« ՆախորդըՇարունակել »
he did not know about a mill going up stream, and came to inquire about it.” One of the passengers, an Irishman, seeing through the simple. minded miller at a glance, became his cicerone ; showed him all the ma. chinery, and the contrivances by which one wheel could be thrown out of gear when the mill was required to come about. After finishing the ex. amination, said he," That will do ; now show me the mill-stones. said the other, " that is a secret which the master,” pointing to Fulton, “has not told us yet; but when we come back from Albany with a load of corn, then, if you come on board, you'll see the meal fly.” Dennis kept his countenance, and the miller left.
As we passed West Point, the whole garrison was out, and cheered as we passed. At Newburgh it seemed as if all Orange county was collect. ed there ; the whole side-hill city seemed animated with life. Every sail. boat and water-craft was out; the ferry-boat from Fishkill was filled with ladies. Fulton was engaged in seeing a passenger landed, and did not observe the boat until she bore up nearly alongside. The flapping of a sail arrested his attention, and, as he turned, the waving of so many
hand. kerchiefs, and the smiles of bright and happy faces, struck him with sur. prise ; he raised his hat, and exclaimed, “ That is the finest sight we have seen yet.”
Fulton, in his letter to Barlow, (22d August, 1807,) adds to these remi. niscences : “My steamboat voyage to Albany, and back, has turned out rather more favorable than I had calculated. The distance to Albany is one hundred and fifty miles. I ran up in thirty-two hours, and down in thirty hours. The latter is just five miles an hour. I had a light breeze against me the whole way going and coming, so that no use was made of my sails, and this voyage has been performed wholly by the power of the steam-engine. I overtook many sloops and schooners beating to the windward, and passed them as if they had been at anchor.
“ The power of propelling boats by steam is now fully proved. The morning I left New York, there were not, perhaps, thirty persons in the city who believed that the boat would ever move one mile an hour, or be of the least utility; and while we were putting off from the wharf, which was crowded with spectators, I heard a number of sarcastic remarks.”
It is well known that, at the end of the voyage, a certificate of its full success was given, which we republish in connection with the above. Judge Wilson is now the only survivor of those who joined in that certifi. cate; the last one, we believe, now living, who was on board that boat, whose journey was of more importance to the Union than any other since the days of Columbus :
“On Friday morning, at eighteen minutes before seven o'clock, the North River boat left New York, landed one passenger at Tarrytown, (twenty-five miles,) arrived at Newburgh (sixty-three miles) at four o'clock in the afternoon, landed one passenger there, arrived at Clermont, (one hundred miles,) where two passengers, one of whom was Mr. Fulton, were landed, at fifteen minutes before two o'clock in the morning, and arrived at Albany at twenty-seven minutes past eleven o'clock, making the time twenty-eight hours and three-quarters, distance one hundred and fifty miles.
“The wind was favorable, but light, from Verplanck's Point to Wappin. ger's Creek (forty miles ;) the remainder of the way it was ahead, or there was a dead calm.
" The subscribers, passengers on board of this boat, on her first pas.
sage as a packet, think it but justice to state that the accommodations and conveniences on board exceeded their most sanguine expectations.
“Selah Strong, G. H. Van Wagenen, Thomas Wallace, John Q. Wil. soni, John P. Anthony, Dennis H. Doyle, George Wetmore, William S. Hick, J. Bowman, J. Crane, James Braiden, Stephen N. Rowan.
“ Albany, September 5th, 1807.”
We cannot forbear two other extracts from Fulton's letter; the first is a wonderful prophecy, long since realized beyond the highest hopes of him who made it; the other is another proof how seldom men know the real value of their own acts at least, really great men.
“ It will give a quick and cheap conveyance to merchandise on the Mississippi, Missouri, and other great rivers, which are now laying open their treasures to the enterprise of our countrymen.'
“However, I will not admit that it is half so important as the torpedo system of defence and attack.'
The “torpedo system” could not have covered the land with prosperity, and made an empire of the West, as the steamboat has done. Every hour is adding confirmation to Fulton's prophecy of the results of his boat, as an abiding, practical benefit, and blessing to mankind; while the torpedo would be forgotten but for being associated with his name.
We hope that Judge Wilson will furnish, if in his power, other details of this most interesting occasion.
Art. VI.--THE LAW OF DEBTOR AND CREDITOR IN LOUISIANA.*
The prescription of the civil law, (answering to the common law statutes of limitation) is an interesting branch of the jurisprudence of Louis. iana, and important in its operation upon the relation of debtor and creditor.
