author: Spoffoed, J. Merrick, C. J.,

text:
    E. Johnson & Husband v. P. Bloodworth—B. Toledano & Taylor, Intervenors and Appellants.
    The unpaid vendor of a slave sold by private act unrecorded, may enforce the implied dissolving condition against his vendee, to the prejudice of the mortgage creditor of the latter.
    A PPEAL from the District Court of Natchitoches, Chaplin, J.
    XX IT. Safford, for plaintiff and appellee.

      J. B Smith, for defendent.

      J. G. Gampbell & A. H. Fierson, for intervenors and appellants.
   Spoffoed, J.

It is agreed that the main question to he here solved is this: When the vendee of a slave, holding by private act unrecorded, has mortgaged the slave to a third person by public act duly registered, can the unpaid vendor enforce the implied dissolving condition against his vendee, to the prejudice of the mortgage creditor of the latter ?

The principles which, in our opinion, must control the decision of this question are embodied in a few articles of the Civil Code.

“ The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. It does not suspend the execution of the obligation ; it only obliges the creditor to restore what he has received, in case the event provided for in the condition takes place.” C. C. 2040.

“A resolutory condition is implied in all commutative contracts to take effect in case either of the parties do not comply with his engagements ; in this case the contract is not dissolved of right; the party complaining of the breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance.” O. O. 2041.

“ If the buyer does not pay the price, the seller may sue for the dissolution of the sale.” O. O. 2539.

“ Obligations are extinguished * * * * by the effect of the dissolving condition which has been explained in the preceding chapter.” O. O. 2126.

“ Such as only have a right that is suspended by a condition, and may be extinguished in certain cases (in the Frinch text,¿ni résoluble dans certains cas, ou sujet d rescisión) can only agree to a mortgage subject to the same conditions, and (ou) liable to the same extinction.” O. O. 3268.

Our jurisprudence upon the topic of the resolutory condition in commutative contracts, so for as it has gone, is believed to be lucid and consistent.— Little remains to be said upon that branch of the subject which has been fathomed and expounded, in a few terse paragraphs, by the clear intellect of the late Judge Martin. In Mortee v. Roach's Syndic, 8 L. R. 83; this learned Judge, as the organ of the court, remarked : “ A sale is a synallagmatic contract which imposes on the vendor the obligation of delivering the thing sold and requires of the vendee the payment of the price. In the case of reciprocal obligations, the party who does not perform his part of the engagement, cannot avail himself of any rights resulting to him from the contract; consequently, the other party may demand the rescission of the contract from the defaulting- party.

“•The insolvent debtor not having paid the price was not the absolute owner of the slaves; and his right to the property was therefore not indefeasible.

“ The cession or surrender of the insolvent debtor’s rights could not, and did not, change the character and nature of those rights. They remained the the same; for the debtor could only cede the rights he had, and in the condition they were at the time. What was conditional and defeasible in his hands, did not become absolute and indefeasible in the hands of his creditors. The plaintiff did not not contravene the order staying all proceedings against the person and property of the insolvent, by exercising his right (to sue for the dissolution) against the syndic.

“ The slaves in controversy, not being the absolute property of the ceding debtor, and his defeasible right to them being annihilated by the rescission of the sale, it follows that they make no part of the property surrendered; and their price cannot be diminished, or they in any manner held liable by the syndic of the insolvent’s estate, for the costs and charges of the concurso." See also, upon the general subject Canal Bank v. Copelond, 15 L. R. 76; Power v. Ocean Insurance Company, 19 L. R. 28; Fulton v. Her Husband, 7 Rob. 73; Chretien v. Richardson, 6 Ann. 2; Shields v. Lafon, 7 Ann. 1351.

But it is contended in the present case that the resolutory condition, to be ■operative against a mortgagee of the vendee, is required to be notified to the public by a registry of the act of sale, before the mortgage by the vendee is registered. No judicial authority is quoted for such an opinion. No law is cited which, in our judgment, refers in terms or by clear implication to such a necessity.

Registry laws are artificial rules, the creatures only of positive legislation. As they tend to multiply forms in the transmission of property, and to restrict the natural right of man to do what he will with his own, they have seldom, if ever, been extended by judicial construction to cases not within their plain ■and obvious intendment.

It is true the vendor of an immovable or slave only preserves his privilege as against third persons by recording the act of sale. O. O. 3238. But it is impossible to confound the resolutory action with the vendor’s privilege. The former is not a mere appendage of the latter. It is a distinct substantive, and independent right or remedy. “ Le vendeur en effet, ayanticideux droits distinctsj ■celui d’agir pour son payement, en créancier privilegié et non en créancier ordinaire, puis celui de reprondre la chose si on ne le paye pas, la perte du premier le réduit sans doute á n’avoir plus que le second, mais il a toujours ce ■second: il n’est plus que créancier ordinaire, aulieu d’etre créancierprivilégié ; mais il est toujours créancier, il est toujours vendeur non payé, et il peut des lors faire résoudre la vente.” 6 Marcardé, p. 289, O. N. 1056.

The fact that the lawgiver has said that registry shall bo essential to the preservation of the vendor’s privilege upon immovables and slaves, and has not said that the same formality shall be necessary to preserve the right of demanding a dissolution of the sale for non-payment of the price, implies that registry is immaterial to the existence of the latter right. Qui elicit de uno negat de altero.

The argument is substantially the same under our Code as under the Napoleon Code, for the articles relative to both remedies and to the necessity of inscription to preserve the vondor’s privilege, are borrowed from the latter Code. So clear was it under the Erench Code, that the loss of the vendor’s privilege, for want of registry or other cause, did not involve a forfeiture of the vendor’s right to resort to the dissolving condition, that there seems to have been no dissent upon this point for more than forty years among the Erench tribunals and commentators. See Persil (Art. 2103) Duvergier (vente I. 551,) Duranton, (XVI. 362,) Troplong (Hyp. I. 222,) Toullicr (VI. 577,) and the numerous m'réts of various tribunals cited by Marcadé, (loe. ait.) When jurists of a race so much addicted to theoretical speculation, and so little addicted to reverence for each other’s opinions, draw a conclusion from the Code in which they unanimously concur, we may, perhaps, set it down for an obvious truth.

The policy of the law has long been a matter of discussion in France. But it was never supposed there that it was competent for the tribunals of justice to supply what was thought by many to be a defect in the law, giving rise to occasional hardships. The legislative branch of the French government was often appealed to for a reform in this particular, but, for a long time without success. Recently the experiment has been tried, and by Art. 7 of the Transcription law of the 23d March, 1855, it was declared that the resolutory action established by Art. 1654 of the Napoleon Code cannot be brought, after the vendor's privilege is extinguished, to the prejudice of third persons who have acquired rights upon the immovable under the vendee, and have complied with the laws prescribed for the preservation of such rights.

The Legislature of Louisiana has not yet seen fit to impose such a limitation upon the exercise of the resolutory action with regard to immovables and slaves. The dissolving condition for non-payment of the price stands with us, as it stood in France before the law of the 23d March, 1855, a condition wholly independent of the vendor’s privilege, coeval with and parcel of the contract of sale itself. The vendee takes the property subject to the condition in favor of his unpaid vendor; as there is no law requiring a registry to preserve this condition, it follows, according to Art. 3268 of the Louisiana Code, that the vendee can only mortgage the property, subject to the same condition; the general rule of logic and justice, nemo plus juris in alium tramsferre potest quam ipse habit being unqualified in this respect, by any arbitrary rule imposed by the Legislature, the third person who accepts a mortgage from the naked possessor without a recorded title, and afterwards finds it ousted by the effect of the condition on which alone his mortgage had been enabled to acquire possession, has only himself to blame for not having required an exhibition of his mortgagor’s title and receipts for the price. If he suffers, he pays the penalty of his own heedlessness in taking a mortgage upon an immovable or slave from one who displayed no other proof of unconditional ownership than possession merely.

We do not perceive that our laws with regard to the registry of sales affect the present question, Those laws were designed to protect creditors of and purchasers from vendors against the unrecorded claims of sous-seing privé vendees and those claiming under such vendees. If the sale of the slaves in question from the present plaintiff to Portevint Bloodworth is to bo considered null and void, for want of registry, as to persons claiming under Bloodworth who are certaily third persons, then his mortgagees, the opponents B. Toledano & Taylor, have accepted a mortgage a non domino, and are in a worse plight than we take them to be with a mortgage from one who was the owner subject to the dissolving condition.

The laws relative to the registry of mortgages are also, in our view, foreign to the subject before us.

Something has been said about the danger of leaving this tacit right unrestricted by a registry law. Upon this point it is possible that opinions may differ. It suffices for us to say that, when statutes are free from ambiguity and absurdity, we are not called upon to investigate their expediency. Under a gov-government of written laws, the judiciary is but the interpreter of the legislative will. The reform ofthe law, the redress of public grievances flowing logically from existing statutes, are high prerogatives which belong to the Legislative domain.

We deem it proper, however, to observe that we do not think such injurious consequences as some of those which have been surmised can result from the law as it now stands.

The prescription of five years under Art. 3444 of the Civil Code will protect the third possessor of a slave against an action of this character; slaves bought in other States of the Union are not bought subject to the dissolving condition which is peculiar to the civil law; and movables are unaffected by the doctrine of this case. Such property being governed by distinct regulations which preclude it from being followed into third hands by the dissolving condition.

Upon the other points raised by B. Toledano & Taylor, the appellants in this case, we also concur in the opinion of the District Judge. The intervehoys contended that the vendee P. Bloodioorth assigned to his vendor, the plaintiff, his share of James BloodwortKs succession in payment of the slaves, and that her neglect to notify the administrator of that succession of the transfer, was the cause of her having lost the price.

The evidence shows that this was only a mode of payment left to the option of the vendee, rwho bound himself to pay in cash if the amount was not realized to the plaintiff from the source indicated; but that, before entering into the act of the purchase, the vendee,- had put it out of his power to pay the plaintiff in that mode, by assigning all his interest in the succession of James Bloodworth to Moses Greenwood & Go., who have been made parties to this suit and claim the benefit of the assignment, and that no diligence by the plaintiff could have enabled her to get the priority of Moses Greenwood & Go., because they notified the administrator of the assignment to them before P. Bloodworth bought the slaves in question.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed with costs.

