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arrive at the Villa del Alte Paraguay Diamautius. At this point, its waters gush forth from rich beds of valuable minerals. Its first sources are in 13° south latitude and 12° longitude west from Rio de Janeiro. From thence it increases rapidly and majestically. In fact, its primitive fountains are so plentiful, both in number and in water, that in a very short distance from them it is already fully navigable. Its bed, spotted with gold and brilliants, indicates that it is to be the great channel of the immense riches of South America,
It would be a tedious and thankless task to enumerate its many confluents, each one of which has other dependants. Nor is a bare list of names of any use, so long as the rivers to which they belong are unknown in all else that appertains to them. Thus far we have kept within the bounds of certainty. It is enough to say here, that the amount of the congregated waters during the freshets is so great, that it forms the inland sea formerly called Xarayes, which covers the land between Villa Maria and Coimbra, being an extent of eighty leagues in length, by forty in width. Deep and beautiful lakes, from time to time, flank its entire course. Finally, the river Paraguay, from its interesting and unembarrassed channel, its beauty, its long course, the variety of its shores, its tributaries, its rich mines, and many other titles to importance, appears almost to belong to romance rather than reality.
We ought to consider, as a third great section, the nearly parallel lines of the rivers Bermejo and Pilcomayo already mentioned. The first has been frequently explored. It rises in the Andes, and receives, among many other large tributaries, the rivers Santa Victoria, San Luiz, Negro, Grand, Jejuí y Tazu, Reyes y Léva. Its channel is deep enough for the largest vessels, and is unobstructed as far as the republic of Bolivia, the Gran Chaco, and the provinces of Salta and Tucuman, in the Argentine Confederation. It crosses an immense surface, which it cuts into different sub-divisions, and from the length of its course and the volume of its waters, it received the name of great from its first discovery, being the commercial canal of several entire States.
The second of these rivers, formed by the two great branches, the Pilcomayo and the Cachimayo, rises also near the Andes, being increased in its course, among others, by the tributaries Furichipa, Santa Elena, Acchila, Paspaso, the waters of the Potosí, and the Sucre. It irrigates widely extended provinces, as well as the territory of the Grand Chaco. The republic of Bolivia has made repeated efforts, though as yet without success, to explore this important river.
Our description has been rapid, but it is enough to prove the immense extent of surface which is intersected by this admirable and vast net-work of navigable waters. Crossing and insinuating itself throughout such rich and varied lands, what an incalculable commerce of exportation must one day float upon its bosom! How difficult it must be to over-estimate the future grandeur and prosperity of those enchanting regions, for which “God has done so much, and man so little.”
Upon the fertile banks of so many fluvial channels, sugar-cane, coffee, cotton, yerba, tobacco, rice, indigo, and a thousand other productions, vegetate with profusion. Near them is an inexhaustible supply of cochineal, hides, furs, and an immensity of woods, which, by themselves ought to support a most valuable commerce, as well for the different purposes of maritime construction, and for those of domestic habitations, as for the purposes of dyeing and the other arts. Sarsaparilla, ipecacuana, vanilla, cocoa, copaiva, India rubber, Peruvian bark, with an infinity of useful herbs, fruits and gums, some
as yet unknown to the civilized world, luxuriate spontaneously without the aid of man, and are gathered in small quantities by the natives, as purely natural riches, and of little value.
Thus all is found there from the hand of Providence, but much else is wanting. And, therefore, it is that to open the great prospect of the riches of these regions—to call the speculation and attention of all persons to beautiful and fertile South America, we desire two things both simple and reasonable. LIBERTY OF NAVIGATION, AND PEACE. The latter obtained, the former will follow. We have shown in other papers, how, in our humble judgment, the government of the United States can give to these unhappy countries that peace which is the indispensable element of civilization and .christianity.
The order of Providence seems to have constituted our glorious nation the guardian and the protector of South America. With the friendly aid which it can only supply, a sudden metamorphosis will transform the face of these countries. The power of steam will reproduce upon their waters the wonderful results which have marked its introduction among ourselves, and which, to our benighted brethren of South America, appear but the phantasy of a dream. If we can only lead them to adopt those modes of commerce for which they have such unexplored advantages
, we shall open to them a new era of grandeur and happiness, of which they cannot as yet form any adequate conception.
