' (inclcUv*^^^. •^ ^^ ^3^ 'Jfcft \^ CIVIL CODE OF THE STATE OF LOUISIANA: WITH THE STATUTORY AMENDMENTS, FROM 1825 TO 1853, INCLUSIVE ; REFERENCES TO THE DECISIONS OF THE SUPREME COURT OF LOUISIANA TO THE SIXTH VOLUjME OF ANNUAL REPORTS. COMPILED AND EDITED BY THOMAS GIBBES MORGAN, COUNSELLOR AT LA.W, NEW ORLEANS: BLOOMFIELD & STEEL. M.DCqCLXI. EsTEBED, according to Act of Congress, in the year 1S54, by J. B. STEEL, ii me CTerk's Office of the District Court of the United States, for the Eastern District of LouisiansL J('H> F, Teow, I'nawr, Stereotyper, and Electrotrpei; 46, 43 & 50 Greece Street, Beiireen Grand & Brtwme, New York. ADVERTISEMENT. This Edition of the Civil Code of Louisiana is a reprint of the Edition of 1825, published by authority of the State. The Editor lias not felt at liberty to make any alterations in the text, except to correct manifest errors. Numerous discrepancies between the French and English texts have been noted; — many others will doubtless be detected by the critical reader. The Statutes passed during the session of 1853 not having been published in pamphlet form at the time the work was prepared for the press, they are refei*red to by number and date. It was the intention of the Editor to have noted the decisions of the Supreme Court up to the close of the year 1852, but at this date none have been published later than the Sixth Annual. Baton Rotjqb, Louisiana, June^ 1853. ABBREVIATIONS. C. P. — Code of Practice. M. — Martin's Reports, Old Series. 12 vols. N. S.— Martin's Reports. New Series, 8 vols. L. — Louisiana Reports, 19 vols. R. — Robinson's Reports, 12 vols. A. — Louisiana Annual Reports, 6 vols. Digitized by the Internet Archive in 2010 with funding from Duke University Libraries http://www.archive.org/details/civilcodeofstateOOIoui TABLE OF TITLES, ETC. PAOB Preliminary Title. Of the general definition of rights and of the promul- gation of the laws 1 Ohap. 1. Of law ib. 2. Of the publication of the laws ib. 3. Of the effects of laws 2 4. Of the apphcation and construction of laws 3 5. Of the repeal of laws 4 BOOK I. OF PERSONS. Title I. Of the distinction of persons 5 II. Of domicil, and the manner of changing the same 7 III. Of absentees 8 Chap. 1. Of the curatorship of absentees ih. 2. Of the putting into provisional possession the heirs of an absentee 9 8. Of the effects of absence upon the eventual rights which may belong to the absentee 12 4. Of the effects of absence respecting marriage ib. 5. Of the care of minor children where the father has disap- peared ib. Title IV. Of husband and wife 18 Ohap. 1. Of marriage ib. 2. How marriages may be contracted or made ib. 3. Of the celebration of marriages 15 4. Of the nullity of marriages IG 5. Of the respective rights and duties of married persons 17 6. Of the dissolution of marriage 18 7. Of second marriages ib. Title V. Of the separation from bed and board 19 Chap. 1. Of the causes of separation from bed and board ib. 2. Of the proceedings of separation from bed and board 21 TABLE 8. Of the provisional proceedings to which a suit for separation may give occasion ib, 4. Of objections to the action of separation from bed and board 22 5. Of the eftects of separation from bed and board ib. Title VI. Of master and servant 23 Chap. 1. Of the several sorts of servants ib. 2. Of free servants ib. 3. Of slaves 28 Title VII. Of father and child 33 Chap. 1. Of children in general ib. 2. Of legitimate children 3-i Sect. 1. Of legitimacy resulting from marriage ib. 2. Of the manner of proving legitimate filiation 35 Chap. 3. Of illegitimate children 36 Sect. I. Of legitimation ib. 2. Of the acknowledgment of illegitimate children 37 Chap. 4, Of adoption 38 5. Of paternal authority ib. Sect. 1. Of the duties of parents towards their legitimate children, tSL'C, and of legitimate children towards their