It is, further ordered and decreed, that this opinion and decree be forwarded to the clerk of the Supreme Court at Alexandria, in order that the same may be there filed, and notice thereof given in conformity with the agreement of the parties on file.

Merrick, C. J.,

dissenting. I am not able to concur in. the decree pronounced by my colleagues in this very important case.

The plaintiff Eveline Johnson and her brother Poitevint Bloodworth, were children and heirs of James Bloodworth deceased. On the third day of March 1853, at the succession sale of James Bloodworth, deceased, the plaintiffbought the two negroes in controversy, Henry and Epraim. Sometime between the 13th day of May, and the 1st day of October, of the same year, the plaintiff through the agency of her husband executed an act under private signature in these words, viz:

“It is agreed between Poitevint Bloodworth, jr., and Francis Johnson, representing his wife, Eveline Johnson, that Poitevint Bloodworth, jr., shall receive from the estate of Gol. James Bloodioorth late of this parish, deceased, the slave Henry, a negro man aged-about thirty-eight years, for the price of fourteen hundred dollars, and the slave Ephraim, a boy about nine- years, for the price of five hundred dollars, and account to the estate for these respective sums, out of the share coming from said estate to him, the said Poitevint, and if so much shall not come to him, he is to pay thqbalance in cash. The said slaves have been delivered to the said- Poitevint, and he hereby acknowledges possession of the same.
Natchitoches, (Signed.) P. Bloodworth,
Attest— E. Johnson.
Ross E. Burice,

This act was never recorded either in the mortgage or notarial records of the Recorder’s office. On the 8th day of May, 1853, P. Bloodworth being indebted to Moses Greenwood & Go., $2,229 55'and interest, by note, transfered to them as much of his interest in his father’s succession as would be sufficient to pay said note and interest, and authorized and required the administrator to make payment to the holder of the note. This act was recorded in the mortgage records, and notified to the administrator soon after its date, and in consequence thereof, Moses Greenwood & Go., were plaeed by the administrator on the tableau as assignees of the interest of P. Bloodworth, jr., in the succession of James Bloodworth deceased. On the 29th day of June, 1853, P. Bloodworth being indebted to B. Toledano & Taylor, in the sum of $7,500, among other-property, mortgaged these two slaves, then in his possession to them, to secure the said sum of money, describing the slaves in the act of mortgage as inherited by 'him from James Bloodworth, deceased. This mortgage was recorded on the 6th day of July, 1853, in the proper registry of mortgages. Poitevint Bloodworth, jr., died about the middle of October, 1853. The slaves were inventoried as belonging to his estate against the protest of plaintiff’s husband, her agent. The succession of P. Bloodworth, jr., is insolvent and administered by a syndic.

It is evident, that were the plaintiff to claim the price of the slaves in the concurso, she would bo defeated by the recorded mortgage of B. Toledano & Taylor. To obviate this difficulty, she has brought suit against the syndic,, and alleged the sale to P. Bloodmrth, jr., and averred that the price has not been paid, and praying a rescission of the sale under Art. 2539 of the Civil Code. G. Toledano & Tcvylor intervened in the suit, and among other things averred, that they have a better right to bo paid out of the funds in the hands of the administrator than Moses Greenwood & Go., and prayed that the-plaintiffs demand be rejected.

It does not appear that the plaintiff ever notified the administrator of the transfer of Poitevint Bloodworth's interest in the estate to her. Indeed, it does not appear, but the transfer to Moses Qreeivwood & Go., may have been made before that to the plaintiff. The question is presented, whether the vendor who has not recorded either in the notarial or mortgage records of the Recorder’s office, the act of sale executed by him under private signature, can maintain an action to dissolve the sale as against mortgage creditors who have in good faith, had their mortgages recorded in the proper office against the. vendee.

The case does seem to have been decided by our courts, and we are left to-such conclusions as may seem most in consonance with the spirit of our legislation. A similar question arose under the Napoleon Code in France, and for a time raised doubt and discussion, but has been decided in several cases in the affirmative, and those decisions seem to meet the assent of those French jurists whose writings for the present, at least, seem to possess the weight of authority. These decisions, however, are not authoritative expositions of the law for us, and they are to be followed only when their conclusions are supported by reason, and do not conflict with our own laws and the general policy of our system of jurisprudence.

They rest in substance upon the following propositions:

1st That the faculty of dissolving the sale upon non-pajement of the price is in the nature of a condition.

2d. That the vendee cannot transfer to another a greater right than he himself possesses.

In developing these principles Toulier says, “ Oes principes sont conformes á l’exacte justice, et les tiers qu’ils blessent n’ont pas raison de s’en plaindre; car avant d’acquérir ou de prendre pour hypothéque des biens qui n’appartenaient pas incommutablement á celui avec lequel Os ont contráete, ils pouvaient et devaient s’assurer du titre en vertu duquol il était propriétaire.” 6 Toul. No. 577.

Duranton remarks after commenting upon the pactum commissorium of the Roman laws, “ Alais chez nous en l’absence máme du pacte commissoire et quoique le vendeur ait suivi la foi de l’acheteur, en lui faisant terme s’il s’agit d’immeubles, et que l’acheteur ne paie pas au terme convenu, sans avoir juste causo de s’y refuser, le vendeur pout dtimander la résolutión du contract, et par suite, revendiquer les immeubles qu’il a livrés si la íésolution est prononcéc.

Et son droit á cet égard n’eát pas restrcirit á la persortne de l’acheteur et de son héritier seulcment; il est ócrit sur la chose et la suit en quelque main qu’elle passe tant qu’il subsiste. L’acheteur lui-méme n’a pu la transmettre a, d’autres (Art. 2182), ni l’hypothéquer (Art. 2125), que sous 1’affectation du droit du vendeur, qui n’a vendu et livré que sous la condition qu’il serait payé du prix; nemo plus jwis in alium transfers potest qurnn ipse habet. Oe point qui a fait d’abord qiielqite difficulty n’en fait plus anjourd’hui que maints arrets ont confirmé cette doctrine. O'est á l’acheteur d’un immeuble qui le regoitd’un autre atheteur, á se faireroprésenterles quittances decelui-ci; etl’on voit tout de suite que le défaut de representation de ces quittances peut donner une juste crainte a l’acheteur d’étre trouble dans sa possession, et par consequent le droit d’invoquer la disposition principals de l’Art. 1658, que nous venons d’expliquen Le vendeur peut done agir contre le tiers, et il le peut memo directement sans avoir besoin de faire prononcer préalablement la résolution du contrat avec Tacheteur; mais il taut mettre ce derriier en cause, pour établir que le prix n’a pas été payé et que le vendeur n’a pás été satisfait de quelque autre maniére.” «

Are the reasons adduced by the writers-of the French law, such as ought to control the decisions of our courts ? If it were not for the provisions of our law, in regard to the registry of mortgages and conveyances, arid the classification Of the dissolving condition with privileges, there would be no great difficulty in following the French decisions, and in answering the question in the affirmative. We may assume, that the policy of our law, is, as far as possible, to assure the vendee, mortgagee, of privilege creditor, who holds by recorded title, in possession of the right, thus made known to all the world. There is the more necessity for' this, because a very large portion of the property of the citizens of the State consists in slaves, which are regarded as immovables, although they are sribject to frequent changes of place, and ownership ; and much of this kiiid of property has been brought here from other States of this Union, and much held under acts under private signature, and there is not that facility of ascertaining the former proprietors, nor whether some former proprietor may, as ih the case of landed estate, not remain unpaid. In France, where land alone is held by fnany writers to be subject to a dissolution of the contract of sale for the non-payment of the price, in the hands of the third possessor, and where the population is much more permanent, and changes of proprietors much less frequent than our own, there is, correspondingly, much less inconvenience resulting from the rule, than there would be with us, and yet oven the legislative department of that country has been compelled to interpose arid correct what their courts have virtually held to be a casus omissus, and to supply by new enactments the evils resulting from the interpretations of their courts.

The Art. of the Code, upon which this action is based, applying equally to immovables, movables and slaves, is in these words: “ If the buyer does not pay the price, the seller may sue for the dissolution of the sale.” O. O. 2539. Sec, also, 2040, 2041, and 2042. If it is not controlled by other legislation the action must be held to be well founded. The following Articles of the Civil Code, may bo considered as having some bearing upon the construction to bo given to the foregoing' Art. (viz), Art. 2242. “ Sales, or exchanges of real property and slaves, by instruments under private signature, are valid against bone fide purchasers and creditors, only from the day on which they are registered in the office of a notary, or from the time of the actual delivery of the things sold.” Art. 2417. “The sale of any immovable or slaves made under private signature, shall have effect against the creditors of the parties, and against third persons in general, only from the day such sale was registered in the office of a notary, and the actual delivery of the things sold took place. But this defect of registering shall not be pleaded between the parties who shall have contracted in such act, their heirs or assigns who are as effectually bound by a sale under private signature, as If It were by public act.”

Art. 3216 declares, that the vendor of a slave, has the privilege upon the slave, for the payment of the price. Art. 8238, is in these words: “ The vendor of an immovable or slave, only preserves his privilege on the object, when he has caused to be-duly recorded in the office for recording mortgages his act of sale, in the manner-directed hereafter, whatever may be the amount due him on the sale.” Art.. 3314, “ Conventional mortgage is acquired only by consent of the parties ; and judicial and legal mortgages, only by the effect a judgment, or by operation of law. But these mortgages are only allowed, to prejudice third persons when they have been publicly inscribed on records kept for that purpose, in the manner hereafter directed.” Art. 3315. “By the words, third persons, used in the foregoing Art., are to be understood, all .persons who are not parties to the act, or to the judgment, on which the mortgage is founded, and who home dealt with the debtor either in ignorance or Before the existence of this right.”

