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But a title defective in legal form, cannot form the basis of the ten years' prescription. By defect in form, is not meant either a want of title in the grantor, or a deviation from any set words of conveyance, but a nullity arising from the legal incapacity of the grantors-for example, a sale of minor's property by a tutor, without pursuing the formalities required by law.
After ten years also, architects or undertakers are released from all responsibility, on account of brick or stone buildings erected by them; and, after five years, on account of frame buildings, or frames filled with brick.
Moveables are prescribed for, after a public and notorious possession of three years, if the adverse claimant live in the state, unless the thing has been stolen.
Claims of teachers, for lessons given by the month by teachers, are prescribed in one year, unless a settlement has taken place, and a note given. The same rule applies to the charges of keepers of taverns, inns, and boarding houses, for boarding and lodging-to day labourers for their work and materials furnished, and domestics who let their services by the year.
Arrears due on life annuities, alimony, the rent of houses, and rural estates, interest of money, and every thing generally payable by the year, may be prescribed against after five years.
Prescription does not run against minors, and persons interdicted, nor generally against married women. 6 Contra non valentem agere, non currit proscriptio.”
We have omitted to mention several modes of acquiring property, recognised by the code, such as by accession, by occupancy, by the effects of quasi contracts, and torts, nor will we detain our readers by any remarks on the last title, which treats of seizure and sale. It was our design only to call the public attention to a system of laws existing among us, presenting peculiar features, to point out some of those peculiarities, and to inquire into the aptitude of that system to a popular government. To go into a minute analysis, would require more space than we can devote to the subject. Before we proceed to make any remarks on the new code, promulgated in 1824, which is also mentioned at the head of this article, we will simply observe, that the digest of the civil law which we have been examining, has generally been denominated a code ; with what propriety, we leave it to our readers to decide. If by code be meant an entire, regular system of enactment, to serve as the conclusive guide of the courts, in matters of which it treats, to be construed without reference to other enactments, then it does not deserve that appellation. It seems to us, as we have before intimated, rather a synopsis of the jurisprudence of Spain, and bears the same relation to the great body of her laws, that the Institutes of Justinian do to the Pandects, the Code, and the Novels; a mere introduction to the study of the Roman law, and embracing only the first elements of legal science. It continued in operation for fourteen years, without any material innovation. During that period, the supreme court of the state, composed of judges of varied learning and deep research, rendered a series of decisions, which disclosed the real character of the code, and proved the danger of being governed by laws, for the most part locked up in a foreign language, and only promulgated for the information of the people at large, by the very adjudications which revealed them, and which were decided by them. In the mean time, a system of kindred features in France had been in operation ; a long train of decisions by the court of cassation, had fixed in a great measure its just interpretation ; it had been illustrated article by article, by almost numberless commentators, of the first order of genius and legal acquirements, whose writings had be
manuals of the profession in Louisiana. All these formed the most ample and splendid materials for the collaboration of a reformed code, which was much wanted. In March 1822, the legislature by a joint resolution declared, that “three jurisconsults be appointed, by joint ballot of both houses of the general assembly, to revise the civil code, by amending the same in such a manner as they shall deem advisable, and by adding under each book, title and chapter of said work, such of the laws as are still in force, and not included therein, in order that the whole may be submitted to the legislature, at its first session, or as soon as said work has been completed.” They were authorized to add a system of commercial law, and a code of practice. In pursuance of this resolution, Messrs. Derbigny, Livingston, and Moreau Lislet, all distinguished for their profound knowledge of the laws, and eminently qualified, were selected to accomplish the difficult and delicate task of giving this last finish to the legislation of the state. We proceed to examine the result of their labours, which was submitted in due time to the legislature, and after various modifications proposed during its discussion, was finally adopted and promulgated in 1824, under the title of “the Civil Code of the State of Louisiana.”
Before noticing the important changes which it has introduced, we will call the attention of our readers to the studied and cautious ambiguity of the general repealing clause, from which the character of the code, either as cuinulative to previous enaetments, or as constituting an original and unique system, is to be ascertained. It declares that “from and after the promulgation of this code, the Spanish, Roman, and French laws, which were in force when Louisiana was ceded to the United States, and the Acts of the legislative council of the legislature of the territory of Orleans, and of the legislature of the state of Louisiana, be and are hereby repealed, in every case for which it has been specially provided in this code, and that they shall not be invoked as laws, even under the pretext that their provisions are not contrary or repugnant to this code.” It would seem that where the code is silent on a particular matter, any pre-existing law on that subject, whether of French or Spanish origin, or of native growth, would be considered as still in force; and we believe it has been already decid. ed, that the title of seizure and sale, contained in the old code, and not expressly re-enacted in the new, is yet in operation. But where the new code enacts a general rule on a given subject, and a Spanish law on the same subject contains an exception not specially provided for in the code, does the exception yet exist ? Can the Spanish law be invoked at all as a statute in pari materiâ ? and will such be considered as “a case for which it has been specially provided .?” These are questions which we are not prepared to answer ; and indeed, we fear that the admirers of codification will be disappointed, if they expect to find the new code that perfect guide which carries its own light with it, which requires no aid in its construction and application, from the wisdom of the past, and from the pre-existing legislation of the country. The truth is, that no code ever provided specially for cases, in the literal signification of the word. The most that can be done, is to establish general principles, and leave their application to cases as they arise, to the appropriate department of the government. Undoubtedly that is the best system, which by a full, simple, and unambiguous enunciation of elementary principles, leaves the least room to judicial discretion, as he is the best judge who takes the least upon himself, and who considers in the language of Cicero, the law as but the silent magistrate, and the magistrate as but speaking law. But there will always grow up by the side of the most faultless human legislation, a species of secondary legislation ; a jurisprudence des arrêts, which consists, not of new principles ingrafted into the system by the courts, but of the de. velopment of the system itself, in its practical application to particular cases, as they arise in the complex transactions of society, not distinctly anticipated by the legislator ; but in the last analysis they will be found to be mere corollaries, precisely as the most complicated calculations of the mathematician, resolve themselves into a few simple and obvious elements.
