« ZurückWeiter »
Death had marked out his victim! He was one
The withered form, pale cheek, and sunken eye,
He spoke not,
The pale thing on her heart—her heart was full
C. A. L.
LETTERS FROM CHARLES WATTS TO WILLIAM SAMPSON.
The commercial law is very much the same as in the other states, but still contains some peculiarities arising from the law of contracts. The vendor of merchandise can, in cases of insolvency, exercise the privilege of retaking his merchandise, if it remain in the hands of the debtor, has undergone no change, and can be identified. No act of assignment can give a preference of one creditor over another; and even actual sales or payments, if made in a state of insolvency with that view, are rescinded in favour of the mass of the creditors. All debts are on an equality in the settlement of estates, except such as confer a privilege by giving a lien specific or general, as mortgage or judgment. Partnerships are recognised which bind a dormant partner only to the extent of a specified sum. It is unnecessary to speak of the law of deposit, mandate, suretyship, and of which the common and chancery law contain no. thing that is not borrowed from the civil law.
Aleatory contracts are legal for games tending to promote courage or skill in arms, such as in the exercise of the gun, foot, horse, or chariot racing, wrestling, fencing, &c.; but the judge may reject the demand when it appears excessive, compared with the circumstances in life of the loser. All the privileges of debts recognised in chancery law under the name of the privilege of the vendor, of the builder, of the physician in the last sickness, of the compensation of the lawyer for settling the estate, of the baker, butcher, &c. for supplies to the family, for three months anterior to the insolvency or death, are a part of the civil law of Louisiana.
The doctrine of prescriptions is finely modified by the rule, that the bona fide purchaser of real estate is confirmed in his title by the lapse of ten years possession, against persons present in the state, while it requires thirty years to confirm the title of any one who can be proved to have acted with fraud. The law of insolvency admits either the discharge of the per
son from imprisonment, or an extinguishment of the debt by the consent of three fourths of the debtors; and the judges have always maintained the interity and constitutionality of these laws, when the contract was entered into subsequently to the passage of the law, in opposition to the sophistications of the United States Court.
Upon the whole, with the exception of the law of real property, and the doctrine of warranty in contracts, there is more seeming than real difference between the great body of the civil law and the common law, as modified by equity. It might be inferred a priori, and the state of things affirms the inference, that among civilized nations, the natural sense and wants of mankind must lead to the same conclusions on subjects daily brought home to their apprehensions and feelings. The error is, that a system of law adopted for and by a barbarous people, in a simple, warlike, and rude state of society, is yet retained by a people who are now in a high state of civilization and refinement; that the various and involved atlairs of a nation are yet to be regulated by rules wholly insufficient to meet their variety and complexity. Endless have been the statutes to alter and change so as to meet the new situation and condition of mankind. The expedient of a court of chancery, and the adoption of a system of equity, have alone enabled the people to tolerate and live under what is denominated the common law.
This has produced a cumbrous and awkward machine for the administration of justice. The point is not so much that of changing any part of the law, but whether the law should throw off its cumbrous and ridiculous forms, its inapplicable maxims and rules, and be new modelled into a plain, clear, and beautiful system of regulations for the government of society. That man must be perversely ignorant who would pretend to deny, that the present state of jurisprudence in England does not wholly differ from the state of the law when the barons made their resistance to clerical usurpation in the famous speech Nolumus leges Angliæ mutari, and that the difference is owing principally to the adoption in part of a system of law which was then rejected. The common law is no longer the common law, except in the retention of useless forms and maxims-it is preposterous to call it so after so large a portion of the civil law has been engrafted under the title of equity. Let any man conversant with the subject, read Sugden's Vendors, and the Chancery Reports, and he will find how much has been borrowed without acknowledgment for the loan, and how much even the law of real property has been modified by civil law
principles. On the other hand, the civil law has borrowed the institution of juries, the examination of witnesses viva voce, and the whole law of evidence.
