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Note.—Since writing the foregoing, an examination of Colden's Life of Fulton leads to the conclusion, that there is an error in the dates of Mr. Hutchins, and that Mr. Fulton was not the person who accompanied Chancellor Livingston with Fitch, when he steered the boat on the Collect Pond, 1796-7. In the year 1793, Fulton was in England, in correspondence with Lord Stanhope. In the spring of 1796, we find Fulton published, in London, his Treatise on Canal Navigation. In 1797, he was in Paris, and tried his experiments, on the Seine, in December of that year. In 1798, we find him in England. In 1801 and 1802, we find him again in France, trying his steamboat and torpedoes, at Brest, in company with Livingston. In 1804 he was invited to England by the ministry, to try his experiments on submarine navigation, which he satisfactorily performed, in 1805, in presence of Pitt, but was not adopted by the Board of Admiralty, as too barbarous for civilized warfare. In the fall of 1806 he left England, and arrived in New York in December of that year. In 1807 he commenced the construction of the Clermont. From the foregoing, it is clear that Mr. Hutchins may lead others, like myself, into error, in supposing Mr. Fulton was the person on board the boat with Fitch and Chancellor Livingston. The Life of Fitch, by Sparks, shows that he used wheels, although the spiral screw, as stated to be used by Fitch, in 1797, is certainly a novelty. I should have suspended all remarks on this subject, had not Mr. Hutchins, subsequent to the writing of this article, and prior to this note, called on me with the letter of Alderman Anthony Lamb, stating he had seen the boat of Fitch on the Collect, as stated, but there is evidently some error in “the lad Hutchins’” statement, “that Fulton was on board the boat, 1796-7.” The Chancellor may have been, as he was addressed by Fitch as “your honor,”—so says Hutchins. Fitch died in Kentucky, in 1798. Full justice is done to his memory in Sparks’ American Biography, Vol. XVI., new series, WI., p. 83. There can be no doubt but that Messrs. Fulton and Livingston had free intercourse with Fitch, and were acquainted with his plans to apply steam to propel boats, by the crank motion, prior to their going to Europe. The Jersey trial shows this. J. E. B.
Art, VIII–THE LAW OF DEPTOR AND CREDITOR IN LOUISIANA,
The mercantile connection has become so intimate and so vast, and is still so rapidly increasing, between the great commercial cities of the North and those of the South, that some knowledge of the rights and duties, and liabilities, of the merchant, as they are established by the peculiar system of jurisprudence of the state of Louisiana, has at length become a matter of real necessity, to the safe and prosperous conduct of business affairs.
In every other state in our Union, the general law of the land—apart from the local statutes of the several legislatures—is that which has been handed down to us from British forefathers; the laws of Alfred and Ed. ward, the immemorial customs and parliamentary sanctions of Great Brit
ain—the common law, softened of those asperities which suited it to the severe despotisms of the ancient, or the limited monarchy of modern times, and adapted, as far as human ingenuity can adapt it, to our own institutions. In Louisiana, the fundamental law is that which has been transmitted to its people from ancient Rome; the laws of Theodosius and Justinian, the codes, the pandects, the novels, the praetorian edicts and imperial rescripts—the civil law—stripped of those peculiarities which fitted it for the despotic monarchies of Rome and Byzantium, and moulded into conformity to the spirit and genius of a free republic. The protection of right, which is but another name for the administration of justice, is differently attained under these different systems of jurisprudence, and rights and duties, and liabilities, are differently defined, and imposed and enforced. Much critical and learned discussion has been expended upon the relative merits of these two systems of jurisprudence, in elevating the policy, subserving the interests, protecting the rights, and promoting the common convenience of a community. In their opinions, civilians and common law jurists are as wide asunder as are the systems themselves. A consideration of this subject, even superficially, would be apart from the humble purpose of this article; and even though the writer possessed that skill and learning requisite to its more extended discussion, this is not the forum in which to treat the great issue with that dignity which its importance demands. It is the simple design here to point out some of those peculiarities in the laws of Louisiana, which may be supposed most materially to affect the interests of business men whose rights and obligations are, from time to time, subjected to their construction and control. But it may be permitted to express here a regret that there should be such a conflict between the jurisprudence of different portions of our common country as to complicate the private relations of its different citizens, so that he who knows his rights and the manner in which they are protected under the laws of New York, has yet but little appreciation of their extent or limitation, or mode of enforcement, under the laws of Louisiana. In a country like ours, composed of a federal government and some twentynine distinct and independent sovereignties, it is scarcely to be expected that there should not be material local variations in the forms of proceeding in the administration of justice; but surely it is a source of no little regret that there should be discordance in the fundamental laws of the several states, by which the rights and obligations of the citizens of a common country, are defined, established and imposed. With the increase of commerce, and the consequent increase of all those relations which