventory, with which opponents seek to charge them, and the reasoning of the Judge a quo is satisfactory to our minds on these subjects. So also as regards the alleged liability of the executors for the furniture. The evidence in the record satisfies us that it was not the property of the deceased, Daniel Edwards.

The most important question submitted for our decision in this case is the plea of prescription, wliieh is opposed to the claim of Albert Taylor on the two mortgage notes of $5500 each, dated on June 9th, 1870, and maturing one year after date. This question has been very earnestly and ably argued on both sides, orally and in briefs. The lower court held that prescription had not'accrued on the notes. The circumstances are as follows:

As just stated, these notes matured one year after date, including the days of grace allowed, on the 12th June, 1871. On the 12th day of June in the several years, 1871, 1872, 1873, on the 9th June, 1874, 1875, the following endorsements were made on the notes: By mutual consent the payment of this note is postponed to 9-12 June (1872,) all interest on the same having been settled up to that date. (Signed) Daniel Edwards, per James D. Edwards.” The endorsements respectively extending payment one year from dates of endorsements.

On July 7th, 1877, the following endorsement was made: By mutual consent, the payment of this note is postponed.to 9-12 June, 1878, all interest being presently paid to that day.” (Signed) Daniel Edwards, by W. E. Murphy.

As stated by counsel for the opposition: The point ¡it issue is this: does the law, as laid down in Art. 2278, R. C. C., require that the authority of the specially authorized agent, mentioned in that Article, should be proved by written evidence, or may it be proved by parol ?

The Article reads thus : “ Parol evidence shall not be received to prove any acknowledgment or promise of á party deceased to pay any debt or liability, in order to take such debt or liability out of prescription, or to revive the same after prescription has run or been completed. But in all cases mentioned in this Article, the acknowledgment or promise to pay shall be proved by written evidence, signed by the party who is alleged to have made the acknowledgment or promise, or by his specially authorized agent or attorney in fact.”

We have been at great pains in considering the reasons on which opponents rely to sustain their plea of prescription, and cannot agree with them in the construction of the law for which they contend. The law forbids proof by- parol of any acknowledgment or promise of a party deceased to pay: any debt or liability', in order to take it out of prescription or to revive it after prescription has accrued, but it contains a further clause which explicitly defines what kind of ¡in acknowledgment or promise shall be made in ■ order to operate as an interruption or renunciation, to-wit: that such acknowledgment or promise to pay, shall be proved by written evidence, signed by the party.malring it, or by his specially authorised agent or attorney in fact.” This, to our mind, is clear and full, and contains no ambiguity, is involved in no doubt and the intention and reasons of the law-maker are distinctly set forth. In short, it manifestly required that these acts of acknowledgment or promise to pay' should be evidenced by' writing done unexecuted during the lifetime of the party debtor, and this written acknowledgment shall be in existence, signed by him or his special agent or attorney'-, prior to his death. We are asked to add to the law an independent provision and to eke out the intention of the law-maker by' declaring that, where the acknowledgment or promise to pay is written and signed by one specially authorized for that purpose by- tin* deceased in his lifetime, it shall not be sufficient, unless the authority thus to act shall have been given in writing by the deceased. To do this would be to assume legislative functions, and, in the absence of ambiguity of expression, not to construe the intention of the legislature, not to pass upon the latent meaning on account of such ambiguity, not to render clear what by its verbiage needs judicial construction, but virtually to make a new enactment, and enlarge the statute by the addition of a new rule, and the adoption of a proviso explanatory' merely, but original in all its features.

It is not contended that the mandate to acknowledge and consent to extension of payment of a note or other liability is required to be in writing. Those mandates which are required to be written are expressly enumerated in writing, and this not one of them. “ Inelusio iinius est exelusio alter his.” Besides, the authorities on the subject are conclusive on this point. An analysis of the article which wo have quoted above satisfies us that it is only contemplated thereby, that there should have been a written acknowledgment or promise to pay, and that this should have been made either by the debtor himself or his specially authorized agent or attorney in fact. As we have before said, no written authority was necessary for the constitution of such special agent or authority. The verbal authorization justified him in making the written acknowledgment, just as a verbal authorization would be sufficient for him to purchase or sell a movable for his principal, and being at the time the legally authorized agent of the principal, the acknowledgment was the acknowledgment of his principal, and having been made in writing, is a full compliance with the plain requirements of the law. If it had been intended that the authority to the agent or attorney should be in writing, the law would have so declared, and in the absence of such declaration, we cannot supply a new rule. The plea of prescription is not to be supplied by the Court, nor is its effect to be enlarged by implication. 6 La. 587; 2 A. 890; 21 A. 477; 2 A. 290 ; 22 A. 445 ; 5 R. 473; 14 A. 514; 4 A. 509.