parents, ib. 2. Of the duties of parents towards their natural children, and of natural children towards their parents 40 Title VIII. Of the minors, of their tutorship, curatorship, and emanoipa tion 41 Chap. 1. Of tutorship ib. Sect. 1. General dispositions ib. 2. Of tutorship by nature 42 3. Of tutorship by will 43 4. Of tutorship by the efiect of the law ib. 5. Of dative tutorship 44 G, Of the under tutor 45 7. Of family meetings 46 8. Of the causes which dispense or excuse from the tutorship 47 9. Of the incapacity for, the exclusion from and deprivation of tutorship 49 10. Of the administration of the tutor ib. Chap. 2. Of the curatorship of minors 57 3. Of emancipation 59 Title IX, Of persons insane, idiots and other persons incapable of admin- istering their estates 01 Chap. 1. Of the interdiction and curatorship of persons incapable of administering their estates, whether on account of in- sanity or of some other infirmity ib. 2. Of the other persons to Avhom curators are appointed C4 Title X. Of corporations 05 Chap. 1. Of the nature of corporations, of their use and kinds ib. 2 Of the rights and privileges of corporations and of their in- capacities ib. 3. Of the dissolution of corporations 08 viii TABLE. Viil BOOK II. OF THINGS, AND OF THE DIFFERENT MODIFICATIONS OF PROPERTY PAGE Title I. Of things 69 Chap. 1. Of the division of things H 2. Of iminovahlcs 71 3. Of movables 72 4. Of estates considered in their relation to those who possess them 73 Title II. Of ownership 74 Chap. 1. General principles ^5. 2. Of the right of accession to what is produced by the thing. . 76 3. Of the right of accession to what unites or incorporates itself with the thing 77 Sect. 1. Of the right of accession in relation to immovables ib. 2. Of the right of accession in relation to movables 79 Title III. Of usufruct, use and habitation 81 Chap. 1. Of usufruct H. Sect. 1. General principles ih. 2. Of the right of the usufructuary 82 3. Of the obligations of the usufructuary 81 4. Of the obligations of the owner 89 5. How usufruct expires 90 Chap. 2. Of use and habitation 93 Title IV. Of predial servitudes or servitudes of land 95 Chap. 1. General principles if>. 2. Of servitudes which originate from the natural situation of the place 97 3. Of servitudes imposed by law ib. Sect. 1. Of walls, fences and ditches in common 99 2. Of the distance of the intermediary works required for cer- tain buildings 101 3. Of sights on the property of a neighbor ib. 4. Of the manner of carrying off rain from the roof ib. 5. Of the right of passage and of way ib. Chap. 4. Of conventional or voluntary servitudes 103 Sect. 1. Of their ditlcrent kinds ib. 2. IIow such servitudes are established 105 3. IIow they are acquired 108 4. Of the rights of the proprietor of the estate to which the servitude is due 110 5. How servitudes are extinguished 112 Title V. Of fixing the limits and surveying of lands 117 VI. Of new works, the erection of which can be stoi)pcd or pre- vented 12] TABLE. ix BOOK III. OF THE DIFFERENT MODES OF ACQUIRING THE PROPERTY OF THINGS. PAOK Preliminary Title. General dispositions 124 Title I. Of successions ib. Chap. 1. Of the ditferent sorts of successions and heirs ib. 2. Of legal successions 126 Sect. 1. General rules ib. 2. Of representation ib. 3. Of succession falling to descendants 127 4. Of succession falling to ascendants 128 5. Of the succession of collaterals 129 Chap. 3. Of irregular successions 130 4. In what manner successions are opened 132 5. Of the incapacity and unworthiness of heirs 134 6. In -what manner successions are accepted or renounced 137 Sect. 1. Of the acceptance of successions ib. 2. Of the renunciation of successions 142 3. Of the henefit of inventory aud the delays for deliberating 144 Chap. 7. Of the seals and of the administration of vacant estates, &c. 150 Sect. 