In from five to eight days, a steamboat could run up from Buenos Aires to Asuncion, the capital of Paraguay; and in from six to nine, to Cuyabá, as already stated, the capital of the Brazilian province of Matto Grosso. A shorter time will carry the return voyage to the Rio de la Plata, after having touched, in both trips, at the many different villages and cities upon the banks ; leaving in them the spirit of life and wealth, and through these the. benefits of education and refinement.
When this time arrives, the cheapness of productions, the rapidity of all transactions, and the movement of industry, will create consequences which, natural though they be, appear now to the timid Paraguayan spirits, as the beautiful delirium of the opium eater, or as the speculations of a poetical imagination. The concourse of foreign manufactures will lower their price; the facility of transportation will raise the value of the productions of those valleys ; and the certainty of an outlet or consumption, will prodigiously augment the sources of supply. New industry will appear, new improvements will astonish him, who, though he lives in the nineteenth century, is as yet surrounded by the darkness of the tenth. His sole anxiety now is necessarily confined to procuring the most ordinary means of subsistence. But then the face of all things will absolutely change. Population will increase in a ratio hitherto unknown, not only from the voluntary emigration of foreigners, but on account of the increased means of a comfortable existence. And the travels and investigations of scientific men, the introduction of machinery and new means of labor, together with a new spirit of energy and enterprise, will bless all persons with novelties of unbounded usefulness before unknown.
The lands will double in price periodically, new mines will appear, and increased facilities will draw out the overflowiug riches of those which are now depreciated. In fine, many villages, many cities, will raise their prosperous heads upon the roots of those luxury-teeming forests.
But the immediate obstacle in the way of the advancement of the most valuable part of South America, is presented by the policy of General Rosas,
the Dictator of the Argentine Confederation, who opposes the recognition of the independence of Paraguay, as well as the right of Bolivia, Paraguay, and Brazil, to a free navigation to the ocean, save under his flag, though he only has actual jurisdiction over some seven hundred and fifty miles, of the many thousands which we have endeavored to describe. More especially in the case of Paraguay, does he claim the rights of a master, in the face of her just title to independence and self-government. That rich and prolific country alone embraces a territory twice as large as the State of New York, and contains within itself all the elements of future greatness. But General Rosas, the powerful foe of her liberty, holds, as we have said, both shores of the Paraná to its confluence with the Paraguay, and refuses to allow the productions of these three nations, over only one of which he pretends to any jurisdiction, to find their way to the ocean through the only outlet which Providence has supplied. The pretext on which he rests his claim, only requires to be examined in order to expose its futility. The independence of Paraguay can never be merged in the despotism of the Buenos Airian Dictator, for it has already been acknowledged by many nations, both of Europe and America, namely, Brazil, Chili, Bolivia, Venezuela, the Banda Oriental, Portugal, and Austria.
It only needs the friendly action of the United States, as one of the most important commercial nations of the world, to put an end to the present state of injustice and oppression, and give the first impulse to the career of her advancement and success.
Our government, as yet, has given no countenance to the claims of Paraguay. But we trust that it will soon investigate these proofs concerning this claim, which are now in its possession. For it is unreasonable and barbarous, as well as a perversion of the duties and design of the human race, that any one man, or people, should debar civilized nations with their implements of husbandry, and the arts—with their laws, their learning, their siberty, and all that ameliorates the primal condition of mankind—from all entrance into or exit from this mighty region, spontaneously laden with the bounties of heaven. Nor can we be brought to entertain much respect for the loose and attenuated claim of jurisdiction advanced by General Rosas, over a country evidently fitted and designed by Providence, and by the longing desires of its rightful owners, to become a great, a powerful, and an independent nation.