Wherefore, it is ordered, adjudged and decreed, that the judgment appealed from be amended, by allowing the claim of John Nelson, tutor, for the sum of $1,829.80, with legal interest from April 15th, 1878, until 8th of October, 1879, the date of filing of the account, by reducing the commissions of W. E. Murphy to the sum of $627, and, in all other respects, said judgment appealed from be affirmed, at -the costs of the succession of 1). Edwards as to the opposition of John Nelson, tutor, in both courts, and the other opponents, appellants, to pay the costs of their several oppositions in both Courts.

Concurring Opinion.

The opinion of the Court was delivered by

Fenner, J.

I fully concur in the opinion just read, and deem the reasons given therein ample and conclusive. As, however, the question of prescription is important, and a different view is urgently and vigorously insisted upon by some members of the Court, I venture to give the order of my own thoughts in my own language.

It is the general rule of our law that interruptions of prescription, by acknowledgment of a debt, or promise to pay it, may be proved by parol.

Prior to 1858, this general rule was subject to no exceptions.

In that year a statute was passed, establishing certain exceptions to that rule, which statute is now embodied in Article 2278, C. C. Amongst other exceptions that statute provided, that “parol evidence shall not be received to prove any acknowledgment or promise of a party deceased to pay any debt, in order to take such debt out of prescription.”

Had the Article stopped here, the analogy between its provisions and those of Articles 2275 and 2440, relative to the proof of title to immovable property, would have been complete, and the decisions of this Court, holding that agency in matters affecting such titles must be in writing, would have been applicable.

' But the Article does not stoqi here. It proceeds to fix and define the kind of evidence by which such acknowledgment may be proved, to-wit: “By written evidence, signed (either) by the party, or by his specially authorized agent or attorney in fact.”

Under familiar rules of construction, negations are controlled by affirmations, and general provisions cannot derogate from special ones. The first general negative clause of the statute is, therefore, entirely limited and controlled by the final affirmative and special description of the kind of evidence which shall bo received in proof.

When a party, seeking to prove the acknowledgment of a party deceased, presents “ ■written evidence, signed l>3r his specially authorized agent or attorney in fact,” he is as much within the letter of the statute as if he presented similar “written evidence signed by the party.” In either case, he must prove that the document is what it purports to be. If it purports to be signed by the party, it nmst be proved that it was so signed. If it purports to be signed by his duly authorized agent, it must be proved to have been so signed.

The only “ ‘written evidence” referred to, or required by, the statute, is “ written evidence,” which is equally good, -whether signed by the party or by his duly authorized agent. To say that the mandate to the agent is embraced within the requirement of such “ ‘written evidence,” involves the holding that such mandate may be signed either by the party or by the agent himself.

We are utterly unable to discover in this statute any restriction of, or exception to, the general rule of our law, that mandates of this character may be made and proved without writing, or any warrant for holding that acts done under a verbal mandate, perfectly valid, and evidenced by written proof in litoral conformity with the requirements of the statute, can be robbed of their legal effect by judicial interpolation of rules of evidence not expressed in the statute and contrary to the general law.

Generalizations as to the object of the law and as to dangers of its evasion under our interpretation are entitled to no weight whatever. Possibly the law-maker might have adopted a law more stringent than this law is, under our construction of it, or even under the construction placed on it by the minority of the Court.

It is sufficient for us to say that he has not done so. We obey the legislative will as we find it clearly expressed in the statute.

Quoties in verbis nulla est ambiguitas, ibi nulla ex/positio contra verba fienda est.

I find but one authority in our own reports that seems to me to have any bearing on the case, and that a doubtful one. In proof of default by a “ demand in writing,” under Article 1905, C. C. (Rev. 1911) this Court held, that where such demand in writing was made by an agent, parol evidence was admissible to prove the agency. Laville vs. Rightor, 17 La. 303.