The Act of 20th March, 1813, provides that all sales &c., which shall not be recorded, agreably to the provisions of that Aet, shall be utterly null and void, to all intents and purposes, except between the parties to the same. The Act of 25th of March, 1810, provides that no notarial act, concerning immovable property, shall have any effect against third parties, until the same shall have been recorded in the office of the Judge of the parish, in which sueh immovable property is situated. 2 Moreau’s Dig, p. 286. 7 N. S» 661. These statutes were reenacted in 1855. See Acts 1855, p. 335, and Revised'Statutes, 453.

I think the object of the Civil Code, and the statutes of 1810 and-1813, was to secure the vendee, as well as all other innocent persons,, against the latest claims of all prior vendors and mortgagees, upon property in the possession of any one holding as owner. It is objected, that no one can convey a greater right to a purchaser than he himself has. The maxim cited, is very far from being of universal appreciation. We know in the matter of sale, that the bona fide purchaser, by an apparent title, a non domino, becomes so far owner, as to make the fruits of the immovable his own, and under a short prescription!, to become the absolute owner, which are certainly greater than his vendor possessed, and the same is conceded as to the recorded mortgage over the vendor’s unrecorded privilege and mortgage. It is not true, under our Code, that the vendee, who has not paid the price, is not the owner of thing, and that, therefore, he cannot convey the property in the thing to another; for, it is expressly declared, that the sale is considered to be perfect between the parties, and the property is of right acquired to the seller as soon as there exists an agreement for the object, and for the price thereof, although the object has not yet been delivered, nor the payment made, (0. O. 2431,) and after such contract the thing sold is at the risk of the buyer. O. O. 2442. Res perit domino. The vendor then conveys to the second vendee that which he has acquired, the property of the thing which is not diverted merely because the price is not paid. If this be so, the vendor then has only a right to look to the thing as a security for the payment of the price. He is under our Oode in no sense the owner of the the thing which he has sold. Now, although in strict law, we may distinguish between the dissolving condition implied for the non-payment of the price, by our law, and the vendor’s right of preference upon the proceeds of the thing sold, yet we think that it was not the intention of the lawgiver, in the provisions of the Oode, in reference to privileges, to draw this distinction, and that he included both terms under the general head of privilege in prescribing the manner in which the vendor could secure his rights.

For the Articles of the Oode prescribing the manner in which the seller may obtain a dissolution of the sale, give a right to demand the rescission of the sale of movables, as well as immovables. O. O. 2542. And under the title of privileges, under the head “ of the privilege of the vendor of movable effects” after providing in what manner the vendor may claim a preference on the price it declares, in Art. 3196, that if the sale was not made on a credit, the seller may even claim back the things in kind, which are thus sold, as long as they are in the possession of the purchaser, and prevent the re-sale of them, provided the claim for restitution be made within eight days of the delivery, at farthest, and that the identity of the objects be established.

In the next two Arts, the Code treats of the same right in reference to goods in bales and packages, and household furniture, &c. Now it can hardly be supposed, that the compilers of the Code would have devoted three out of five Arts., under the head of vendor’s privilege on movables, to the right of vendor to reclaim the goods sold for the non-payment of the price, unless they had considered that right a privilege also, and the maxim qui dieit de uno negat de alterio is without application to the question before us. If it were a privilege in the matter of movables, it could not be the loss so in the matters of immovables and slaves. Hence, when the lawgiver declared that the vendor of an immovable, and slave, preserved his privilege only by recording his act of sale, (0. O. 3238,) and that no notarial act, concerning immovable property, shall have any effect against third parties, until the same shall have been recorded, (Act 1810,) and when he further declared, that mortgages are allowed to prejudice third persons, only, when they are recorded, (G. C. 3315,) inother words, that mortgages shall have effect against third parties, when they are recorded, it is no forced interpretation to hold that the subsequent Iona fide vendee or mortgagee, who has recorded his title, will be protected against a former vendor or mortgagee, as to the unrecorded title, as well as to incumbrances, which have not been made public upon the mortgage records. For the party who has dealt with the debtor, in ignorance of the rights of another, is to he protected. O. O. 3315. This view is strengthened by the following considerations:

We may assume that this was the contemporaneous construction of the legislation upon the subject, for we cannot but suppose, that innumerable actions of this kind would have been instituted, if it had been supposed they could be sustained, for the books are full of cases where the parties have failed (for want of inscription,) in their actions, to recover a privilege for the price upon the thing sold, and this is the first case brought before this tribunal, in which an attempt has been made to defeat a recorded mortgage, or the title of a tona fide purchaser, without notice, by an act of sale not recorded, although it has been for a long time settled, that a suit to recover the price, did not prevent a party from turning to the action of rescission. 15 L. R. 79.

We cannot suppose, that the Legislature would have guarded with so much care the inscription of mortgages and privileges, unless they were to be of some avail when so recorded. Eor example, the recorder of mortgages must give security, 3357, 3858 and by Art. 3328, it is made the duty of “ every notary, who shall pass an act of sale, mortgage, or donation of an immovable, or slave, to obtain from the office of mortgages, of the place where the immovable is situated, or, where the seller, debtor or donor has his domicil, if it be a slave, a certificate declaring the privileges or mortgages, which may be inscribed on the object of the contract, and to mention them in this act, under the penalty of damages towards the party who may suffer by his neglect in that respect.” If any former vendor who holds with unrecorded act of sale, has a right to rescind the sale, the production of the certificate of mortgages so carefully enforced, is of no avail to the purchaser, and the Art. itself, and all the abstru.se learning ap,d provisions of law, on the subject of the inscriptions and erasures of mortgages, p.re absurd and useless.

It may be argued, a conti'cwio, from Arts. 3360, 3302, 3306, that the third possessor is only bound to surrender the property when the mortgage has been recorded. And the Act of 1839, p. 194, section 2, in providing that certain notarial acts, if recorded within twenty days, should not be affected by subsequent .acts, although recorded first, clearly shows that the Legislature at that time thought that a purchaser or mortgagee, acquired rights against all third persons by recording their acts.

If Arts. 3238, 3314 and the Acts of 1810 and 1813, do not protect the tona fide ven.dge or mortgagee, against the unrecorded claims of any former vendor, then the Art. 3194 and 3190 in regard to movables, cannot protect the vendee of a movable against the claim of any former vendor who may have sold on credit, for these Arts, do not so much expressly limit Art. 2539, as do the Arts, and Acts cited in regard to the immovables. A doctrine which would fill our business community with alarm.

The prescription in the action of revendication of slaves, as against a possessor by just title, and ip good faith, is five years. -The introduction of the principle contended for would leave the property subject to a rescission and revendication for five, and perhaps ton years after the maturity of or an unsuccessful attempt to recover the price, a result wholly incompatible with that assurance of title intended by thg provisions of the Code in regard to pre^ scription. O. O. 2218, 3507, 350a.

The policy of our law has always been to place property directly in commerce, and protect the possessor in good faith in his title and property. Hence the provisions relative to substitution, fidej, eopimissa, prescription, partition, &c. The construction contended for is in direct conflict with this policy, as well as the design of the law-giver to protect creditors and others dealing with ope .apparently owner.

The sanctioning of the principles contended for would render insecure the most important interests, and would, as already observed, fill with alarm the holders of mortgage securities and the owners of real estate, slaves and movables. “Without the immediate interposition of the Legislature, no one would feel secure. The recorded title, the probate sale, the certificate of mortgages, -would be as so much waste paper, and another element of suspicion would be .added to our already clouded titles. The holder of personal property would not be in any manner more secure, for any person who had possessed the property within five years previously, could, under the formidable maxim, nemo plus jw'is in alium transfere potest quam ipse habet, demand the thing itself and leave him unprotected by his prescriptions, delivery and payment of price to his immediate vendor.

It would be inconvenient, and often impossible, to obtain in our country the quittances for the price of movables and slaves for five or ten years previous to any sale which might be made and even in regard to immovables with our improvident and migratory population, it could not be expected.

If it is the folly of the subsequent vendee or mortgagee, to take a title or mortgage without causing the quittances of all former owners for five, ten or fifteen years to be produced, and if no one may convey a greater right than he has, then the whole registry law is founded on a mistake and fallacy, for it would be equally the folly of any subseqent purchaser or mortgage creditor, 'that he did not assure himself that the property had not been previously sold, .or mortgaged before he purchased, for no one can convoy to another a greater right than he has, and the possessor had no power to sell or mortgage a second .time.

In reply to the argument that the French jurists are unamimous now in the •construction which they placed upon the Code, I may bo permitted to observe that we have the two statutes of 1810 and 1813, besides many provisions of -our Code different from the Napoleon Code. Moreover, the present construction arrived at under that Code, was not adopted, as Duranton informs us, with■out a struggle there. The great danger is that if wo undertake to follow the •interpretations of the French commentators, as sure guides, because the Napoleon Code originated with them, we shall overlook the distinctive features of our own legislation so different in its tendencies, and find ourselves involved in inconsistencies and often standing directly in the way of the interests and advancement of our own people, whose habits are in so many respects the opposite of those of the French nation.

As already observed, it is not pretended that there were in force in France, Acts corresponding with our Acts of 1810 and 1813, and the Arts, of our Code .are in my opinion essentially different from those of the Napoleon Code. In the Napoleon Code, I find no Arts, corresponding with 3314 and 3315, conferring upon the mortgagee with a recorded title the right of affecting the property as against third persons who have not had their securities recorded. Neither are Arts. 3196, 3197, 3198, classing the dissolving condition as to movables with privileges, in the Napoleon Code.

Although the Code has no where said in express terms “ that registry is essential to the preservation of the dissolving condition ” the law has classed this with privileges, and declared that they cannot exist without registry, and moreoyer declared, that it is essential to the validity of a notarial act to affect slaves as against third persons that it should he recorded, (Act 1810,) that sales under private signature affect third persons only from the day of their registry, (2242, 2417,) and it has impliedly declared that mortgages may affect third persons when they are recorded. O. C. 3319.