render the interests of a people identical, this evil is becoming the more felt. May we not hope that the day is not far distant when it shall cease ! and as we are one in interest and in feeling, bound together in the bonds of a common constitution, and inseparable in destiny, that the private rights of the American citizen, of whatever state in the Union, may be defined and construed by the same general laws; that the time may come when the noble boast of the Roman orator may be more truly than now, that of the citizen of our Republic: “Nonerit alia lew Roma, alia Athenis, alia nunc, alia post hac ; sed et omnes gentes et omni tempore una lew, et sempiterna, et immortalis, continebit.” The judiciary of Louisiana is composed of a supreme court, of appellate jurisdiction, only, consisting of five judges, (unless the number has been changed by the new constitution,) and of district courts of original jurisdiction, five of which are in the city of New Orleans, three of general, one exclusively of probate, and one of criminal jurisdiction. The appellate jurisdiction of the supreme court of Louisiana is somewhat anomalous in its nature. It is the duty of the clerk of the inferior court, at the trial of a cause where the right of appeal exists, (which is in all cases where the matter in dispute exceeds the sum of $300,) at the request of either party, to reduce to writing the testimony of the witnesses as it is delivered. In case of appeal, a transcript of the entire testimony, with the documentary evidence and all the proceedings had in the case, is transmitted to the supreme court, and that tribunal is clothed with the power of review of the whole case, as well the questions of fact as of law which are involved in it, and, without sending the case back, or ordering a new trial, to render such final judgment, as, in its opinion, should have been rendered in the court below. There is no separate chancery tribunal in Louisiana, but all the courts, under the provisions of the articles of the civil code, are clothed with many of the powers peculiar to a court of equity, and the forms of proceeding are, in some respects, analogous to those in chancery. The process by which all suits are commenced, is a simple petition, which states the claim of the plaintiff as concisely as possible, and without any of the technical phraseology of the common law declaration, and closes by praying for the citation of the defendant to appear and answer, and after due proceedings, a judgment for the amount or thing claimed. To this petition, the defendant has ten days to answer, after its service upon him with a citation. Within the ten days, he may file what is called a “dilatory exception,” to the petition, an exception which does not go to the merits of the claim, but sets up some defect in matter of form. This is heard, and decided upon, summarily, by the court; and if not filed within the ten days, the right to interpose the objection is lost. A “peremptory exception” may be filed at any stage of the proceedings, and may even be taken advantage of in the supreme court after appeal. It is an objection which goes to the whole merits of the claim, such as prescription, or what, at common law, is called the statute of limitations. This, too, is tried and determined summarily, by the court, without the intervention of a jury. But if neither dilatory nor peremptory exception be filed, an answer to the petition must be put in before the expiration of ten days, or judgment by default is rendered against the defendant. Notice of this judgment is served upon the defendant, and three days from service of that notice are allowed him to set aside the default and file his answer. If he fail to do this, the plaintiff may have his judgment by default confirmed, which he can only do by proof of his claim. The issue is made between the parties by the petition and answer simply; and special pleading being entirely unknown to the practice under the civil law, it may well be supposed that, oftentimes, the issue is anything but single, certain, or material. Almost any matter of defence may be given in evidence under an answer, which is merely a general denial of the allegations of the petition. Upon a judgment in a case not appealable, the plaintiff is entitled to his execution forthwith ; upon others, only after the expiration of ten days from the service of notice of judgment. In all cases, whether subject to appeal or not, and even though the judgment be appealed from, the plaintiff is entitled to a certificate of the judg
ment, from the clerk, that he may have it registered in the office of the recorder of mortgages. From the date of this registry, the judgment operates as a judicial mortgage upon the immovable property and slaves of the defendant, within the parish where it is registered; and if the plaintiff so desires, he may have this registry made in every parish in the state. It would be tedious and uninteresting to go into the minute details of the forms of proceeding in the recovery of the judgment and the satisfaction of the execution. Only some few of these will be noticed as peculiar in their nature, and serving to give some idea of the mode in which rights are protected. Imprisonment for debt is abolished in Louisiana. There are, however, certain cases in which a defendant may be arrested, similar to those provided for in other states. This is, in all cases, upon the oath of the plaintiff or his attorney, either that the defendant has absconded from another state, to avoid the payment of the debt for which he is pursued, or that he is on the eve of departure from the state, before judgment can be had against him in the ordinary course of judicial proceedings, and without leaving suf. ficient property to satisfy the plaintiff’s demand. From this arrest the defendant may be released upon executing his bond with surety, to the plaintiff, in double the amount of the claim, the condition of which bond