JENNISON vs. WARMACK. APPEAL FROM THE COURT OF THE EIGHTH DISTRICT, THE JUDGE OF THE EASTERN DIS. JENNISON vs. WARMACK. The act of 1808 for establishing prison bounds, among other purposes, was applicable to every part of the then territory. The word "civil," in the act of 1828, abrogating laws anterior to the promulgation of the Louisiana Code, must be restricted to the Roman law and the laws of those countries which derive their jurisprudence from it, and is used in contradistinction to the laws of England and of the respective states. The legislature of 1828, substituted in matters provided for by the Code of Practice, the rules of proceeding therein contained to pre-existing ones, but did not repeal laws which contained rules of proceeding to carry other laws into effect, and for which no substitute can be found in that Code. The facts of the case are fully stated in the 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 Second, that the provision is contained in an act, the whole of which was repealed, as a civil law in force before the promulgation of the Civil Code; and if the whole act be not repealed, the August, 1833. JENNISON vs. WARMACK. The act of 1808 EASTERN DIS. provision is a case of proceeding which existed before the promulgation of the Code of Practice. Acts of 1828, p. 160. 1. We are of opinion that the act of 1808 extended its influence over the whole then territory. It indeed provides for establishing specially for the limits of the prison bounds in the parish and prison bounds among other pur- city of New-Orleans, but it authorised the police jurors in cable to every the other 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. poses, was appli part of the then territory. The word "civil" The word civil, as applied in the act of 1828 to the laws in the act of 1828, in force in this state, anterior to the promulgation of the Civil promulgation of Code, must not be considered as used in contradistinction with abrogating laws anterior to the the La. Code, must be restricted the word criminal, but must be restricted, as it frequently is to the Roman law and the laws of in the jurisprudence of the other states of this union, and those conntries which derive their the country from which that jurisprudence is derived, to the jurisprudence from it, and is Roman law and those of those countries who derived their used in contradistinctiou to the laws of England jurisprudence from it, and used in contradistinction to the and of the res- law of England, or those of the respective states. pective states. The legislature of 1828, substituted 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 in matters provi- the rule of proceedings, in matters provided for by the Code ded for by the Code of Practice of Practice, to pre-existing ones, but not to repeal those laws ceeding therein which contained rules of proceeding to carry them into effect, the rules of pro contained to pre August, 1833. JENNISON and for which no rules of proceeding in the Code of Practice EASTERN DIS. 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 its promulgation. vs. WARMACK. existing ones, but did not repeal laws which con proceeding to into effect, and for tute can be found It is equally silent as to the mode of proceeding by which tained rules of debtors may be relieved from close imprisonment. We con- carry other laws sider the law enabling them to avoid it as still in force, and which no substi the rule of proceeding they point out to them to avail them- in that Code. 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. INDEX OF PRINCIPAL MATTERS. ACT. 1. A person can only attack directly an authentic act alledged to PAGE. 2. Parol evidence is inadmissible to give validity to an instrument 3. The contract of pledge cannot affect third persons, unless proved ADMISSION. 387 457 484 1. In an action on a note given for the purchase money of real pro- 2. A cause will be remanded if the verdict of the jury be contrary 3. A party cannot prevent a cause from being remanded, by admitting AGENT. 1. A contract entered into by one party with a person acting as an 2. A letter in terms equivalent to a demand, addressed by the agent 364 410 333 372 |