Again, it is said that if the Act of 1813 makes the sale absolutely void, then the vendee and mortgagee take nothing'. This is fully answered both by Art. 2417 of the Code, and the same Act, by which it appears that the defect of registry shall only be pleaded between the parties to the Act. Hence, when this argument is resorted to, the reply is, “you put the vendee in possession as owner; we trusted him on the faith of your act, and we have recorded our mortgage, which if it prejudices you is your own fault. You put it in the pow er of the vendee to deceive us and the rest of the community. If you say now you did not sell, your assertion is repelled by the ac.t which you have executed but which you have either dishonestly or negligently withheld from record and publicity.”

In conclusion, I may observe that I consider the construction which I have placed upon the Articles of the Civil Code and Acts of 1810 and 1813, within the letter of their provisions. But were it not within the exact and precise letter of any given phrase, but within the general scope of the whole, it would not be the less our duty to obey the known will of the lawgiver. For if the mind from an examination of the -whole legislation on a given subject has comprehended its spirit and thus ascertained the legislative will, it has learned the law on that subject, and any -wandering- after words and phrases in order to find some other interpretation, or a refusal to obey because the letter of the law cannot be marshalled to embrace a particular word which is still within its general scope, is itself a violation of law. In the case of Holmes v. Wiltz, it was held that an interpretation of a statute which must lead to consequences both mischievous and absurd is inadmissible if the statute be susceptible of another interpretation whereby such consequences may be avoided; that the legislative intention must be honestly sought after and faithfully executed, if not in conflict with a paramount law, and that in cases like that, the court was authorized to search for the meaning not merely in the words of the statute itself, but in the subject-matter, in the history of the legislation thereupon, the purpose of the new law, the reason of its enactment and the evil it sought to remedy.

As B. Toledano & Taylor dealt with P. Bloodworth in ignorance of the plaintiffs rights (3315, O. 0.) and as they have recorded their act and mortgage I think they are protected by Art. 3314 of the Civil Code.


source: Caselaw Access Project

author: Cole, J.

license: Public Domain

text:
    State v. J. Populus, f. m. c.
    In all criminal cases the separation of the jury, though by leave of the court and with the consent of the accused and his counsel, will vitiate the verdict if such separation take place after the evidence has been closed and the charge given.
    APPEAL from the District Court of Rapides, O. H. Ogden, J.

      O. H. Hines, District Attorney, for the State.

      J. G. Manning, for defendant and appellant.
   Cole, J.

The defendant was indicted for wounding, with a dangerous weapon, with intent to kill.

He was convicted and sentenced to the penitentiary for twelve months.

He relies for a reversal of the judgment on the ground, “That the jury separated after they had received the charge of the court, and before they had agreed upon and rendered their verdict.” It appears from the record, that they were permitted to separate from the adjournment of the court, on May 11, until the next morning, when they rendered their virdict.

We consider this objection fatal.

In the case of the State v. Hornsby, 8 Rob. 554, and in that of the State v. Desmond and E. & O. Connor, 5 A. p. 399, it has been decided that in capital cases, a separation of the jury, with or without the consent of the prisoner, after the jurors have been sworn, is fatal to the regularity of the proceedings of the lower court, and entitles the accused to relief. Wo think that in cases not capital, the lower court has the right in its discretion to permit a separation of the jury, after they are empannelled, and before they receive the charge of the court.

We are of the opinion, that in all criminal cases, capital and otherwise, no separation of the jury, after they hare received the charge of the court, can be allowed, and that such separation will vitiate the verdict.

In the case of the State v. Hornsby, the court say;

“In cases not capital, courts may, in their discretion, permit the jury to disperse until after they have received the charge of the court; but they should not be permitted to separate after the charge has been given. In these cases, misconduct on the part of the jury, will set aside their verdict; in capital cases, upon a separation, misconduct and abuse will always be presumed.”

In “ The State v. Crosby et al,” 4 A. 435, the court say : “ It is only in capital cases that jurors are not permitted to separate after being sworn. In cases not capital, it is discretionary with the Judge to permit them to disperse, until he has delivered to them his charge.”

The uniform practice in the United States, appears to be not to permit the jury to separate in a criminal suit, after the case is given them in ehan'ge by the court, without consent of counsel.

This practice would not have been so generally adopted unless it had been deemed necessary for a just protection of the rights of the State and of the accused.

Before the testimony is concluded and the charge given to the jury, it may not be so necessary, in a case not capital, to prevent the jury from separating; for it is not yet known whether the verdict will probably be for or against the prisoner, and it is not so likely that improper influence will be exercised upon the minds of the jurors.

It is entirely different when the testimony is closed, and the charge of the court is given, for then the probable guilt or innocence of the prisoner appears, and the nature of the verdict can be predicted almost with certainty.

We do not think that the consent of the prisoner, or of his counsel, ought to suffice to permit the separation.

In capital cases it has been decided by this court, that the consent of the prisoner or his counsel cannot authorize it, so as to render the verdict valid; the reason given is that the prisoner may be really unwilling to permit thejjiry to separate, but may consent; fearing that his refusal may prejudice the jury against him.

The same reason exists with as much force in cases not capital, and therefore the same rule ought to obtain.

This court has also expressed its opinion, that even in cases not capital, the jury ought not to bo permitted to separate after the charge is given to them.

We are of opinion that a separation of the jury in all criminal cases after the evidence is closed, and the charge has been given to the jury, and before a verdict has been rendered, vitiates the verdict.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury and the judgment of the lower court, in this case, be avoided and reversed.

It is further ordered, adjudged and decreed, that a new trial be granted appellant, and that this cause be remanded to the lower court to be proceeded with according to law.


text:
    State v. Morgan.
    The Clerk of the District Court tendered his resignation to the Judge of the District, who, thereupon, appointed a clei-kfor the remainder of the uuee.pire.d term of the cleric who had resigned: Held that the resignation was properly tendered to the Judge, who is empowered, by Art. 79 of the Constitution, to fill any vacancy that may occur subsequent to an election, and the person so appointed holds his office until the next general election.
    It is not requisite that the person so appointed by the Judge shoud be commissioned by the Governor,
    APPEAL from the District Court of Rapides,. O. If. Ogden, J.

      Hyman & Gazabat, for appellant,
   Cole, J.

The defendant was indicted at the November term, 1866, of the District Court, for buying and receiving from a slave, one bag of corn, on 11th November, 1866, without the owner’s consent.

He was found guilty and sentenced, and has appealed.

There is a bill, of exceptions, in reference to the organisation of the court, and qualification of the person then acting as clerk. It is as follows :• “ Be it remembered, that before the trial of the case,, the defendant objected to proceed to trial on the ground that the court was not legally organised. That the Clerk of the Court is G. E. Joüett, Esq., who has not been in attendance, nor his deputy, as such, during the time of the presumed session of the court.”

“And defendant objected to M. R. Ariail, Esq., swearing the jurors who tried this case, and the witnesses, on the ground that M. R. Ariail, who was then acting as clerk, was not the Clerk of the Court; Joüett,- the clerk, never having legally resigned his office; and the court having no power to appoint a clerk until a vacancy occurred in the office of clerk. That H.- R. Ariail could not have acted as clerk,, (even if he had been legally appointed by the court,) because he was-not commissioned by the Governor.”

“But the court overruled the defendant’s objections, and permitted the said M. R. Ariail to act as clerk, and to swear the jury and witnesses in this Case for the following reasons, to wit:

“That on the 3d of May, 1867, the aforesaid- G. E. Joüett, at that time the Clerk of the Court, addressed to the presiding- Judge a letter tendering his resignation as clerk, to take effect from that day, which letter was handed to said Judge on the 4th of May, the day fixed by law for the session' of the court, and on the same day the Judge, acting under the power and authority vested in him by the 79th Art. of the Constitution- of the State, proceeded to fill the of-flee by appointing 21. £ Ariail, Esq. Clerk of said Court, for the remainder of the unexpired term of the said G. E¡ Joüett, resigned-, as aforesaid, and the said 21. £. Ariail having accepted the appointment, the oath- of office was administered to him by said Judge, after which he entered upon the discharge of the duties of said office. And the said Judge hereto annexes copies of: 1st. The letter of O. E. Joüett, resigning his office. 2d. Appointment of M. £. Ariail, as clerk. 8d. Letter of same, accepting the appointment, 4th. Oath of office of If. £. Ariail, and bond, with approval of the Judge,- the said copies to be taken as a part hereof. The said Judge further states and certifies to the Supreme Court, that the said- M. £. Ariail was, at the time of said G. E. Joüett's aforesaid resignation, the Deputy Clerk of the Court, regularly appointed and qualified as such.”
“ To which opinion, ruling and action of the court, the defendant excepts and files this his bill of exceptions, to be signed according to law,- which is done in open court, this 15th of May, A. D., 1857.'
(Signed) O. N. Ogdex, Judge.”

We are of opinion,- that a Clerk of the District Court can tender his resignation to the Judge of the District in one of the parishes of which such clerk exercises the duties of his office.

We are aware of no law which obliges him to send his resignation to'the Governor.

It appears proper, that the resignation should be sent to' the District Judge,, inasmuch as Art. 79 of the Constitution of the State empowers the' Judge of the court to fill any vacancy in the office of clerk of his court, that may occur subsequent to an election, and the person so appointed holds his office until the next general election.

There was then a vacancy the moment Joüett tendered- his resignation to the District Judge.

Wo are acquainted- with no law, which requires one appointed- by the Judge, to fill the vacancy of a clerk who has resigned, to be commissioned by the Governor.

Perhaps, as a measure of precaution,- evidence of the appointment should be transmitted- to the Department of State.

The defendant also excepted to the refusal of the Judge to charge the jury, that the Act of 18th March, 1852, was repealed by the Act of 19th March, 1857.

The Act of 18th March, 1852, No. 326, and the Act of March 19, 1857, No. 187,- are on the same subject matter; and sec, 5 of the Act- of March 19, 1857, declares “ That all laws contrary to the provisions of the Act, or on the same subject-matter, be and the same are hereby repealed.”

The alleged offence of defendant was committed against a law which has been repealed, and this court is obliged to reverse the judgment.

We have recently, at Monroe, examined the question at largo in the case of “ The State v. the slave, King," in which we have given our reasons for a similar decision.

Vide also, the case of “The State of Louisiana v. Cecilia Clay, f. w. c.,” decided in June last at New Orleans.