1. Of the seals and of the affixing and taking off the same. . ib. 2. Of the administration of vacant successions 152 § 1. General dispositions ib. 2. Of the inventory of vacant successions and others subject to administration 153 3. Of the appointment of curators of such successions, and of the securitj they are bound to give 155 4. Of the duties and powers of such curators 158 5. Of the causes for which they may be dismissed or superseded 163 6. Of the sale of the effects and of the settlement of the successions thus administered ib. 7. Of the account to be rendered by the curators and the commission due to them 169 8. Of the duties of curators whose administration is prolonged beyond the legal term 172 9. Of the appointment of counsel to absent heirs, and of their dufies 173 Clap. 8. Of partition and of tlie collation of goods 174 Sect. 1. Of the j)artition of successions ib. § 1. Of the nature of partition and of its several kinds. . . ib. 2. Among what persons partition can be sued for 176 3. In what manner the judicial pai'tition is made 178 4. How the notary must proceed in the judicial par- tition 181 Sect. 2. Of collations 186 § 1. What collation is and by whom it is duo ib 2. To whom the collation is due, and what things are subject to it 188 3. How collations are made 189 Sect. 3. Of the payment of debts 195 4. Of the effects of partition 199 X TABLE. PAGB § 1. Of tlio warranty of partition . . 199 2. Of the rescission of partition 201 Title II. Of donations inter-vivos and mortis causa 203 Chap. 1. General dispositions ib, 2. Of the capacity necessary for disposing and receiving by such donations ih, 3. Of the disposable portion, and of its reduction in case of excess 206 Sect. 1. Of the disposable portion and the legitime i&. J2,. Of the reduction of the donations which exceed the dis- posable portion 207 Chap. 4. Of the dispositions reprobated by law in such donations 209 5. Of donations inter-vivos (between living persons) ib. Sect. 1. General dispositions •?&. 2. Of the form of donations inter-vivos 211 3. Of tlie exceptions to the rule of their irrevocability 213 Chap. 6. Of dispositions mortis causa (in prospect of death) 215 Sect. 1. Of the testament il). 2. General rules on the form of testaments ib. 3. Particular rules on the form of certain testaments 218 4. Of testamentary dispositions 219 § 1. Of universal legacies il). 2. Of legacies under an universal title ib. 3. Of disinherison 220 4. Of particular legacies 221 5. Of the opening and proof of testaments, and of testa- mentary executors : 223 6. Of the revocation of testaments and of their caducity 228 7. General rules for the interpretation of legacies 230 Ohap. 7. Of partitions made \>j parents and other ascendants among their descendants 231 8. Of donations made by marriage contract to the husband or wife, &c 232 9. Of donations between married persons, &c 233 Title III. Of obligations 235 Cha'p. 1. Of the nature and division of obligations 'ib. Title rV. Of conventional obligations 236 Chap. 1. General provisions ib. 2. Of the requisites to the formation of a valid agreement 238 Sect. 1. Of the parties to a contract, and of their capability to contract 239 2. Of the consent necessary to give validity to a contract. . 242 § 1. Of the nature of the assent, and how it is to be shown ib. 2. What defects of consent will invalidate a contract . . 245 3. Of error, its division and effects 246 4. Of error in the motive ib. 5. Of error as to the person 247 6. Of error as to the nature and olyect of the contract. 