B it this is essentially a statute of frauds, and it is perfectly settled, that under the statutes of frauds prevailing in England and our sister States, -where the statute requires written evidence signed by the party or by his duly authorized agent, it is not necessary that the agent’s authority should be in writing, except in cases where the statute expressly so requires. 1st Greenleaf Ev., §§ 267, 268, 269, and authorities there quoted.

I see no reason why this Court should adopt a different rule.

The original English statute of frauds, 29 Car. II. C. 3, in its 4th section, prohibits proof of certain agreements, “unless the agreement shall be in writing signed by the party to be charged, or some person by him thereunto lawfully authorized.” As heretofore indicated, it has been universally held, in England and our sister States, that the agent’s authority need not be in writing. 3 Parson’s Equit. p. 12; 2 Kent Com. p. 663.

Considering our close connection with commonwealths which have long lived under this statute, and considering the exact equivalency of the language employed in our act, I think it a fair inference that this language was employed under the full expectation that it would receive the same interpretation which had been given to like language in the familiar jurisprudence referred to.

DISSENTING OPINION.

The opinion of the Court was delivered by

Bermudez, C. J.

I respectfully differ from the majority of the Court on the question of the nature of the evidence required to prove the agency of a party to acknowledge and promise to pay notes of a deceased person prescribed on their face. I think that oral testimony should not have been received to prove that agency, and that none but written evidence could have been admitted.

It is clear to every mind, that the law of 1858, relative to written evidence in certain cases, now Article 2278 of the R. C. C., and which is couched iu significant negative language, prohibits the admission by the Court of any oral testimony to prove an acknowledgment of a party deceased to pay any debt, in order to take such debt out of prescription, and exacts that the acknowledgment and promise to pay shall be established by written evidence, signed by the party alleged to have made the acknowledgment or promise, or by his specially authorized agent or attorney in fact.

This law has been declared to be one of public order, and that parties, by their conventions, cannot be permitted to derogate from the force of its provisions, and thus to nullify it in its application. 23 A. 747; 26 A. 221.

It is a law addressed to-the Judge for his official guidance, and which makes it Ms duty, proprio motu, to arrest the admission or introduction of verbal testimony, and when already administered, to ignore and disregard it completely.

The object of the law, in view of the appalling abuses prevailing in the days of its adoption, was to prevent the practice of fraud upon successions, and to that end, to silence the mouths of the negligent or mischievous living against the departed one, whose voice could be heard no more. 14 A. 274.

It is palpably a remedial law, levelled against the perpetration of fraud. As such, it should be liberally and beneficially expounded to suppress, as effectually as morally possible, the mischief, and advance the remedy.

In remedial cases, says Lord Mansfield, the construction of statutes is extended to other cases within the reason and rule of them. Atchison vs. Everitt, Cowp. 382, 391; see Duarris, p. 632; Sedgwick Const. of Statutes, 309; Cooley Const. Lim. No. 65; 1 Penn. 215; 1 Hammond, 256, 385, 481; 2 Hammond, 74; 4 Barb. 65; 3 Mass. 254; 4 Mass. 439; 6 Cal. 462; 52 Ill. 260; 7 Ind. 416; 2 Ohio St. N. S. 431; 7 Ohio, 247; 1 Maryland Ch. Decis. 342; 8 Maryland, 88; 9 Ga. 523; 2 N. J. 623; 19 Conn. 597; Coke Littleton, 268; 1 Blacks. 88; 4 Cranch. 224; Dudley, 182.

The impossibility of contradicting witnesses, testifying to acknowledgments and promises to pay debts, prescribed on their face by persons since deceased, and their consequent entire immunity from temporal punishment for false swearing, were no doubt the incentives which impelled the passage of such a law, requiring written evidence and forbidding absolutely the introduction of verbal testimony in such •cases, however high the character of the witnesses offered might be.

It is true that the law does not, in as many words, require that the authority of the agent be in writing; but if it can be viewed as somewhat reticent on that subject, the reason for the omission can well be said to be that the legislature considered the principle that “ the agent to make a deed, miwt be authorised by deed,” so deeply rooted in our jurisprudence, that he deemed it superfluous to express it.

The law clearly designs, that when an acknowledgment and a promise to pay are alleged to have been made by the attorney of ono since deceased, the authority of that agent to make them vicariously for the principal, must be evidenced by a written power conferring it specially; in other words, the law forbids that evidence of an inferior grade or solemnity be admitted to establish against the estate of the principal, an authority to make acknowledgments and promises to pay debts apparently prescribed, which could not be received had they been averred as made by him in person.