It is,- therefore, ordered,- adjudged and decreed, that the verdict of the jury and the judgment of the court thereon in this case, be avoided and reversed. It is further ordered, adjudged and decreed, that the prisoner and appellant, Francis D. £. Morgan,- be discharged from custody.


author: Merrick, O. J.

text:
    John Osborn v. A. S. Moore.
    Where it appears that the plaintiff, in obtaining a writ of arrest, acted in good faith and upon an apparent cause of action, in some degree, arising from defendant’s own conduct and declarations, he ought not to be condemned to pay damages. Nor are the jury at liberty in assessing damages to estimate the traveling expenses and loss of time of defendant in preparing his defense and attending court. In the eye of the law the expenses of a suit which a party incurs, are, as a general rule, considered as covered by the taxed costs.
    1 PPEAL from the District Court of the Parish of Winn. Trial by a jury.

      Ohaplin, J. IF. B. Lewis and IF. B. Hymcm, for-plaintiff and appellant.

      Mercer Oaoifteld, for defendant.
   Merrick, O. J.

The plaintiff’s original demand against the defendant for seventy dollars is not within our jurisdiction.

On the defendant’s reconventional demand for damages for the alleged illegal arrest in this ease under the writ of arrest, we are of the opinion that the plaintiff was acting in good faith and upon an apparent cause of action, and that the defendant’s conduct and declarations were, in some measure, the cause of his arrest. We come the more readily to this conclusion, against the verdict of the jury, because the testimony consists in part of depositions which we feel ourselves equally competent with them to consider, and because the verdict for the amount rendered ($150) cannot be maintained on any principles. The defendant, upon being arrested, appears to have been immediately discharged by the Sheriff on giving up to him property as security, for his appearance, valued at $100. The jury were not at liberty to estimate the traveling expenses and loss of time of the defendant in preparing his defence and in attending on the court. The very nature of judicial proceedings presupposes that suitors will be put to some trouble in defending and prosecuting suits, but as a general rule, these damages are, in the eye of the law, supposed to be covered by the taxed costs. It is desirable that courts of justice should be open to all men, and that suitors should not he deterred from pursuing their rights through fear that they should be compelled to pay for the loss of time of their adversary, nor from using, in good faith, the process of the court and the means of redress prescribed by law, through apprehensions that they should be mulct in vindictive damages, if from any unforeseen cause, they should fail in their action.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that there he judgment upon the defendant’s reconventional demand in favor of the plaintiff and against the defendant, and that the defendant pay the costs of the appeal and his reconveniional demand in the lower court,


author: Spofford, 3.

text:
    Dr. Forest Manice v. George Duncan, f. m. c.

      27on constat that the endorser of a promissory note against whom a solidary judgment has been attained with the maker, was a mere surety for the latter.
    Suffering a sale to be postponed, after a seizure under execution, is not per sc a prolongation of the term of payment to the judgment debtor, when the sale takes place sooner than it could have been forced in the usual course -of legal proceedings. Nor will a mere waiver of forms and delays in the sale under execution discharge the co-debtor, where no resulting injury is shown. “Where an execution has been returned, it will be presumed, in the absence of proof to the contrary, that it was ordered to be returned for sufficient reasons. A mere failure to execute the judgment will no more release the co-debtor than a forbearance to sue would have discharged the endorser.
    APPEAL from the District Court of Natchitoches, Ogden, J.

      A. 3L Pierson, for plaintiff and appellant.

      Hamilton, Ohwplin and Morse, fnr appellee.
   Spofford, 3.

This is an hypothecary action, having for its object to subject a town lot and house in Natchitoches, and a slave named Harriet, to the payment of a certain judgment obtained in 1839, by the plaintiff, against William Long, the former owner of the property, and duly inscribed and re-inscribed in the mortgage office of the Parish of Natchitoches.

There is no dispute as to the former existence of the judicial mortgage; but it is contended on behalf of the third possessor, Mary Hilen Long, and the judgment debtor, William Long, (who intervenes to defend the title of the the former,) that the judgment as to him is extinguished, and that the judicial mortgage has therefore ceased to affect the property. There was a verdict and judgment below sustaining this defence, and the plaintiff has appealed.

The original judgment referred to, was rendered in favor of this plaintiff, against David O'Neill, Lewis Q-. De Hussy, Willimn Long and John Tuelcer, in solido. But the petition of Manice, alleged that the claim was based upon a promissory note made by David O'Neill, and endorsed by the the other defendant.

The defence now interposed by Long, as a party to the hypothecary action, is that he was a mere surety in the judgment for O'Neill, the principal debtor, and that all liability on his part, under the judgment rendered against himself and O'Neill, in solido, has been extinguished by the indulgence of the plaintiff, the judgment creditor, towards O'Neill, by prolongation of the time of payment, by the release of a seizure by amicable arrangement, and by laches generally, whereby a subrogation in his own favor to the rights of the plaintiff against O'Neill, has been rendered impossible.

Upon this issue, the intervenor, Long, assumed the burden of proof; and it w7as incumbent upon him to make out a clear case of release,

In the first place, he should have shown that he occupied-and still occupies the position of a surety, in order to invoke the rules of the Civil Code under that title. He has not done so. It is not alleged or proved that he wras originally an accommodation endorser of O'Neill. For aught that appears, he might have been as much interested in contracting the debt toward Manice, as O'Neill himself. The judgment is a solidary one, and if it did not change his attitude relatively to O'Neill, it fixed his liability as an absolute debtor to Ifenice jointly and severally with O'Neill. The utmost that can be said is, that prior to the judgment he appeared as an endorser of a note of which Maniee was the maker. Non constat, that he was a mere suretj'. See Dubuch v. Godchaux, 6 Ann. 780.

Again, if it be conceded that his position as endorser towards the holder was unaffected bjr the solidary judgment rendered against himself and the maker, and that he can exact the same diligence from the judgment creditor in the pursuit of the maker after as before the judgment, still the burden is upon him to show, by satisfactory evidence, the giving of time, for a consideration, to his co-debtor, O'Neill, or other acts of the creditor, whereby his own condition was rendered more onerous. Woodbury v. Friend, 19 L. R. 496. This he has not done. The evidence is obscure and quite too indefinite to fix upon the plaintiff the commission of acts which would discharge the intervenor, considering him still as an intervepor. It is not made reasonably certain that the horses alluded to in argument were seized under an execution against O'Neill in favor of Maniee, or released by the latter’s orders. It is not clear that Maniee oy his attorney, ever took the Luelcett claim under an agreement to credit its proceeds on the judgment and then gave it up, or lost it by neglect. It is not shown that any injury was done, or any loss sustained by the consent of O'Neill to the sale of the Luelcett claim seized under execution against him before the legal time for the advertisements would have expired,'or by the subsequent postponement of the sale, by consent of parties, for five days longer than the term first agreed upon, the new term being still within the delay which the law would have required. Suffering a sale to be postponed after 3, seizure under an execution, is not per se a prolongation of the term of payment to the judgment debtor, when the sale takes place sooner than it could have been forced in the usual course of legal proceedings. And it is inadmissible to say that a mere waiver of forms and delaj^s in the sale under execution when no resulting injury is shown, will discharge the co-debtor. The same thing may he said of the return of an execution issued upon a twelve months’ bond given by O'Neill; in the absence of proof to the contrary, we must believe that it was ordered to be returned for sufficient reasons.

And a mere failure to execute the judgment, cannot of itsejf, absolve, the co-debtor, any more than a forbearance to sue before judgment would have discharged the endorser.

The return of the Sheriff that a writ of fieri facias was satisfied pro tanto by the taking -of a twelve months’ bond, cannot override the law, which declares that a twelve-months’ bond does not operate a novation or extinguishment of thp judgment under which the execution issued.

It was the business of the intervenor, under his allegations, to show an agreement on the part of plaintiff to give time to O'Neill for a consideration, or some aot which operated to his injury by impairing rights to which ho should have been subrogated. He has failed to show either. If he was the surety of O'Neill, as his argument assumes, ho could, so far as the record informs jjs, by paying the judgment which he was legally bound to pay, have been subrogated to all the rights of the judgment creditor, unimpaired by any act of the latter.

There was no transaction or compromise between the plaintiff and hjs judgment debtor, O'Neill,

It is proper to remark, without expressing our concurrence or dissent, since ■¡the views we hare already presented make it unnecessary for us to decide upon that point, that the latest adjudged case to which we have been referred in our ¡State reports, ¡affirm the doctrine of Judge Story, in contradiction to one or two previous decisions: “Even a valid agreement to give time to the maker, or to-■a prior endorser, will not discharge a subsequent endorser, or affect the rights of the holder, when the indulgence is granted, or agreed to be granted, after such subsequent endorser has been fixed with a final judgment against him at the suit of'.the holder.” Story’s Prom. Notes, §417, cited in th& Louisiana State Bank v. Haralson, 2 Ann. 457. Contra Gustine v. Union Bank, 10 Rob. 412.

Prescription cannot avail the third possessor in this caso. Bibb v. Union Bank, 8 Ann. 334. Moreover, Mrs. Long acquired her title to the town property within ten years previous to this action. The judgment was not prescribed.

It is.idle for her to complain that one of plaintiff’s counsel released the judicial mortgage so far as it bore upon one portion of Long's property, before she acquired the property now attached and which she bought under mortgage certificates which notified her of the present incumbrance.

It is, 'therefore, ordered and decreed, that the judgment appealed from be reversed; and it is further adjudged and decreed, that the plaintiff’s judicial mortgage ibe recognised as affecting the town lot and improvements and the ■slave Harriet described in his petition, and that the said property be seized .and sold to -satisfy the judgment in favor of Dr. Forest Manice against William Long, for the sum of five hundred dollars with five per cent interest thereon ■form theü3d August, 1838, until paid, and four dollars and fifty cents costs of protest and costs of suit, unless -within ten days after notice of this judgment the defendant heroin shall pay and satisfy said judgment; and it is further ■ordered and decreed, that the defendant pay costs in both courts.


author: Merrick, G. J.

text:
    Succession of L. A. Rachal.
    An Administrator dies without having rendered his account. An Administrator is appointed for his estate. The only regular account the latter can render is of the succession of which he is the adoninistrator. By pursuing the forms of law, his account of this administration may bind such persons as are bound to take notice thereof; but lie can bind no one by a pretended account of the administration, by his intestate and himself, of a succession of which he himself never was the legal representative.
    APPEAL from the District Court.of Natchitoches, Chaplin, J.