248 7. Of error of law 249 8. Of tlie nullity resulting from fraud 250 9. Of the want of consent arising from violence or threats 251 10, Of lesion 252 TABLE. XI PAGE § 11. General provisions applicable to error, violence and fraud in contracts 255 Sect. 3. Of the object and matter of contracts ib. 4. Of the cause or consideration of contracts 256 Chap. 3. Of the eftect of obligations 257 Sect. 1. General dispositions ib. 2. Of the obligation of giving 258 3. Of the obligations to do and not to do 261 i. Of the damages resulting from the inexecution of obliga- tions 262 5. Of the interpi'etation of agreements 265 6. Of the obligations to perform, as incidents to a contract, all that is required by equity, usage or law 267 7. "What contracts shall be avoided by persons not parties to them 268 § 1. Of the action of the creditors in avoidance of con- tracts, and its incidents ib. 2. What contracts shall be avoided by that action 269 Chap. 4, Of the different kinds of obligations 272 Sect. 1. General division of the subject ib. 2. Of strictly personal, heritable and real obligations 273 3. Of simple and conditional obligations 276 § 1. General provisions ib. 2. Of the suspensive condition 278 3. Of the resolutory condition ib. Sect. 4. Of limited and unlimited obligations as to the time of their performance 279 5, Of conjunctive and alternative obligations 280 6. Of several obligations, joint obligations, and obligations in solido 282 § 1. General provisions , ib. 2. Of the rules which govern several obligations and joint obligations ib. 3. Of the rutes which govern obligations between credi- tors in solido 283 4. Of the rules which govern obligations with respect to debtors in solido ib. Sect. 7. Of the obligations divisible and indivisible 285 § 1. Of the effects of divisible obligations 286 2. Of the effects of indivisible obligations ib. Sect. 8. Of obligations with penal clauses i1>- Chap. 5. Of the manner in which obligations may be extinguished. . . 288 Sect. 1. Of payment ib. § 1. Of payment or performance in general 289 ^ 2. Of payment with subrogation 291 8. Of the imputation of payments 292 4, Of tenders of payment and consignment 293 5. Of the cession of property ib. Sect. 2. Of novation 295 3. Of the remission of the debt 297 4. Of compensation or set-off^ ib. 5. Of confusion 299 6. Of the loss of the thing due *&. 7. Of the action of nullity or of rescission of agreements. . . ib. Chap. G. Of the proof of obligations and of that of payment 300 Sect. 1. Of literal proof 301 xii TABLE. PAGE § 1. Of authentic acts 301 2. Of acts uuder private signature ib. 8. Of copies of titles 302 4. Of recognitive and confirmative acts 304 Sect. 2. Of testimonial proof 305 3. Of presumptions 306 § 1. Of presumptions established by law ib. 2. Of presumptions not established by law 307 Sect. 4. Of the confession of the party il. Title V. Of quasi contracts, and of offences and quasi offences 308 Chap. 1. Of quasi contracts ib, 2. Of otleuces and quasi offences 310 Title VI. Of the marriage contract, &c 312 Chap. 1. General dispositions «5. 2. Of the various kinds of matrimonial agreements 313 Sect. 1. Of donations made in consideration of marriage ib. 2. Of dowry or marriage portion ib. 3. Of paraphernalia or'extra-dotal effects 318 4. Of the community or partnership of acquets or gains 319 § 1. Of legal comnniuity ib. 2. Of the modified or' limited community 322 Sect. 5. Of the clause of separation of property 323 Chap. 3. Of the separation of property prayed for by the wife during marriage a. Title VII. Of sale 325 Chap. 1. Of the nature and form of the contract of sale ib. 2. Of persons capable of buying and selling 326 3. Of things which may be sold ib. 4. How the contract of sale is to bo performed 327 5. At whose risk the thing sold is after the sale is completed. . 328 6. Of the obligations of the seller .' . . , 329 Sect. 1. Of the tradition or delivery of the thing sold ib. 2. Of the warranty in case of eviction of the thing sold ... 