If such were not the case, the essential proof required for the protection of estates could be dispensed with and easily substituted by resort to the prohibited oral proof, in order to establish the power to execute the written act.

To interpret the law differently, is practically to blot it entirely out of the Code.

It is patent to my mind, that where the law requires such a fact be proved by an act under the signature of the principal, or of his agent, sjieeially authorized, the authority of the principal to the agent, to make the written acknowledgment, must itself be in writing.

That power to acknowledge and promise to pay is itself an acknowledgment of the debt, which could not be proved directly against the principal’s estate or succession otherwise than in writing. How, then, could the acknowledgment by the agent be permitted to have been made so as to bind, unless upon written authority to make it 1

The rule of evidence applicable to this subject, is recognized by elementary writers and applied in numberless cases.

Kent says : Where any act is required to be by deed, the authority of the attorney to execute it must be commensurate in point of solemnity and by deed also. The agency must be antecedently given or be subsequently adopted.” See Gage vs. Gage, 10 Foster, 420.

Story on Agency says : “ Whenever any act of agency is required to be done in the name of the principal under seal, the authority to do the act must generally be conferred by an instrument under seal.”

A mere unsealed writing will not be sufficient to make the execution of the deed by the agent valid at law. * * * The ground of this doctrine seems to be, that the power to execute an instrument under seal should' be evidenced by an instrument of equal solemnity, by analogy to theknown maxim of the common law, that a sealed contract can only be dissolved or released by an instrument of as high a dignity, or solemnity. JEodem modo quo oritur, eodem modo dissolutur. See Dig. L. 50, tit. 17, 1. 35; Pothier on Oblig. by Evans, Nos. 571 to 580.

Greenleaf concedes the proposition so absolutely, as a matter of course, that “the agent to make a deed must be authorized by deed,” that his efforts are directed to finding out exceptions. Yol. 1, § 269.

Wait (Actions and Defenses), in support of the proposition that “ whenever an act of agency is required to be done In the name of the principal under seal, the authority to the agent or attorney to do the act must be conferred by a like instrument,” refers to the following authorities: 5 N. Y. (1 Seld.) 229; 5 Binn. 613; 11 Ohio, 223; 5 B. Monroe (Ky.) 75; 6 Mees & Wells. 200; 22 Gratt (Va.) 600; 30 Ga. 278; 40 Mo. 69.

The long established rule is, that where an agent is to execute his authority by deed, it is absolutely requisite that the authority to do so should be under seal.” Ewell Evans on Agency, Ed. 1879, No. 17, on p. 26: also Roberts on Frauds, 355, 366; Paley on Agency, 158; Wait’s (A. & D.) Vol. 1, p. 218.

Precedents at common law, which may be invoked as supporting the admissibility of parol to prove an agency to do an act, the evidence of the doing or execution of which is in writing, must be taken cum grano,. subject to the purport and meaning of the term, in that system. 39 Wis. 614; 11 Ad. & E. 589; 3 Hill, 72. 8 M. & W. 840; 7 Cush. 371.

Parol there means that which may be or may not be in writing and which need not be in writing. The writing is accidental, not a prescribed or necessary formality.

Contracts which do not require a seal and may be valid whether in writing or by word of mouth, are probably classed as parol, for the idea is, to treat the writing as unimportant, not to deny it. Abbott Law Diet., Vo. Parol, p. 240; Ib. Vo. Deed, p. 354.

The requirement of our law for the production of a written instrument to prove certain facts is equivalent to that of the common law, in relation to acts or deeds under seal. R. C. C. 2234, 2235, 2240, 2242.

The exigencies in the one exist alike in the other system. The precedent invoked are of cases in which the act done was not required to be done under seal by the principal. Oral testimony is particularly excluded when the law, in negative language, forbids it from being received at all.

Our Code, Art. R. C. C. 2992, on the subject of mandate, is to the effect, that a power of attorney may be given either by public act or by a writing under private signature, even by letter; that it can be given verbally, but of this testimonial proof is admissible only conformably to the title of conventional obligations.

By reference to Article 2275, under that heading relative to the reception of testimonial proof, the article under consideration, which ever since 1858 forms part of our law on the subject of evidence, is tó be found.