      Hamilton S Chaplin, for appellants.

      A. H. Pearson, for administrator, ■appellee.
   Merrick, G. J.

L. A. Racha! .and Louis Collier, were commercial partners. Rachal died in 1853. J. B, Anty was appointed administrator of the succession of Rachal in January, 1854. Anty died, and William P. Morrow was appointed administrator of L. A. Rachal’s succession in December, 1854. P. Oscar dialer, was appointed .administrator af Anty's succession. This last named person having obtained from Collier the partnership accounts, employed one Mwrphy to collect them and procure their acknowledgement and thereby incurred a debt to Mmphy for $203, on this account. Afterwards 0haler filed an “ account of the administration of J. B. Anty as administrator of Louis Alexander RaehaVs succession.”

In this account he proposed to return to the administrator of Raeha'l the acknowledged accounts with a list of those insolvent, or otherwise not collected, and also placed Murphy thereon as a creditor for the amount due him, and made publication and cited the heirs precisely in the manner he would have done, had he been administrator of RaehaVs estate instead of that of Anty. The surviving partner, Gallier, opposed the account because, as he alleged, the partnership was charged with a sum of over $200 to Denis V. Murphy, when it should be paid by the administrator himself, and because Anty’s succession was responsible for the accounts not collected.

The account was homologated and the administrator was allowed to pay over to the administrator of Rachal the assets, and the decree recognized the debt of Mmphy as a just debt against the succession of L. A. Raahal, to be paid in the due course of administration. Qallier appealed. No injustice has been done Qallier by the decree of the lower court. He himself handed the partnership accounts to Ohaler after Morrow was appointed administrator. He cannot complain, therefore, that they were placed in Mmphy’s hands to procure their acknowledgments and thus interrupt prescription. Neither does the decree against RaehaVs estate so far as we can now perceive prejudice him in those respects of which he complains.

But we must not be understood as sanctioning a proceeding so extremely irregular as this. Ohaler could bind no one (except, at least, they were regularly '■'cited,) by his pretended account of his and Anty’s administration of RaehaVs ^succession. The only regular account which he can render will be of Anty’s 'su^ession, of which he is administrator. 1 Rob. 404. By pursuing the forms ',o| 'law his account of his administration of that estate may bind such persons 'as are bound to take notice of the same, but he cannot, by a mere publication, ‘bind the administrator of RaehaVs succession to pay out of that estate a sum "of■ money to a third person. As the judgment rendered cannot bind the ad- • "ministrator of RaehaVs succession, it cannot as a judgment, even incidentally, bind Qallier, to the payment of the $203 allowed Murphy in this form of proceeding against RaehaVs succession.

The administrator of Rachal is no party to the proceeding and the heirs of Rachal who have been cited have not appealed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed with costs.


author: Buchanan, J.

text:
    The State, on the relation of F. Vienne, v. S. M. Hyams.

    The Act of 18£6, prescribes the mode of proceeding in contesting the election of a Sheriff. The Supreme Court is not the proper tribunal to entertain such a contest, and cannot go behind the commission to examine the proof upon which the governor acted in issuing it.
    APPEAL from the District Court of Natchitoches, GhwpUn, J.

      W. J. Hamilton, for plaintiff and appellant.

       This case was taken to New Orleans, with .the supposed consent of the parties. An opinion was prepared by Mr. Justice Buchanan, and concurred in by all the Judges, but no written consent of parties being found in the record, it was not read. That opinion is now adopted and read as the •opinion of the court.

   Buchanan, J.

Mandamus from the Sixteenth Judicial District Court, holding sessions in the parish of Natchitoches, sued out by a party who alleges that he was elected Sheriff of the parish of Natchitoches, in November, 1853, and commissioned by the Governor as such, against a person who detains the keys of the prison of said parish, of which by law the Sheriff is keeper.

The respondent denies that relator was legally elected' and commissioned as Sheriff of the parish of Natchitoches. He alleges that he himself was a candidate for said office, hut does not allege that 7ie"tvas elected. He' claims simply to hold over, in virtue of a former commission, until a Sheriff be legally appointed.

The appeal turns altogether'upon a bill of' exceptions to the refusal of the District Court, to receive evidence of the returns of election, upon' which the Governor issued the commission to the relator.

The ruling of the court below was correct. The Act of 1846, p. 116, prescribed the mode of contesting this election of Sheriff, which the' parties a was held in November, 1853.

The record shows that in January, 1854, the Governor issued a commision to the' relator, as having been elected Sheriff; and the respondent does not pretend that he or any other person has contested the election. Had he done so the matter would, under the law, have been submitted to' a jury in the District Court. The Supreme Court is not the tribunal to entertain such a test, nor is' this the proper form of proceeding.

We are unanimous in the opinion, that we cannot go behind the commission to examine the proof upon which the Governor' acted in issuing the relator’s commissioh and to reverse'his decision.

It is, therefore, adjudged and decreed, that the judgment of the District Court he affirmed; and that the appellant, Samuel M. Hyams, pay costs in both courts.


author: Oole, J.

text:
    State v. T. Sullivan et als.
    The State has a l-iglitto recover legal Interest on a forfeited hail bond frono tlie- principal' and snretjr therein, from the date of the judgment.
    APPEAL from the District Court of Rapides, Ogden, J.

      M. Ryan, for defendants and appellant.
   Oole, J.

This is an appeal from a judgment in solid»T against the principal and securities on a bail bond.

The only point on which appellants rely in this court, is as to the legality of that part of the judgment which allows interest from the day of judgment.

They contend, that the amount of the bond is a penalty which the law- imposes on them; that its exact amount is prescribed by law, and the lower court had no right to make it more onerous by obliging them to pay interest;.-

They further aver, that there is no analogy between this and civil cases, in which the law expressly provides, that interest shall be paid on.- a debt from, the time it is due.

We are of opinion that the judgment is correct.

It is true, that the exact amount of the bond is fixed by the Judge, who-hails a prisoner, and the security signs for a particular sum, hut when-tho bail bond is forfeited, it then becomes a debt due the State.

There is no reason why the State should not be entitled to the same privileges as its citizens, with relation to the right of receiving interest on-debts, due it.

There is nothing in the law which excepts the State from, the benefit of the-Statute, which declares that all debts shall bear interest at the rate of five percent. from the time they become due, unless otherwise stipulated.

As then the bail bond when forfeited, is a debt due the State; it bears- legal interest from the day of its forfeiture, for then it became due;

This does not render the surety responsible beyond the1 amount of his obligation ; for when he signed the bond-, lie is supposed to have known the- law, and to have boon aware that he was contracting not only to pay the amount of the bond, in the event of its forfeiture, but also legal interest thereon- from-the time the judgment of forfeiture rendered it a debt due the State.

When a party binds himself, he is always supposed to do it in accordance with and submission to all the laws that may in any way affect his contract.

It is, therefore, ordered, adjudged and decreed, that- the judgment-of the lower court he affirmed with costs.


author: Spoffoed, J.

text:
    Joseph Carmouche, Administrator, et al. v. Cydalise Carmouche et al.
    A donation of a slave with the reservation of the usufruct to the donor, during1 his life, is radically null.
    APPEAL from the District Court of Avoyelles, Ogden, J.

      Barlow & Waddill, F. Gannon and W. F. Goohe, for plaintiff.

      II. & 8 Taylor, for defendants and appellants.
   Spoffoed, J.

In 1831, GUment Garmouehe, ancestor of the plaintiffs, made a donation inter vivos, to his daughter Oydalise, (one of the defendants,) of his slave Helene, then aged about thirty years. This donation was made with the reservation of the enjoyment or usufruct of the slave to the donor, for the term of his life.'

Pour or five years after the date of this donation, Helene gave birth to a child named Claire, also a defendant in this suit.

Glement Oa/rmouohe, died in 1854; Helene always remained in his possession as his slave. Glair grew up in the same cabin with her mother, and remained in the possession of GUment Garmouehe, until about the period of his death. She did light work about the house. The evidence concerning her treatment is somewhat contradictory. Some of the witnesses speak of her as Garmouehe's slave, although indulged as a house servant; whilst others say, she was treated as a free person, and spoken of in the family as free.

But we think it clear, upon the whole, that she never enjoyed absolute freedom at any rate, until shortly before the death of Garmouehe. She was born a slave; she lived with a master, who had and exercised, occasionally at least, the right of controlling her. The donation of her mother to the defendant, Cydalise Garmouehe, was radically null. C. C. 1524; Dawson v. Holbert, 4 An. 36; Haggerty v. Corri, 5 An. 433. As it conveyed no title to Oydalise, the latter had no power to emancipate Glaire, which she attempted to do by selling her to herself on the 17th October, 1853.

The attempt of Glair to buy horself, shows that she did not then consider herself free. This transaction was a palpable effort to evade the law which restricts the right of manumission. In the January preceding, GUment Qw'mouehe had applied to the Police Jury of his parish for permission to emancipate Glair, which was refused. He undoubtedly desired and intended to give her her freedom, hut it has never been lawfully accomplished. The District Judge thought that she could not invoke the prescription established by the Article 3510 of the Code, until she attained the age of thirty years, as the Article 185 prohibits the emancipation of slaves under that age. However this may be, we find that she has not been in the enjoyment of her liberty adversely to her master, for the space of ten years prior to the institution of the suit, and that the master had not lost possession of her from her birth, for any period up to a short time before his death.

The action is not, therefore, barred. O. O. 3510.

Judgment affirmed.


author: Merrick, C. J.

text:
      John W. Martin v. H. & L. Bryan.
    An action to recover wages of the officers-, sailors and crews of ships and other vessels, is prescribed in one year, whether they are employed by the season or by the month.
    APPEAL from the District Court of Natchitoches, Chaplin, J.