332 3. Of the vices of the thing sold 334 § 1. Of the vices of the thing sold which give occasion to the redhibitory action ib. 2. Of the vices, &c., which occasion a reduction of the price 336 3. Of the vices, &c., which the seller has concealed, &c. 337 Onap. 7. Of the obligations of the buyer ib. 8. Of the nullity and rescission of the sale 339 Sect. 1. Of the power or right of redemption ib. 2. Of the rescission of sales on account of lesion 341 Chap. 9. Of sales at auction, or public sales 342 10. Of judicial sales 344 Sect. 1. Of sales on seizure or execution ih. 2. Of the judicial sale of the property of successions 345 Chap. 11, Of the compulsory sale for public ut'ility ib. 12. Of the assignment or transfer of debts or other incorporeal rigbts 346 13. Of the giving in payment 347 Title VIII. Of exchange 348 xiii TABLE. xiil PAGB Title IX. Of letting and hiring 349 Chap. 1. Of the nature of the contract of hire, and of its several kinds ib. 2. Of letting out things 350 Sect. 1. General provisions ib. 2. Of the obhgations and rights of the lessor 351 3. Of the obligations and rights of the lessee 353 4. Of the dissolution of leases 355 Chap. 3, Of the letting out of labor or industry 357 Sect. 1. Of the hiring of servants and Avorkmen ib. 2, Of carriers and Avatermen ib. 3. Of plots for building and other vs^orks 358 Title X. Of rents and annuities 360 Chap. 1. Of the rent of lands ib. 2. Of annuities 362 Title XL Of partnership 363 Chap. 1. General provisions ib. 2. Kules relating to the diiferent kinds of partnership 365 Sect. 1. Of the division of partnership ib. 2. Of universal partnership 366 3. Of particular partnership ib. 4. Of partnership in commendam 36Y 5. Of commercial partnership 369 Chap. 3. Of the obligations of partners towards each other, and to- wards third persons ib. Sect. 1. Of the obligations of partners towards each other ib. 2. Of their obligations towards third persons 372 Chap. 4. Of the different manners in Avhich partnerships end ib. Title XII. Of loan 374 Chap. 1. Of the loan for u 6 or commodatum ib. Sect. 1. Of the naturo of loan for use ib. 2. Of the engagements of the borrower for use ib. 3. Of the obligations of the lender for use 375 Chap. 2. Of the loan for consumption or mutuum ib. Sect. 1. Of the nature of the loan for consumption ib. 2. Of the obligations of the lender for consumption 376 3. Of the engagements of the borrower for consumption. . . ib. Chap. 3. Of loan on interest 377 Title XIII. Of deposit and sequestration 378 Chap. 1. Of deposit in general, and of its different kinds ib. 2. Of deposit properly so called ib. Sect. 1. Of the nature and essence of the contract of deposit. . . . ib. 2. Of voluntary deposit ib. 3. Of the obligations of the depositary 379 4. Of the obligations and rights of the depositor 381 Chap. 3. Of the necessary deposit ib. 4. Of sequestration 382 Sect. 1. Of its different species ib. 2, Of the conventional sequestration ii. 3. Of the judicial sequestration or deposit 383 Title XIY. Of aleatory contracts ib. xiv TABLE. PAGE Title XV. Of mandate or power of attorney 384 Chap. 1. Of the nature and form of mandates ii. 2. Of the obligations of the attorney in fact 386 3. Of the mandatary or agent for both parties 387 4. Of the obligations of the principal, &c 388 5. How the procuration expires ib. Title XVI. Of suretyship 389 Chap. 1. Of the nature and extent of suretyship ib. 2. Of the etFects of suretyship 390 Sect. 1. Of its effects between the creditor and the surety ib. 2. Of its effects between the debtor and the surety 391 3. Of its effects between the sureties 392 Chap. 3. Of the extinction of suretyship ib. 4. Of the legal and judicial sureties 393 Title XVII. Of transactions and compromise 394 Title XVIII. Of respite 395 Title XIX. Of arbitration 398 Title XX. Of pledge 401 Chap. 1. General provisions ib. 2. Of pawn 403 3. Of antichresis 405 Title XXI. Of privileges 407 Chap. 1. General provisions iJ, 2. Of the several kinds of privileges ib. 3. Of privileges on movables ib. Sect. 1. Of general privileges on movables 408 § 1. Of funeral charges ib. 2. Of law charges H, 3. Of expenses during the last sickness 409 4. Of the wages of servants ib. 5. Of supplies of provisions 410 G. Of the privilege of clerks, and that of the wife for her dowry ij. Sect. 2. Of the privileges on particular movables 411 § 1. Of the privilege of the lessor i&, 2. Of the privilege of the creditor on the thing pledged 412 3. Of the privilege of a depositor H. 4. Of the expenses incurred for the preservation of a thing t5. 