Commenting upon Article 1985 of the C. N., which is identically our Article 2992, on the subject of mandate, Troplong, in his remarkable work, says:

u Si l’existence du mandat était problématique et que l’une on l’autre des parties demandát á prouver oralement des fails que l’on qualifierait d’actes d’exécution pour arriver par cette voie détournée, á la preuve méme de la convention, ou devrait étre repoussé. Avant de donner á ces faits le noin d’actes d’exécution, il faudrait. établir l’existence antérieure du contrat auquel ils se ratachent et duquel ils découlent. Or, on n’a pas la preuve de cette existence; et si l’on aspire á se la procurer par la preuve des faits artioulés, on tourne dans un cercle vicieux. On ne fait pas attention qu’on n’exócute une convention qu’autant que cette convention existe, que si elle n’existe pas, l’exóeution alléguée n’est qu’un vain mot et que la preuve des faits n’est, en réalité, que la preuve de la convention elle méme, preuve interdite par la loi.’’ Mandat, p. 161-2, No. 146.

The rulings of the highest tribunal of this State have invariably recognized and crystalized the principle:

“ Whenever the law requires the contract to be in writing, the power to execute it must be in writing also.” 7 M. 243; 2 L. 596; 8 R. 242; 10 R. 35; 4 L. 168; 1 A. 72; 3 A. 332; 6 A. 525; 21 A. 548; 23 A. 196; 28 A. 678, down to 30 A. 900.

In 16 A. 150, Humphreys vs. Browne, the Court said:

The authority of the alleged agent to make such lease, is not established by legal evidence. As a party cannot be controlled in the order of introducing Ms evidence, the written agreement, signed by B. &. K. for H., was admissible; but could have no effect as proof, until the agency was shown by evidence of equal dignity, which was not adduced.”

It is an indisputable principle in the law of evidence, that -when the law requires the evidence of acts done to be in writing, the proof offered, In order to produce effect, must either be complete in itself, or be supplemented by evidence of the same rank or dignity, oral or verbal testimony not being admissible against or beyond what is contained in such acts, nor of what may have been said before, or at the time of making them, or since.

For that reason, it has been held in a number of instances, which it would be idle to cite, that no oral or verbal testimony can be received to perfect the deficiencies in the written instrument, unless where error was alleged. The rule has been extended and applied even to cases in which the law did not require written evidence to prove the act, where such evidence, which could have been oral or verbal, was in writing.

■ Nevertheless, in cases in which real estate or real rights were involved, the Courts have allowed weight and given effect to oral and verbal testimony, admitted without objection; but this has never been done, and cannot be done, where, the evidence is required to be in writing and parties are denied the right of consenting to the reception of any other proof. 23 A. 747 ■, 26 A. 221.

In the case before the Court, the oral and verbal testimony admitted was introduced to supplement the written acknowledgment of the alleged agent, which was necessarily incomplete in itself, as it did not and could not carry on its face the evidence of the agency, and this, too, in violation of a prohibitory law couched in negative language.

To permit oral testimony, in a case like the present one, is to defeat the very object of the law by permitting to be done circuitously that which could not have been done directly; it is to open a wide gate for the spoliation of estates otherwise protected.

The pernicious consequence of the admission of such oral proof will be, that all that spoliators of estates will hereafter have to do, in order to acconvplish their nefarious purposes, will be to procure similar written acknowledgments, from any confederate assuming or purporting to have acted as agent of the deceased, and to have Mm to testify to his authority, after the opening of the succession. It is indeed hard to perceive how pleas of prescription, in such cases, will hereafter be maintained.

I prefer not to take part on other points in the opinion, as I had not sufficient time to examine them thoroughly, and as my concurrence is unnecessary to make a decree.

DISSENTING OPINION.

The opinion of the Court was delivered b3r

Poems, J.

The Act of the legislature, No. 208 of 1858, a proper construction of which has created such diversity of opinion among the members of this Bench, is entitled: An Act to require written proof in certain cases.”

In keeping with the object announced in its title, the act provides that written proof shall be required in the following cases :

1. To show interruption, by acknowledgment, of prescription against a judgment.

2. To show interruption of prescription, by acknowledgment, of a debt by a deceased person.

3. To prove a promise to pay the debt of a third person.

4. To prove a promise to pay a written obligation when proscription has already run.

It concludes with a clause repealing all laws, or parts of laws, in contravention therewith.