      Hamilton & Chaplin, for plaintiff.

      J. B. Smith, for defendants and appellants.
   Merrick, C. J.

The plea of prescription must be sustained.-

The action is brought to recover $8,100, the balance of wages (after allowing a credit of $300) alleged to be due the plaintiff for services as a pilot on Red River,' on the steamboat Bello Gates, for the season of 1855 ; that is, from January until about the first of September of that year. Petitioner further alleges, that he was discharged' before the expiration of the season, without cause. The plaintiff’s cause of action, accrued when he was discharged. 1 Rob. 321. As he went into the employment of the owner of- the steamboat Magnolia Branner, in May, 1855, from whom he received $750,. he must have been discharged before that time. Service of citation was made 21st of August, 1856. Without, therefore, relying upon the testimony of Adam Leonan'd, (which appears to us free from suspicion or bias,) we find that the prescription of one year, under Art. 3499 C. C., had elapsed, and that the plaintiff’s action was barred. 10 Rob. 53 ; 11 Rob. 403.

But it is said the contract was by the season, and, therefore, not covered by the Article of the Civil Code in question. This Article applies “to the wages of the officers, sailors and crew” of ships and other vessels. It does not distinguish whether those wages are for services by the month or the season, and we cannot distinguish where the law does not distinguish. C. C. 8, 20 ; 6 Toul. 75.

Again, it is said that one of the defendants was absent from the State, and, therefore, the maxim conVra non mlentem agere, non eurrit prescripts applies. The plaintiff, in his petition, alleges that the defendants are residents in the parish of Natchitoches. Service was made upon a free white person residing with them at their domicil, and there is nothing to show that the service of citation might not have been made at any time after the cause of action accrued, as well as when it was made.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed; and that there be judgment in favor of the defendants and against the demand of the plaintiff, he paying the costs of both courts.


author: Sí’OM'OKD, J.

text:
    H. Gilly v. George Berlin.
    A commission merchant cannot charge a planter for insurance unless he was instructed to insure, or a subsequent ratification by the latte'r is shown. Eight per cent, interest, and two and one-half per cent, commission, avowedly charged for advancing, taken together constitute an usurious charge.
    APPEAL from the District Court of Avoyelles, Ogden, J.

      II & S. L. Taylor\ for plaintiff.

      E. JT. Gullom and W. IS. Gooice, for defendant and appellant
   Sí’OM'OKD, J.

This suit is based upon a commission merchant’s account against the defendant, his constituent. There was judgment for the plaintiff, .and the defendant has appealed.

The appellant complains of but throe items, to wit, an item of $31 50 paid for insurance upon a gin-house belonging to the defendant; an item of $50 21 commissions for advancing money; and a sum of $82 09 alleged to have been charged as interest in excess of the legal rate, making a total of $163 80, which the appellant asks to have deducted from the judgment rendered against Mm by the District Court.

It is conceded, that no instructions were given to the plaintiff to insure the gin-house, as was done, for tho year beginning August 18th, 1854, and ending 18th of August, 1855. But the plaintiff contends that, as he had instructions to insure on a previous occasion, it was his duty to continue to insure until instructed otherwise. That might have been a correct conclusion under other •circumstances. But here the plaintiff had been acting as the factor of the •defendant, since 1850. He was never instructed to insure the gin-house until January, 1854, and then the instruction would appear to have been special, not to insure by the year, but to take out a policy only until the 18th of August, 1854. There were no business transactions between the plaintiff and •defendant, after the 17th June, 1854. If the plaintiff had failed to insure for the year, between tho 18th of August, 1854, and the 18th of August, 1855, ■under these facts, and the gin-house had been burned, we do not think the plaintiff could have been held liable for the loss. If it was not his duty to insure, and he had no instruction to do so, he cannot recover, unless there has been a subsequent ratification express or implied. Binding- none in the record, we conclude that this charge must be disallowed.

As to the commissions and interest, it is clear that eight per cent, interest and two and a half per cent, avowedly charged as commissions for advancing, taken together, constitute an usurious charge. The-commissions for advancing •money must bo disallowed; and, there being no written agreement to pay a conventional interest of eight per cent, the interest charged must be reduced to the legal rate. Patterson v. Leach, 5 An. 547; Barrett v. Chaler, 2 An. 874; Brander, Williams & Co. v. Lum, 11 An.

It is, therefore, ordered, that the judgment of the District Court be avoided and reversed. And it is now ordered, adjudged and decreed, that tho plaintiff recover of -the defendant the sum of one thousand and fifty-six dollars and eighty-three cents, with interest thereon, at the rate of five per cent, per an-ram, from the 28th of March, 1850, until paid, and the costs of suit in the District Court; the costs of this appeal to bo borne by the plaintiff and appellee.


author: Meekick, O. J. Spoffobd, J.,

text:
    T. Lacour et al. v. Heirs of G. Lacour, pêre.
    The partition spoken of by Art. 1449 O. 0., applies only to partitions regular in form, as donations inter vivos or mortis emisa, and not to a mere division of property without writing. Such divisions can only give rise to collations among the heirs, whenever a definitive partition is made. This case remanded for such partition under the plaintiffs prayer for general relief.
    APPEAL from the District Court of Nachitoches, Ohaplin, J.

      JE Saffonl, for plaintiffs and appellants.

      J. B. Smith, for defendants.
   Meekick, O. J.

In the month of March, 1840, Gasparite Lacour, pere, made a division among his children and grand-childrcn, his presumptive heirs, of $48,000, in notes and obligations on various persons, it being the. principal part of his estate.

No notarial act of this partition was made, and the only written evidence of it is an unsigned memorandum of the amounts which he distributed to each heir.

The plaintiffs in this action, representing persons who were minors at the time of the informal partition, complain that the promissory notes which were received by their tutor and tutrix at the division, were, for the most part, on persons insolvent, and prays that the other heirs he decreed to contribute such sums as will equalize the shares of the heirs, and for general relief in the premises.

The testimony is somewhat voluminous, but the view we take of the case, renders it unimportant at this time to analizo it, or express an opinion as to its effect on the question of the solvency or insolvency of the debtors.

The District Court being- of the opinion that relief could not be granted without an estimation of the property partitioned, and moreover that the plaintiffs could not recover unless it was alleged and proved that their co-heirs had received more than the disposable portion, which he thought had not been done, gave judgment in favor of the defendants, dismissing plaintiffs’ demand.

The plaintiffs have appealed.

The partition spoken of by Article No. 1449 of the Civil Code, and on which the District Judge principally based his decree, applies only to partitions regular in form, as donations inter vivos or mortis causa. It cannot be understood of a mere division of property without writing-, like the one in question, in the present case. C. C. 1718, 1309, 1310.

We consider, therefore, the division made by Gasparite Lacour, pere, in 1840, as only giving rise to collations on the part of those who received the respective claims allotted them, and not as a partition itself. It must follow that the heirs are bound to collate th£ value of the .effects received by them respectively, according to the rules governing collations, whenever a definitive partition is made. Although the proceeding was not formally commenced as a suit for a partition, the evidence satisfies us that one should be ordered, and we think the proceeding may be continued under the prayer for general relief, in plaintiffs’ petition. O. O. 1218, 1219, 1438; Kenner’s Digest, p. 781, No. 6.

We do not wish, in the present state of the case, to express an opinion further upon the facts, but prefer to leave them open for the action of the District Court.

■It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and that this case be remanded to the lower court, with directions to refer the case to a notary public for an inventory and partition, and to be further proceeded in before said District Court, according to law. And it is further ordered, that the defendants pay the costs iof appeal.

Spoffobd, J.,

concuring. I am under the impression that the plaintiffs sue, in affirmance of the informal partition, and are only seeking to enforce the mutual warranty implied between the parties to a definitive partition. Considering the action in this aspect, the informalities alluded to might be considered as waived, and the partition ratified by the heirs, who are mi jw’is. If so, the case might now be decided upon this record. But my colleagues being of a different opinion, rather than delay the cause another year, I assent to the decree remanding it, as the just rights of the parties may perhaps be more speedily adjusted by this course.


author: Spoffobd, J.

text:
    J. H. Heald v. W. P. Owings et al.
    k'he wife, whether separated in property by contract or judgment, or not separated, cannot bind herself for her husband, nor conjointly with him for debts contracted by him before or during the marriage. C. O. 2412.
    APPEAL from the District Court of Natchitoches, Chaplin, J.

      H. Safford, for plaintiff and appellant.

      J. B. Smith, for defendants.
   Spoffobd, J.

The only controversy here presented, is as to the liability of Mrs. A. S. Otoings, for an account made out by the plaintiff against her husband and herself jointly.

It is alleged, that she bound herself for the account by a letter to the plaintiff, promising to pay such debts as her husband might contract “ for acceptances, advances and supplies for plantation purposes.” This letter was written just before instituting a suit against her husband for a separation of property. We concur with the District Judge, that such a promise was within the prohibition of the Article 2412 of the Civil Code.

It does not clearly appear that the debts contracted by her husband enured to her separate advantage, or to the amelioration of her paraphernal estate The plantation itself was not paraphernal property at the date of the account. Nor does it appear that the items of the account either before or after her petition for a separation of property was filed were for such expenses as she was ■bound to bear. The cases of Dickerman v. Keagon, 2 An. 440, and Daily v Pearson, 5 An. 125, were dissimilar to this in their facts.

Judgment affirmed.


text:
    M. A. B. Stone and Husband v. J. M. B. Tucker, Under Tutor.
    A party who has appealed from a judgment homologating the proceedings of a family meeting, cannot, at the same time, carry on an action to annul these proceedings. The action of nullity will be dismissed on the exception Us pendens.

    APPEAL from the District Court of Natchitoches, Chaplin, J.

      Hamilton & Chaplin and P. A. Morse, for plaintiffs and appellants.

      J. G. Campbell, for defendant.
   Cole, J.

This is a suit to annual certain portions of the proceedings of a family meeting.

The defendant filed the exception of u lis pendens."

The lower court sustained the exception, and plaintiff has appealed.

There is no error in the judgment.

An appeal, allowed by the District Judge from an order of the Clerk, homologating the proceedings of said family meeting, is now pending.