Blackstone has compared the common law to an antiquated castle, which has many spacious apartments, although the entrances are narrow and inconvenient. It may be asked, who would live in an antiquated castle when he might inhabit a convenient, elegant, and simple modern mansion, having not only spacious apartments, but easy and noble entrances, and a beautiful arrangement. It is a most convincing proof that some change is necessary, that the language of all the ablest writers on the common law, from Lord Coke down to this time, is the language of apology for its cumbrous awkwardness. Blackstone himself regrets, that some more simple proceeding is not adopteu in place of the inconvenient fiction of a forcible ejectment.
Of the entrances to the temple of justice we will now speak:
The practice is exceedingly simple. There are no particular forms of action. The circumstances of the case are stated in a short, perspicuous manner. There is no inducement to verbiage or tautology, as the attorney gets neither more nor less whether his petition or answer be long or short. The defendant admits or denies, compensates, and even sets up a claim wholly distinct if he pleases, viz. pleads in re-convention. Thus, if a defendant is sued for the price of a horse, he may not only deny, compensate, &c. that particular demand, but may, in his answer, exhibit his claim against the plaintiff for a carriage sold him, and obtain judgment as in an original suit against him. Any number of causes of action, however different in kind, may be joined in the same suit if they belong to the same individual. Compensation, or set-off, is allowed, whether the defendant acquired his set off before or after suit brought, or even after judgment, under an equitable regulation as to costs. Either party may interrogate the other with the same effect as in chancery. This rule should be amended so as to make him appear in person before the judge or jury, and submit to a regular examination, where his adversary requires
An action for the possession of land is brought as any other, and the plaintiff is bound to attach copies of his titles to his petition. In like manner must the defendant, if he relies on writ. ten title.
If any one is turned off forcibly, he recovers possession and damages, by suing within a year, without regard to title; the defendant may then institute his suit for the property. In any
other case, the defendant can always turn an action for the possession, into an action for the property, by setting up title.
Actions of boundary are brought by plaintiffs, setting forth that he owns adjoining the defendant, his title, and what he insists to be the boundary between them. The defendant sets forth his title and claim of boundary. Whoever fails pays costs; or if the boundary of neither be established, but some other, the costs are borne equally.
These proceedings are wonderfully simple, compared with the fiction of ejectment.
Judgment is never rendered for one thing in order to get another. Bonds are given for the sums really due, and you recover judgment for that with the interest from the time of nonpayment. The fiction of losing and finding is not resorted to, but a simple statement is made that defendant is in possession of your property, and refuses to give it up.
If a suit is instituted without the amicable demand, viz. a demand, with a threat of a suit, plaintiff pays his own costs. With certain exceptions as to suits for immovables, partitions, &c. the defendant can only be sued in his own parish. If the judgment is for a specific thing, it is enforced by attachment and distringas. Injunctions are granted by the special order of a judge, on a petition sworn to, and on giving bond to answer in damages.
Sequestrations of particular property to which plaintiff claims right, are obtained on similar terms. The appearance in court of an absent defendant, who has left no sufficient attorney, is enforced either by attaching, or by sequestrating his property and revenues; this last mode is more particularly used, when the object is to litigate the title of real property, and the defendant is an absentee. In all cases where the legal appearance in court of an absent person is coerced, and he does not appear in person in due time, the judge appoints an attorney of the court to defend him, and makes to him an alJowance out of the property in proportion to his labour, and the importance of the matter.
The petition is served with the citation or writ, and the defendant has ten days after service to answer. The courts are open all the year to originate suits and return process, and eight months for the trial of causes. There are no juries in civil or criminal cases, unless one of the parties chooses to demand trial by jury. One half if not three fourths of all suits are tried by the court alone; so far as the trial by jury is desirable, it is more within reach in Louisiana, for there it may be resorted to in every suit; here, in all chancery suits, it is at the pleasure of the chancellor. Attachments create a lien in favour