The statutes providing for, and regulating the limitation of actions, have been justly denominated "statutes of repose.” Provisions of a like na. ture have found their way into the systems of jurisprudence of every civil. ized community. They have their origin in that wise policy which sees the well-being and prosperity of a community in the suppression of litiga. tion, and the quieting of the titles to property; and are adopted to meet and arrest the litigious spirit in man, in the just apprehension that “lest while men are mortal, lawsuits should be immortal."
They have been said to rest upon the legal presumption-arising from the lapse of time during which a debt or property has been unclaimed from the debtor or possessor by the creditor or lawful owner—that the debt has been paid, but the evidence of payment has been lost ; that the possessor of property once had a good and sufficient grant, but that his title has been destroyed.
The interposition of these provisions, both under the civil and the com. mon law, as a bar to a suit for the possession of property or the recovery of a debt, is no longer regarded by the courts as an odious defence, to be discouraged by a strict construction against the defendant; but the law is administered in the spirit of that theory of its origin, so beautifully ex
* For the first artiele on the same subject, see Merchants' Magazine for July, 1846, (Vol. XV., No. I., p. 70.)
pressed by one of the ablest and most eloquent lawyers of our age : * Time is represented as holding a scythe in one hand, and an hour.glass in the other. With the former he is forever destroying our evidences, and mowing down the monuments of our possessions. But the wisdom of the lawgiver has declared, that with the latter, he shall be continually meting out the durations of time at which those evidences and those muniments shall no longer be necessary.”
By the articles of the civil code of Louisiana, PRESCRIPTION is declared to be of two kinds : 1st. That by which property is acquired; and 2d. That by which debts are discharged. First, with regard to the acquisition of property.
The duration of time of its possession to bar its recovery by the legal owner, depends
1st. Upon the nature of the property.
2d. Upon the character, if any, of the titles under which the possessor holds or claims; and
3d. The presence or absence from the country of the legal owner.
If the property be immoveable, its possessor may plead prescription as a bar to the claim of the real owner, after the lapse of either ten, twenty, or thirty years of possession, according to the circumstances under which his possession has been held. If the real owner be all the while present in the country, his right is prescribed by ten years; if he be absent, by twenty; but the possessor, to be entitled thus to prescribe, must be a possessor in good faith, and by a just title ; and the term “just title,” in this connection, is defined, by the civil law, to mean a title apparently sufficient to convey the property. When the real owner is a part of the time present and a part of the time absent, it is provided that two years of absence shall be reckoned as one of presence. Thirty years' possession sustains a plea of prescription against the claim of the real owner, whether pres. ent or absent, whether the possessor has or has not a just title, and whether he holds in good or bad faith. And, in this respect, there is a broad dislinction between the provisions of the civil and those of the common law; for, by the latter, no length of possession is sufficient to bar the title of the legal owner, unless that possession be adverse to him; and to constitute an adverse possession, good faith, and, if a title, a just title, (under the civil law definition of that term,) are absolute pre-requisites. Nothing can be more unjust than the very general and popular belief, that where the common law prevails, as in New York, the lapse of twenty years, or any other length of time, during which the rightful owner has neglected to claim his land, is sufficient, in all cases, to perfect the title of the possessor, by raising on his behalf the legal presumption of a grant. This presumption is never raised but in favor of the possessor who has held in good faith, and where the possession originated in a paper title ; this good faith is directly rebutted, when, upon the exhibition of that title, it appears, upon its face, to be absolutely void.
Thus, where the possessor holds lands under a judgment or decree of an incompetent court, or a tribunal which, at the date of the judgment, was functus officio for the purposes of rendering such a judgment, or by a grant from an individual or individuals, in an official capacity, who, at the date of this grant, had, by law, no such official capacity, (as a court for the imposition of fines and the creation of forfeitures of estates, after the ratification of the treaty of peace, or the commissioners of forfeitures after
such ratification,) the lawful owner, or his heirs, may recover the property notwithstanding any length of time during which he or they have neglected to demand its restoration. But this, as we have seen, is not the case in Louisiana ; for, by the civil law, thirty years' possession bars, by prescription, the right of the legal owner, whatever may have been the char. acter or origin of the possession.
Prescription may be pleaded to the claim of the rightful owner of slaves by the possessor who has held them one-half the length of time required to sustain such plea against a elaim to immoveable property; and prescription may be pleaded to the claim of the legal owner of moveable property, by the possessor who has held the same three years.
We have seen in what manner the lapse of time necessary to sustain the plea of prescription is affected by the absence of the legal owner. With regard to the other disabilities to institute a judicial claim, such as infancy, lunacy, imprisonment, (coverture is not a disability by the civil law,) the time only begins to run from the cessation of such disability.