The safest mode of construction of a law is to consider and ascertain :

1. The reason for its enactment.

2. The object proposed.

3. The means of accomplishing the end in view.

In applying this test to the section of the act which is under consideration in this case, we find :

1. That the reason which prompted the enactment was the facility with which fraud could be practiced against successions, by admitting verbal testimony to show acts of acknowledgment of a debt by aperson since deceased, in consequence of whose death and silence a perjured witness could, with impunity, be made to state acts of acknowledgment by the debtor, without the fear of successful contradiction from the only person who could be conversant with the real facts of the case.

2. The object of the law was to shield, successions from the possibility of such ill practices, and from the effect of such frauds.

3. Tlie means proposed were by excluding all parol testimony to show acts of acknowledgment of a debt by a deceased person, in order to take such debt or liability out of prescription, or to revive the same after prescription has run or been completed, “but that in all such cases the acknowledgment, or promise to pay shall be proven by written evidence, signed by the party deceased or his specially authorized agent or attorney in fact.

It is conceded by the majority of this Court, that the payment of interests on the notes due by this succession, and the renewed promises to pay the same, if alleged to have been made by the deceased himself, could not have been proved by parol testimony, but that written proof alone could have been admitted to prove such payment or acknowledgments, with a view to show interruption of prescription; but it is contended that the authority of the alleged agent, wdio has signed such an acknowledgment, can be proven by parol testimony ■, or, in other words, that an act which has for its only object the intention of requiring written proof in certain cases, has provided for an exceptional case in which written proof shall not be required. I suggest that such a construction is destructive of thevery object proposed by the statute, which is to shield successions from the effect of statements by perjured witnesses, in making proof of the acknowledgments of debts by deceased persons.

The object of the law in requiring the signature of the deceased to every act of acknowledgment of a debt alleged to have been made by him, was to place it beyond the power of perjury to accomplish the scheme of proving an interruption of prescription, by acts charged to the debtor himself, and under the construction of the majority of the Court, the fraudulent witness, by writing the acknowledgment himself as the alleged agent of the deceased, will be allowed by parol testimony to establish his authority to make such written acknowledgment. '

And thus, the fraud which the legislature intended to prohibit from being practiced directly, by false statements touching the acts of "the deceased himself, can be practiced indirectly and with impunity by a false pretension to be the agent of the deceased, with full authority, shown by parol, to make a written acknowledgment in the name of the deceased, whose lips are closed against the pretensions of the impostor. Hence the protection intended to be thrown around successions, in the interest of heirs and bona fide creditors is completely paralyzed, and the object of the law absolutely defeated.

By the repealing clause of the act, the legislature clearly manifested its intention of abrogating all laws heretofore admitting parol proof of the acknowledgment of debts, in so far as such proof could affect prescription, running or completed, in favor of successions; but the construction adopted in this case, excepts from the operation of this legislation, acts of acknowledgment of debts when signed by the pretended agent of a deceased person, in which case it is held that parol proof is admissible to complete the chain of the evidence which is required by the law to be entirely in writing.

Not only is such a construction violently repugnant to the textual provisions of the statute, but it is further forbidden by the consideration that the act itself, if open to such a construction, would to that extent be violative of the constitution, which was at the time of its passage the organic law of the State.

Art. 118 of the Constitution of 1852, provided that “ every law enacted by the legislature shall embrace but one object, and that shall be expressed in its title.” The object of this act being to require written proof in certain cases, it is elementary that the act could not provide, in its body, for exceptional cases where written jn-oof conld not, or would not be required, because that object would not be included in its title, and for the further reason that it could not be thus constitutionally included, as the act would then have embraced more objects than one.

It is therefore clear, that even if the intention of the legislature had been under the title of the act, to provide for such exceptional cases, such intention would have been violative of the constitution under which it was created, and that portion of the act would have been null and void.

The fact that the statute has since been incorporated as Art. 2278 of the Revised Civil Code, does not place it beyond the test which I have adopted, and which is universally recognized as the safest rule of construction of any enactment which may be subjected or liable to a misconstruction.

The compilers of the Code had no authority in law to alter the meaning of any statute which they sought to incorporate in the Code, or to depart from the clearly expressed purpose contemplated by the legislative will at the time of the passage of the act.

With due deference for my learned associates composing the majority, I sincerely deplore the error into which they have inadvertently fallen, and I respectfully dissent from their opinion on this point, and hence, I decline to take any part in the decree rendered on the various issues raised by the pleadings in the case.

Rehearing refused.