" If an uncivilized, erratic, and savage race of men will usurp more territory than they can subdue and cultivate, they have no right to complain, if a nation of cultivators puts in a claim for a part.” (Vattel, divit des gens, C. 1., sec. 81.) How much more may the citizens of Paraguay insist upon
their indefeasible dominion over their own soil, and refuse to submit to the usurpation of Buenos Aires, and the semi-barbarous Gauchos of the Argentine Confederation!*
* EDWARD A. Hopkins, Esq., the contributor of this article, is a son of the Bishop of Vermont. He was appointed by Mr. Polk United States Special Agent in 1845, and resided for many months in the Republic of Paraguay, and since that time has rosided there in a private capacity--as explorer. His contributions to the “ National Intelligencer" and other leading journals, on subjects connected with Paraguay, have attracted a large share of the public attention. He is about to return to that country for the purpose of opening the commerce of that vast and unexplored region to American enterprise. The readers of the Merchants' Magazine" will probably be favored, on his return, with further information touching its resources and capabilities for commercial enterpriso.--Ed. Mer. Mag.
MERCANTILE LAW CASES.
Persons, not parties to a note, who put their names upon it as endorsers, are presumed to have done
80 as sureties, and are liable in solido, unless they demand a division. The exception of division is a peremptory one, which must be specially pleaded; it cannot be supplied by the Court. When the exception is pleaded by one surety, it is competent for the plaintiff to prove the insolvency of the other surety.
In the Supreme Court of Louisiana. Robert McCausland rs. Lyons & Smith. Appeal from the late Third Judicial Distriet Court, of the Parish of West Feliciana. SLIDELL, J. Per Curiam: Lyons & Smith are sued upon a note of the following tenor :
“On the first of April, 1843, we, or either of us, promise to pay to Robert McCausland, or order, the sum of $2,200, payable and negotiable at the Louisiana State Bank at St. Francisville, bearing ten per cent per annum from maturity until paid, it being for value received this first day of April
, 1842. (Signed) P. B. MCKELVEY." On the back of this note are the signatures of the defendants, “ H. A. Lyons" and "Ira Smith."
The petitioner, who is the payee of this note, alleges that Lyons & Smith signed before the delivery of the note to him, and thus incurred the liability of sureties in solido. Lyons & Smith answered, admitting their signatures only, and pleading the general issue. The Court below gave judgment in favor of the plaintiff against the defendants each for his virile share, and from this judgment the plaintiff has appealed, and asks that the judgment be amended so as to condemn the defendants in solido.
Our first inquiry is, Under what class of contracts does the obligation contracted by Smith & Lyons fall? This is answered by several decisions of our predecessors and of this Court, which must be considered as settling the point in this State. By this irregular endorsement, Lyons & Smith bound themselves as sureties. (See Smith vs. Gorton, 10 L. R. 376; Laurence & Hill vs. Oakey, 14 L. R. 389; McGuire vs. Bosworth, 1 Annual, 248.) Such being the character of the contract, our next inquiry is, Are these sureties liable each for the whole debt, or is the liability merely joint?
By the article 2088 of our Civil Code, (which is taken literally from the article 1202 of the Napoleon Code,) it is declared that "an obligation in solido is not presumed; it must be expressly stipulated.". The rule ceases to prevail only in cases where an obligation in solido takes place by virtue of some provisions of law, “ou la solidarite a lieu de plein droit, en outre d'une disposition de la loi.” It is, therefore, necessary to consider the nature of the contract of suretyship, for the purpose of determining whether it falls within the exception contemplated by that article.
The rule of the Roman Law was, that if several persons become sureties for one and the same thing, every one of them is answerable for the whole. Si plures sint fidejussores, quotquot erunt numero singuli, in solidum tenentur. The benefit of division was not ipso jure, but might be demanded by a surety when his co-surety was solvent. Inter fidejussores non ipso jure deriditur obligatio ex epistola Diri Hadriana ; et ideo si quis eorum ante exactum a se partem sine herede decessuil, vel ad inopiam pervenerit, pars ejus ad celererum onus respicit. Ut autem is qui cum altero fidejussit non solus conveniatur, sed dividatur actio inter eos qui solrenda sunt, ante CONDEMNATIONEM ex ordine postulari solet. (See the text and notes of Domat, Surety, Book iii., tit. iv., sec. 2.)
