Jennison v. Warmack

5 La. 493 | La. | 1833

The facts of the case are fully stated in tbe opinion of the court delivered by

Martin, J.

The defendant is appellant from a judgment on a bond for the prison bounds. He has built his hopes of the reversal of it on several grounds; but the opinion we have formed on that which relates to the plaintiff’s right to sue on the bond, without obtaining an endorsement of it from the sheriff, authorised by an order of court, after proof of a breach of the condition, renders the examination of any other part of his defence useless.

He has relied in this part of the case on the act of 1808. 1 Moreau’s Digest, 572.

The opposite counsel has urged: First, that the provision relied on is applicable only to debtors availing themselves of the act in the parish and city of New-Orleans. Second, that the provision is contained in an act, the whole of which was repealed, as a civil law in force before the promulgation of the Civil Code; and if the whole act be not repealed, the provision is a case of proceeding which existed before the promulgation of the Code of Practice. Acts of 1828, p. 160.

The act of 1808 for establishing prison bounds among other pur-pStV'the^eu territory. The word “civil” abro|attagfS promulgation mustiferestricted and the laws of those countries which derive their jurisprudence usedincontradis! iawfof England pectivostates.rcs’ The legislature of tamkttersSprov¿ ^odeof Practice ceeding68 therein contained to preexisting onés,but did not repeal laws wliich con-tamed rules of proceeding to maa? mtícañb/found that Code-

1. We are of opinion that the act of 1808 extended its influence over the whole then territory. It indeed provides J r specially for the limits of the prison bounds in the parish and A v A x city 0f New-Orleans, but it authorised the police jurors in the °ther parishes to fix the limits of the prison bounds in the respective parishes, and authorises debtors to avail themselves of the benefit of them, by giving bond, according to the provisions of the acts.

The word civil, as applied in the act of 1828 to the laws hu force in this state, anterior to the promulgation of the Civil Code, must not be considered as used in contradistinction with the word criminal, but must be restricted, as it frequently is in the jurisprudence of the other states of this union, and , _ , _ _ . . . , the country trom which that jurisprudence is derived, to the ^ v A R°man law and those of those countries who derived their jurisprudence from it, and used in contradistinction to the law of England, or those of the respective states.

The late Civil Code, 2169, contains an express provision, that both the voluntary and the forced surrender of property are to be governed by special laws, those laws must neces. sarily be those in force before the promulgation of the Civil Code.

As neither the Code nor that of Practice, nor any of those passed between the promulgation of them before the Act of of 1828, contains a provision for the disposition of property thus surrendered, the Civil Code recognises these surrenders; the repeal of the law providing for the disposition of this kind of property would be a nullification if not a repeal of the part of the Code recognising the legality of the surrenders.

Neither does it appear to us that the provision is repealed as a rule of proceeding which existed before the promulgation of the Code of Practice.

The legislature of 1828, we believe, intended to substitute the rule of proceedings, in matters provided for by the Code of Practice, to pre-existing ones, but not to repeal those laws which contained rules of proceeding to carry them into effect, and for which no rules of proceeding in the Code of Practice could present a substitute. The latter Code is perfectly silent as to the mode of disposing of ceded estates. Property to a vast amount has been disposed of according to the rules . . . " of proceeding existing before lfs promulgation.

^ It is equally silent as to the mode of proceeding by which * i o ^ debtors may be relieved from close imprisonment. We consider the law enabling them to avoid it as still in force, and the rule of proceeding they point out to them to avail selves of those laws, and those to prevent them from abusing the indulgence held out to them, as still in force.

The plaintiff not having conformed himself to the line of conduct prescribed to him by the act of which he has sought to avail himself, his suit was premature, since it was begun without the endorsement of the bond; he ought to have been non-suited.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that judgment be entered for the defendant, as in case of a non-suit, and that the plaintiff pay costs in both courts.