The present suit grows out of the same cause of action.

Plaintiff had the right to appeal from the order of the Clerk, considered as a decree of the District Court, or to institute an action of nullity.

Having elected by appealing, she cannot commence a separate suit for the same cause of action, during- the pendency of the appeal.

If this were allowed, it would induce endless litigation.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed with costs.


text:
    Stone and Husband v. Payne & Harrison.—J. M. B. Tucker, Intervenor.
    A family meeting in consenting to the natural tutrix, who is about to marry a second time, retaining the tutrixship of her minor children after such marriage, have no right to restrict her in the legal exercise of her rights and discharge of her duties as tutiix, and a requirement which they may undertake to make, that all her drafts for moneys belonging to the minors shall be di awn to the order of, and endorsed b}, the under-tuto’, is mere surplusage, and will be considered as not written.
    APPEAL from the District Court of Nachitoches, Chaplin, J.

      Hamilton & Chaplin and P. A. Morse, for plaintiffs and appellants.

      A. H. Pea/rson, for intervenor.
   Cole, J.

This suit originated from the illegal dispositions contained in a family meeting convened to decide whether Mrs. Mary A. B. Stone, widow of John Tuelcrn', who was about to contract a second marriage, should be retained in the tutorship of her minor children.

She appealed from the order of the Clerk, (considered as a decree of the District Court) which homologated the proceedings of the family meeting; her appeal is now pending.

The facts of the case are as follows:

Payne & Harrison, of New Orleans, are indebted to the estate of John Tucker, the late husband of Mrs. Stone, in the sum of $1,685 60, which is admitted to be the proceeds of community property. Mrs. Stone, in her capacity of tutrix, and as such, entitled to administer her husband’s succession, instituted this suit to recover of them said sum.

This proceeding was instituted in the District Court at Natchitoches ; defendants having waived the right of being sued at their domicil.

In their answer, defendants admit their indebtedness to the said estate in said sum; but aver, that they have been notified by the under-tutor, J. M. B. Tucker, not to pay said money without his consent, to be evidenced by his endorsement of the draft or other order against said fund. They pray that said under-tutor may be cited to defend this suit, and they make a tender, in open court, of said sum.

Defendants, on the 30th Sept., 1856, having proffered, in open court, the sum claimed by plaintiffs, it was ordered (the parties thereto consenting) that they retain the said fund in their hands, subject to the decision of this case.

The under-tutor intervened, and alleged, that by the advice of a family meeting, which retained the petitioner, Mrs. A. B. Stone, (in her approaching marriage with MaLa/uren,) and under which advice duly homologated, she was retained as tutrix, all drafts for money belonging to the minors shall be drawn to the order of, and endorsed by, the intervenor, the under-tutor; that she accepted the tutorship under these terms, and has acted in other cases according to them.

That in this case no demand was made on petitioner for his approval or endorsement, and. this action is a violation of the terms of the retention of the tutrix. That intervenor does not assent to the payment of this money as sued for, as it belongs wholly or in part to the minors, and the said tutrix has shown no good cause for the disbursement or reception of said funds.

He prays that her demand be rejected, and that the funds do remain in the hands of Payne & Harrison, where they are drawing interest.

A bill of exceptions was taken by plaintiffs to the refusal of the court to strike from the record that part of the defendant’s answer calling J. M. B. Tucker, the under-tutor, in warranty, and the said Tucker's answer on the ground that the under-tutor cannot appear in behalf of the minors, except in cases where the interest of the tutrix conflicts with that of the minors, which from the face of the record is not shown.

In the answer to the pleas- set up in the answer in warranty or intervention of the under-tutor, plaintiff avers, that said restriction of her rights by the family meeting is null and void, and prays for the rejection of the demands of the under-tutor, and a decree of nullity so far as the restrictions aforesaid go, and for judgment pursuant to the prayer of petition.

Ife are of opinion, that plaintiff had the right to collect from Payne & Harrison the amount due her husband’s estate.

She had been retained as tutrix by the family meeting, and as such, is entitled to administer said estate; the restrictions on her right as tutrix in the proceedings of the family meeting are mere surplusage, and must be considered as not written;, they did not annex these restrictions as conditions without which they were not willing to retain her, but merely added them in their proceedings, after they had declared she should be retained as tutrix.

The restrictions contended for by the under-tutor are adverse to the policy of our law.

He asks that the sum owed by Payne & Harrison shall remain in their possession.

In like manner claims due the estate might remain in the hands of the debtors, liable to be lost from insolvency or other causes.

If such a course of action were pursued, the tutrix would have no funds with which to pay the debts of the succession.

The lower court rendered judgment for plaintiff as partner in the community for one-half the sum claimed; the other half to remain with Payne & Ila/i'rism, subject to the draft of Mrs. Stone as tutrix, payable to the order of, and to be endorsed by, the under-tutor of the minors. Plaintiff asks to have one-half of the said sum to be decreed to her in her own right and the other half as tutrix.

We consider, she should have judgment for the whole amount in her capacity of tutrix, and, as such, entitled to administer. The respective portions due her and the minors can be determined in her final settlement with them.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed.

It is further ordered, adjudged and decreed, that plaintiff, Mary A. B. Stone, wife of L. L. MeLaurens, in her capacity of tutrix of her minor children, and, as such, entitled to administer the estate of her deceased husband, John Tuelser, recover of defendants, Payne & Hwi'rison, one thousand and six hundred and thirty-five dollars and sixty cents, ($1,635 60,) with costs of suit up to the time of the answer filed and deposit tendered by them of said amount.

It is further ordered, adjudged and decreed, that the intervention of the under-tutor, J. M. B. Tuelcei', be rejected, and that the costs of intervention, of the original suit, except those due as aforesaid by Payne & Harrison, and the costs of appeal, be paid by the estate of said John Tucher.


author: SroEFORD, J.

text:
    Daniel Deal & Co. v. Thomas A. Patterson.
    An action of debt upon a judgement rendered in another State of the Union, is a personal action, the? prescription of which is governed by Art. 8508 of the Civil Code.
    Since the Act of March, 1848, (promulgated 4'tli April, 1848,) placing absentees and non-residents on the same footing with residents of the State, in relation to the laws of prescription, ten years will suffice to enable a judgment debtor to prescribe against his creditor, though the latter be a resident of another State.
    When a statutory change is made in regard to a particular term of prescription, the time anterior to the promulgation of the change is reckoned according to the old law, and the subsequent time according to the new enactment.
    APPEAL from the District Court of Natchitoches, Ogden, J.

      H Safford, for plaintiffs and appellants.

      Hanyiilton & Chaplin, for defendant.
   SroEFORD, J.

The present action was instituted against the defendant in the Parish of Natchitoches upon a personal judgment rendered against him in the State of Pennsylvania, where he formerly resided and where the plaintiffs still reside. The prescription of ten years was pleaded to the action in the court below, and the plea prevailed; the plaintiffs have appealed.

It is now settled that an action of debt upon a judgment rendered in another State of the Union is a personal action, the prescription of which is governed by the Article 3508 of the Civil Code. Succession of Tilghman, 7 Rob, 291; Surget v. Stanton, 10 Ann. 319; Shackleford v. Robinson, 10 Ann. 583. See also the opinion of Simon, J. in note to Planters' Bank of Mississippi v. Watson, 9 Rob. pp. 267-274; and Succession of Ducker, 10 Ann. 758. It appears that in the cases of Louisiana State Bank v. Barrow, 2 Ann. 405; Louisiana State Bank v. Haralson, Ib. 456; Judson v. Connolly, 4 Ann. 169; and Dananport v. Labauve, 5 Ann. 140, the judgments which were hold to be prescribed only by thirty years, if at all, were domestic judgments.

By Article 3508, the personal actions therein embraced were prescribed by ten years, if the creditor were present, and by twenty years if he were absent. The law stood thus until the passage of “an act placing absentees and nonresidents on the same footing with residents of the State in relation to the laws of prescription,” approved March, 14th, 1848, (see Acts p. 60) and promulgated April 4th, 1848. When a statutory change is made in regard to a particular term of prescription, the time anterior to the promulgation of the change is calculated according to the old law, and the subsequent time according to the new law. Xanpi v. Orso, 11 La. 59.

In the present case, it appears that the judgment was rendered in the Pennsylvania court on the 6th June, 1842, after personal service, both parties being then residents of that State. But it also appears that the defendant made a full acknowledgment of the debt and of the binding force of the judgment against him on the 11th July, 1843. For, at that date, he endorsed upon a writ off. fa. issued under the judgment, immediately after the Sheriff’s return of a seizure, the following waiver and confession:

“I do hereby waive the holding of inquisition and appraisement of the property levied upon by virtue of this writ, and confess condemnation of the same.”

This being the last apparent interruption prior to the institution of the present suit, the prescription must date from the 11th July, 1843. Assuming that the defendant left the State of Pennsylvania immediately after signing the above acknowledgment, (the hypothesis most favorable to the plaintiffs and unfavorable to the success of defendant’s plea,) a term of four years eight months and twenty-four days elapsed under the old law, by which it took twenty years to bar the action of the absent creditor. That left fifteen years three months and seven days to run in order to complete the term of prescription under the old law. But on the 4th April, 1848, the new law went into operation, which reduced this remaining term one-half, by putting the non-resident creditor on the same footing as a creditor present, that is, shortening the term as to time from twenty to ten years. Therefore, a lapse of seven years seven months and nineteen days from the 4th April, 1848, without an interruption, would complete the prescription which barred an action in Louisiana on the Pennsylvania judgment. The defendant acknowledged service of the petition in this case and waived citation on the 20th February, 1856. Between the 4th April, 1848, and the date of this acknowledgment, there was a period of seven years, ten months and sixteen days, or about three months more than was necessary to perfect the prescription pleaded by the defendant.

This view of the ease renders it unnecessary to decide what effect the Acts of April 30th, 1853, (p. 250) and March 15th, 1855, (p. 224) might have in a case of this kind; they in no wise conflict with the article 3508 of the Civil Code, which is fatal to the plaintiff’s1 claim.

Judgment affirmed.