6. Of the i)rivilege of the vendor of movable effects . . . 413 6. Of the j)rivilege of the innkeeper on the effects of the traveller ij. Sect. 3. Of the privilege on ships and merchandise 414 Chap. 4. Of privileges on immovables and slaves 417 6. Of privileges which both embrace movables and immovables ib. 6. Of the order in which privileged creditors are to be paid. . . 418 7. How privileges are to be preserved and recorded 420 8. Of the manner in which privileges arc extinguished 421 Title XXII. Of mortgages 422 Chap. 1. General provisions ib. Sect. 1. Of conventional mortgages 423 XV TABLE. XV PAGE 2. Of legal mortgages 423 3. Of judicial mortgages 426 4. Of the rank in which mortgages stand with respect to each other 427 Chap. 2. Of inscription of mortgages 429 Sect. 1. Of the mode and etfect of recording mortgages ib. 2. Of the erasure of mortgages 433 3. Of the office of mortgages, and duties of recorders 435 Chap. 3. Of the etfect of mortgages and privileges 437 Sect. 1. Of their etiect with regard to the debtor ib. 2. Of their eftect against third possessors, and of the hy- pothecary action ib. Chap. 4. How mortgages expire or are extinguished 439 Title XXIII. Of occupancy, possession, and prescription 440 Chap. 1. Of occupancy ib- 2. Of possession 442 3. Of prescription 446 Sect. 1. General provisions ib. 2. Of the prescription by which property is acquired 447 § 1. Of the prescription of ten and twenty years 448 2. Of the prescription of thirty years 450 3. Of the prescription of movables 451 4. Of the causes which prevent the prescription tending to the acquisition of property iJ). 5. Of the causes which interrupt prescription 452 6. Of the causes which suspend the course of prescrip- tion 453 Sect. 3. Of the prescription which operates a release from debt. . ib. § 1. Of the prescription of one year 454 2. Of the prescription of three years 455 3. Of the prescription of five years ib. 4. Of the prescription of ten years 456 5. Of the prescription of thirty years 457 6. Of the rules relative to the prescription operating a discharge from debts ib. Title SXIV. Of the signification of sundry terms of law employed in this Code 458 CIVIL CODE OF THE STATE OF LOUISIANA. PRELIimARY TITLE. OF THE GENERAL DEFINITIONS OF RIGHTS AND THE PROMULGATION OF THE LAWS. CHAPTER I. OF LAW. Article 1. — Law is a solemn expression of Legislative will. 12 L. 815 ; S N. S. 6S0. Art. 2. — It orders, and permits, and forbids ; it announces rewards and punishes; its provisions generally relate not to solitary or sin- gular cases, but to what passes in the ordinary course of affairs. Art. 3. — Customs result from a long series of actions constantly re- peated, which have by such repetition, and by uninterrupted acquies- cence, acquired the force of a tacit and common consent. 4 L. 211, 160 ; 7 L. 211, 524 ; 11 L. 357 ; 13 L. 516 ; 18 L. 380 ; 4 E. 381 ; 1 N. S. 192. CHAPTER IL OP THE PUBLICATION OF THE LAWS. Art. 4. — As laws cannot be obligatory without being known, they must be promulgated by the Governor of the State. The laws shall be directed to the authorities intrusted with their execution or application, and to such other persons as the law has desig- 2 OF LAWS. nated or may designate, in the form and manner which is, or may be prescribed, to ensure their most extensive publicity. The Clerks of all the Courts of Justice of this State, shall insert in a register, to be kept for that purpose, the titles of all the laws which shall have been directed to them, together with the day on which they shall have received them. 5 N. S. 482 ; 12 L. 815 ; 8 L. 485. Sec 2 N. S. 455. Art. 5. — The laws shall be executed through every part of this State, from the moment they shall be promulgated, in the manner pre- scribed. 