The new code, independently of the great changes which it has introduced, to some of which we shall advert by and by, is much more full and explicit in the doctrinal parts, than the former digest. The theory of obligations particularly deserves to be mentioned, as comprising in a condensed, and even elegant form, the most satisfactory enunciation of general principles. The jurisconsults appear to have profited greatly by the great work of Toullier, entitled “Le Droit Civil Français,'' recently published in France, and often referred to in the reports before us. It is
indeed a work of rare excellence, at once profound, lucid, and eloquent. Many of the decisions of the supreme court have been incorporated into the code. The general arrangement of matter is the same; the same division into books, titles, and chapters, and subdivision into articles, except that the articles are numbered from the beginning through the code, which renders it much more convenient for reference. It contains 3522 articles, and a title has been added to fix the signification of words used in the work.
The most striking and material changes introduced by the new code, relate to the rules of succession, and the enlarged liberty of disposing of property by last will, by curtailing the portions which must be reserved for forced heirs. No change has been made in the succession of descendants. It will be recollected, that by the former system, ascendants, however remote, excluded all collaterals, even brothers and sisters; but by the new code, when the deceased has left no descendants, having father and mother, brothers and sisters, or the descendants of the latter, the estate is divided into two equal portions, of which one half goes to the parents to be equally divided between them, and the other half to the brothers and sisters, or their representatives; but if only one parent survive, then the portion which he or she would have inherited, goes to the brothers and sisters, thus giving them three-fourths, and the surviving parent onefourth of the estate. But if the deceased has left neither father nor mother, nor brother nor sister, nor descendants of the latter, but only more remote descendants, they inherit the whole, to the exclusion of other collaterals. If there be ascendants in the same degree, in both paternal and maternal lines, the estate is equally divided between the two lines, whether the number of ascendants be equal or not in each line, and they inherit per capita; but if there be in the nearest degree only one ascendant in the two lines, he excludes the more remote. Ascendants inherit exclusively the real estate, and slaves given by them to their children, or other descendants, if the objects themselves exist in the succession ; and if they have been alienated, and a part or the whole of the price unpaid, they are entitled to receive it, and they also succeed to the right of redeeming the property thus alienated, if sold under such a condition. They also take back from the estate of a child deceased without issue, the dower settled by them in money.
Brothers and sisters, or their descendants, exclude more remote ascendants than father and mother, and inherit in concurrence with the latter, as above stated. The partition among brothers and sisters is made in equal portions, if they are all of the same marriage ; but if there be some full brothers, and others of the half blood, the estate which they are to inherit, is divided VOL. IV.-NO. 7.
into two portions, of which the full brothers together take one half, and come in for their proportion of the other half, in concurrence with the half brothers, according to the number of all the brothers taken together.
The new code regulates the disposable portion and the reserved portion, or legitime, as follows: Ascendants can dispose of two-thirds of their estate, if they have but one descendant; if two, they may dispose of one half only; and one-third, if they have more than two children. More remote ascendants are no longer considered as forced heirs ; their descendants may dispose of the whole of their property without reservation in their favour.
The natural father may give by donation inter vivos, or mortis causâ, to a natural child, duly acknowledged, one-fourth of his property, if he leave legitimate ascendants, or brothers, or sisters, or their descendants, reserving three-fourths for them; and he may give one-third to the prejudice of more remote collaterals, and in both cases he can give no part of the residue to strangers.
The forms of testaments remain as before, except that two kinds of less formal wills are recognised. The one is what is called the military testament, which may be made by persons employed in armies in the field, or on a military expedition, and may be received by a commissioned officer, in presence of two witnesses. It may be, in certain cases, received by the surgeon ; but becomes null six months after the return of the testator to a place where he has an opportunity of employing the usual forms. Testaments made during a voyage at sea, may be received by the captain or master in presence of three witnesses, taken by preference from among the passengers ; in default of them, from among the crew: but it is not valid, unless the testator dies at sea, or within three months after arriving where he is able to employ the usual forms.
Some of the clauses of disinherison, recognised by the old code, have been expressly abrogated, to wit: in relation to descendants, the ninth and twelfth above enumerated, and in relation to ascendants, the eighth ; leaving the rest in force. Testaments made abroad, are considered as valid, in relation to property in the state, if formal, according to the laws of the place where they are made. Another feature of great liberality has ever marked this system ; that aliens are permitted to inherit, and transmit by inheritance, any species of property in the state.
The new order of succession conforms to that established in France by the Code Napoleon, and will be found to be copied almost precisely from the 118th novel of Justinian, from which the Spanish rules of descent had deviated in some essential particulars. The law, in preferring brothers and sisters to a