is, that the defendant will not depart from the state for three months. If this condition be broken, the surety becomes absolutely liable for the debt, without the privilege of a surrender of his principal. This arrest the defendant may have set aside by disproof of the allegations of the affidavit upon which the arrest was founded, and this he is entitled to have tried by the court, summarily, and with preference over all other matters, upon a rule to show cause. There are various processes, conservative of the rights of the plaintiff, which may be resorted to at the institution of the suit, or pending the proceedings. There is no attachment of property upon mesne process, except upon the oath of the plaintiff or his attorney, either that the defendant resides out of the state, or that, being within the state, he conceals himself to avoid citation, or that he is concealing, parting with, or disposing of his property, to avoid the payment of the claim. Upon the filing of this oath, and also the plaintiff’s bond to the defendant, with surety conditioned to pay him such damage as he may sustain in case it should be decided that the attachment was wrongful, his property may be attached or sequestered. The property thus attached may be released by the defendant's executing his bond, with surety, to the sheriff, conditioned for the forthcoming of the property to satisfy the execution which may be obtained upon the payment of the same ; and this attachment may be set aside upon a rule to show cause, by disproof of the oath upon which it was founded. This, also, is tried summarily by the court, but is not entitled to that preference which is given to issues concerning the liberty of the person. The “provisional seizure” of property upon the institution of the suit, is another conservative process, peculiar to the laws of Louisiana. The right to a provisional seizure exists in all cases where the plaintiff has a lien or privilege upon the specific property seized. These liens and privileges are numerous, and of great importance, under the provisions of the code. They will be more fully considered in another connection. No bond is required from the plaintiff to obtain the provisional seizure, but simply his affidavit of the facts upon which the right to it is based.
The purposes of the creditor's bill in chancery are attained by a very simple process, under the laws of Louisiana. Whenever the plaintiff is entitled to apply for and obtain a writ of fieri facias upon his judgment, he may, upon his affidavit that he has reason to believe that a third person has property or money, or effects, in his hands, or under his control, belonging to the defendant, have such third person cited to appear and answer written interrogatories, under oath, upon the subject matter. He is charged or discharged, according to the evidence; and if he fail or refuse to answer, or answers evasively or indirectly, he is liable to have judgment rendered against him for the plaintiff’s claim. The call in warranty, as it exists in Louisiana, is peculiar to the laws of that state. In all cases in which a defendant, in case judgment be rendered against him, would be entitled, for any cause, to have the same judgment over against a third person, he may have such third person cited to appear and answer in like manner as if he were the original defendant. The third person, upon his appearance, may cite a fourth, and so on, and the case is not at issue until the answer is filed, of the last defendant in warranty, nor can a default be taken against the original defendant, until the expiration of the time allowed for the appearance of the last. The petition of intervention, is another form of proceeding under the code of practice, peculiar in its character, and designed to attain the purposes which, in other states, can only be had by chancery process. Any person claiming a right or interest in the subject-matter of the controversy, either as against the plaintiff or the defendant, may intervene in the suit commenced, and, by petition, set forth his claim, and have the parties cited and notified of his intervention. In this manner, there are, oftentimes, many parties plaintiffs and defendants in one suit. This occurs in a large class of cases in which privileges are to be enforced upon specific property. The property is seized at the suit of one creditor, and forthwith, the vendors, and lessors, and material-men, and workmen, and an infinity of others, all having privileges upon the property under the code, intervene by petition in the original suit, their rights are passed upon, and, upon the sale of the property, they are paid in the order of distribution established by the court, according to the nature and priority of their respective privileges, as classified by the code. It may as well be stated here, that the law of Louisiana requires that the proceedings in the various courts shall be in both the French and English languages, when the mother tongue of the defendant is French. The trial by jury is under regulations in Louisiana quite different from those of any other state in the Union. All causes are tried by the court, without the intervention of a jury, unless a jury is prayed for, either by the plaintiff in his petition, or by the defendant in his answer. The party praying for a jury must advance the jury fee. If he fail to do this, the case is placed upon the court calendar, and if it be called and set down for trial by the other party, the right to a trial by jury is lost. The right of peremptory challenge may be exercised by either party to a limited extent, (to the number of ten, it is believed,) and the causes of challenge are numerous and peculiar; the chief of which is a want of knowledge of the French language, if the parties and witnesses are French, or of the English, (which is more usual,) if the parties and witnesses speak in that language. The code of practice gives to the courts the power of direct.