Flower v. Griffith

6 Mart. (N.S.) 89 | La. | 1827

Porter, J.

delivered the opinion of the céurt This action was commenced by J tachment, which was levied on a tract of land, the defendant held in common with his sister. ⅛ The proceedings previous to final judgment need not be set out, as the only error assigned bv the plaintiffs is, that the court below had J r decreed that no execution should issue against the property attached, until a partition and settlement take place between the defendant and his sister, co-heirs of the succession of L. C. Griffith.

The facts of the case shew, that the property is held in common between the defendant and his sister. The only question therefore is J 1 the judgment be correct in point _ oi law.

Tlie old code contained aprovision that “ the undivided share belonging to a co-heir in a succession cannot be seized on an execution, but the creditors have a right to demand a partition of the estate between the co-heirs,” 490, art. 6.

It is contended that this article is repealed by the new code in which no such regulation is found. If it appeared that the legislature had made it a part of their amendments to that work, that this article should be suppressed, then perhaps this argument would be correct.

But nothing of that kind has been shewn, and our own researches have led us to the directly opposite conclusion. The jurists who were appointed to alter and improve our old code, in their report to the legislature, proposed amendments of three kinds. The first, the insertion of new provisions; the second, the modification of those already existing, and the •third, the suppression of those articles which were incompatible with the changes they thought proper to recommend.

We have carefully examined this report. and not a word is said in it of the last title the old code, it is neither proposed to be ded by new provisions, or modified, or supT J 1 41 pressed.

The amendments to the other parts of the old code, were submitted to the legislature, and with some slight alterations adopted. But the remaining provisions in it, did not pass a second time under the view of the legislature, nor were they re-enacted. They were left as they originally stood.

After these amendments were passed, the best way perhaps would have been to have printed them separately. The citizen could have then seen at once what change had been made in the old law.

But it was thought adviseable from the utility, which would result from presenting the whole work together, to direct that the amendments, and the old code, should be printed in one book,

The persons to whom this duty was intrusted were not, nor could they be, charged with legislative powers. Their duty was ministerial. They had no authority to alter in the smallest respect the law. They were empowered to print the code, and the amendments which the legislature had adopted, and if they made any further change, it is not binding on the citizen, The work which they have presented, has ■ never been passed on by the legislature, nor is it cloathed with the signatures of the speaker of the house of representatives, the president of the senate, nor the governor. The amendments to the old code have received legislative sanction, the old code itself has, and if the book now printed as the code of Louisiana contains that old code, and the amendments,* then all the provisions in it are binding and have the force of law. But if it contains any thing more, what has been added, has not And if any thing has been omitted, that omission does not prevent the law which had been already promulgated in the old code from being in force. To decide otherwise, would be virtually a declaration, that the persons who were appointed to print the code, had legislative powers.

Such powers they of course never intended to assume, and we have no doubt they discharged their duty faithfully, and in the main judiciously, but they were liable to err, and in our opinion have erred in the instance before us. The whole of the twenty-first title of the third book of the old code has been omitted in the new, and yet it was not proposed to ’ J r i be suppressed by the jurists, nor does it pear to have been repealed by any act of the 1 r v J J legislature of which we can get cognizance. We have examined the original of the amendments, to the code, in the office of the secretary of state, the only place where they are to be found distinct and separate, and not a word is there said of repealing this title. We of course are bound to come to the conclusion, that it is still in force.

As to the argument drawn from the code of practice it presents no difficulty. The law by which the work was adopted declares, that when its provisions are contrary, or repugnant to those of the civil code, the latter shall be considered as repealed. That contained in the former, is the general rule which existed previous to its passage, and with that general rule stood the exception. We have more than once decided, that re-enacting the general rule, did not repeal the exception with which it was previously accompanied, Code of Practice, 643, 6,7. Civil Code, 490, art. 6.

The judgment of the court below, should be affirmed with costs,

Watts Se Lobdell for the plaintiffs, J 1 7 for the defendant.