The French Code followed the Institutes and the Code of Justinian, not, however, without previous opposition on the part of those jurisconsults who desired to extend the rule of the article 1202 to the contract of surety ship, and require an express undertaking to impose a liability in solido. That Code was thus made
to harmonize with the Roman Law and the opinions of Vinnius and Donnean, which were adopted by Pothier. (See the history of the law on this subject, as given by Troplong, Cautionnement, sec. 281 et seq. Pothier, Obl., sec. 416.) The latter considers the principle of solidarity as inherent in, and derivable from, the nature of the contract. Il est de la nature du cautionnement de s'obliger a tout ce que doit le debiteur principal; et par consequent chacun de ceux qui le cautionnement, est cense contracter cet engagement, a moins qu'il ne declare expressement qu'il ne s'oblige que pour partie; c'est la raison qu'en rapporte Vinnius. He then alludes to the exception of division accorded by the Emperor Hadrian, and says it was adopted in the practice of France.
Our Code has adopted this principle; and so far as our present inquiry is involved, has substantially followed the law of Rome and France. After quoting articles 3018 and 3019, C. C., the Court proceeds:—“The contract of suretyship under these provisions of law is of a mixed character. The obligation of each surety is to pay the whole debt, but this solidarity is tempered by the right of division. This right, however, rests in facultate. The surety has the right to demand the division; but until the right is exercised, the obligation is solidary. In the present case there has been no demand of division by the sureties. They were attacked by the plaintiff as debtors in solido, and pleaded the general issue. The exception is a peremptory one, which must be pleaded specially; and this has not been done in the court below, nor even in this court. Dividilur obligatio inter plures fidejussores per exceptionem duntaxat, non ipso jure. It is not an exception which can be supplied by the Court. It is obvious that it presents a mixed question of law and fact. Suppose that Lyons or Smith had pleaded the exception of division; the plaintiff might have met the plea by proving the insolveney of the other surety." (See Troplong, Caut. sec. 297, and the authorities there cited. Merlin, Report., verro Caut, sec. 4, No. 2.)
The judgment below was therefore reversed, and judgment rendered against Henry A. Lyons and Ira Smith in solido for the sum of $2,200, with ten per cent interest from April 4, 1843, and costs in both courts.
DECEPTION IN THE PURCHASE OF MERCHANDISE, AS TO ITS OWNER. Where A. purchased merchandise in the shop of B., and the former acted in such a way as to deceive
the public with regard to the ownership of the property, and to entrap the sheriff who entered the premises to make a levy in virtue of a fi. fa. against B., all the surrounding appearances being de ceitful and violently opposed to the naked assertion of the parties that A.was the owner, the selling himself, acting as salesman, his sign remaining on the outside of the shop, the boxes and packages marked with his name in full, or by his initials, the purchaser's name appearing nowhere, and he neglecting to exhibit his bill of sale or mercantile books to the sheriff, who, when sued for the value of the goods and damages for illegally seizing them as the property of B., brings them into Court to abide the decision; held, that the sheriff was properly decreed to restore the goods to A., reserving to him his right to sue the sheriff for whatever damages, if any, the goods may have sustained while in custody.
In the Supreme Court of Louisiana. New Orleans, March 26, 1849. James P. McDonald 18. John L. Lewis, Sheriff. No. 606. Appeal from the Third District Court of New Orleans. (His Honor, Chief Justice Eustis, dissented from the opinion of the majority of the judges. His opinion is given infra.) SLIDELL, J., Justices Rost and King concurring. Per Curiam: The Court below was of opinion that the plaintiff had proved a bona fide purchase of the goods from Tillotson. I do not feel entirely convinced upon that point; but I will give the plaintiff the benefit of the District Judge's opinion, and assume that the sale was real and in good faith. But what are the facts, so far as the sheriff is concerned ?
This sale, it is said, was made on the 16th February, 1847, upon which day the written bill of sale purports to be signed. Tillotson, the vendor, an embarrassed debtor, remains in the shop, acting as salesman, down to the time of the seizure. The sheriff's deputy goes on the 9th April, 1847, to the shop, finds Tillotson there, and demands payment of the amount of the execution. Tillotson tells him hé cannot pay. The officer replies, " Then I must seize the goods here." Tillotson answers, They are not mine."' The officer retires, and in a little while returns, and threatens again to seize. At the second visit, McDonald comes into the shop