The second general division of the subject of prescription by the civil code, is, That by which debts are discharged.
By the common law, the rules establishing the limitations of time sufficient to bar the recovery of debts, are few and simple ; and the statutes of the several States have made but little variation from the common law provisions. Generally, the only division of debts, in this connection, is that of debt by simple contract, and by specialty or record. To recover upon the former, no action can be sustained after the lapse of six years from the time when the cause of action accrued; upon the latter, after the lapse of twenty years. By the provisions of the civil code, debts, as affected by prescription, are divided into numerous classes, and are discharged, in a longer or shorter time, according to the class in which they are enumerated. This classification seems, in many instances, purely ar. bitrary, and it is difficult to perceive why a debt in one class should be prescribed by the lapse of ten, five, or three years, rather than one, or vice versa.
No action can be sustained to recover fees due a justice of the peace, a constable, a notary, or the compensation of a schoolmaster, or an instructer in the arts and sciences, who teach by the month, unless the action be brought within one year from the time of the performance of the service. The lapse of one year, too, prescribes the claims of inn-keepers and boarding-house-keepers for board; of retailers, of workmen, laborers, and servants; the claims of ship-owners for freight, and the claims of officers, sailors, and the crew of ships and vessels, for their wages.
Claims for supplies and materials furnished vessels, are prescribed, too, by the lapse of one year ; and this prescription operates upon the items in account of supplies and materials furnished, and of labor or service per. formed, of a date older than one year, even though there have been a reg. ular continuation of supplies furnished, or of service or labor done, down to the time of the commencement of the suit. But, as to the claim for wages of officers or crews of vessels, the one year does not begin to run until the termination of the voyage.
No action for slander, or to recover any damage resulting from an of fence, or quasi offence, can be brought after the expiration of one year from the time when the cause of action accrued. The lapse of one year, too, bars a claim for the non-delivery of merchandise shipped on board
any kind of a vessel ; and also any claim for damage sustained by mer. chandise shipped on board any kind of vessel, or for any damage which may have occurred by reason of a collision of any kind of vessels ; in these cases, the one year's prescription begins to run from the day of the arrival of the ship or vessel.
Claims for arrearages of rent, for annuities, for alimony, for the hire of moveables, or immoveables, are prescribed by the lapse of three years. Three years are required, also, to sustain a plea of prescription to a claim for money lent; for the wages of overseers, clerks, and secretaries; also to claims for compensation by schoolmasters or teachers who teach by the year or quarter ; and to the claims of physicians, surgeons, apothecaries, judges, sheriffs, clerks, and attorneys.
Bills of exchange, promissory notes payable to order or to bearer, and all choses in action which are transferable by endorsement or delivery, are prescribed by the lapse of five years from the time when the cause of action accrued upon them.
Actions to annul contracts, testamentary or other acts, for the reduction of donations, for the rescission of partitions, and for the guaranty of por. tions, are each and all prescribed by the lapse of five years; and the same time is necessary to sustain a plea of prescription to a claim for damage against a builder or architect, for a defect in the construction or design of a building.
All claims and obligations, not specified in any of the enumerated classes, are declared to be barred by prescription in ten years, if the debtor be present, and in twenty, if he be absent.
The old common law doctrine that the statute of limitations, having once began to run against a debt, is not arrested by the intervention of any disability to enforce the claim, (now, in most of the States, controlled by statute or judicial authority,) never found its way into the judicial con. struction of the civil law prescription. On the contrary, with those qualifications which have been before specified, the time during which a disability to prosecute the claim exists, is, in all cases, deducted from the time established as necessary to sustain the plea of prescription.
With regard to the revival of a claim which has been once barred by prescription, the doctrine of the civil law is much the same as that which has recently prevailed in the courts of common law jurisdiction ; but, as under the civil law, the lapse of time is declared to operate a discharge of the debt, and not a mere loss of the remedy to enforce it, a distinct acknowledgment and unequivocal promise to pay, have always been held necessary to its revival.
There are two rates of interest established by the laws of Louisiana ; the legal and the conventional. The legal interest is five per cent; the conventional is now eight; though, previous to the legislative session of 1844, it was fixed at ten per cent.
The stipulation for, or reservation of, a sum beyond the fixed conven. tional rate, does not, as in New York, involve the loss of the debt; but in such case, the principal only can be recovered.
Interest is not a necessary incident to a claim for moneys due. It must be expressly provided for, or it cannot be recovered, save from the time when a demand of payment of the debt is proved to have been made, or