12 L. 31.\ Art. 6. — The, promulgation made by the Governor, shall be pre- sumed to be known in the parish which is the seat of government, three days after the day of promulgation, and in each of the other parishes, after the expiration of the said period, with the addition of one day for every four leagues between the place in which the promulgation shall have been made, and the place where the Court for such parish is held. Stat. 2\th March, 1827, p. 172.—^ I. From and after the pas- sage of this act, all the laws enacted by the Legis^iture of this State shall be considered promulgated at the place where the seat of govern- ment is located, the day after the publication of such laws in the gazette authorized to publish the law's of this State, and in all other parts of this State, thirty days after the publication in said gazette. ^ 2. The duties now imposed on the Clerks of the Courts of this State, to insert in a register, to be kept for that purpose, the titles of all the laws which shall have been directed to them, together with the day on which they shall have received them, shall not be considered as necessary to the promulgation in such laws. ^ 3. The Secretary of State shall be bound to keep a register, in which he shall write down the title of all the laws passed by the Legis- lature, together with the date of the day when they sliall have been re- spectively published in the State paper, and that said register thus kept, or the certificates delivered from the same by the Secretary of State, under his official signature and seal of the State, shall be full evidence, both before the courts and elsewhere, of the publication of said laws ; Provided, Jiowcver, that whenever the promulgation of any law is con- tested, tte person contesting the same shall be held to prove the fact. 12 L 815. Art. 7. — After the promulgation, no one can allege ignorance of the law. CHAPTER III. OF THE EFFECTS OF LAWS. Art. 8. — A law can prescribe only for the future : it can have no retrospective operation, nor can it impair the obligation of contracts. Const. 1852, art. 105. — No ex jwst facto law, nor any law impairing the obligation of contracts, shall be passed ; nor vested rights be di- vested, unless for purposes of public utility, and for adequate compen- eation previously made. See ArL 1940 ; 8 N. S. 175 ; 1 L. 843 ; 12 L. 355, 552 ; 16 L. 442 ; 2 A. ISO ; 6 A. 600. 3 OF THE LAWS. '6 Art. 9. — The law is obligatory upon all inhabitants of the State in- discriminately : the foreigner, whilst residing t"here, and his property within its limits, are subject to it. 12 L. 855, 552 ; 16 L. 442 ; 1 A. 599 ; Sec C N. S. 15. Art. 10. — The form and effect of public and private written instru- ments are governed by the laws and usages of the places where they are passed or executed. C. p. 13 ; 6 N. 3. 6:^0 ; 7 N. 8. 110, 408 ; S N. S. 21 ; 1 L. 24S ; 11 L. Ifl, 470 ; 2 R. 259 ; 17 L. 4 ; 3 M 66; 5S2 ; 8 M. 132; 2 N. S. 93; 4 N. 8. 1 ; 5 N. S. 5S7; 19 L. 216; 8 R. 407. But the effect of acts passed in one country, to have effect in an other country, is regulated by the laws of the country where they are to have effect. 6 L. 398 ; 2 R. 25S ; 2 A. 659 ; 3 A. 212. The exception made in the second paragraph of this article does not hold, when a citizen of another State of the Union, or a citizen or sub- ject of a foreign state or countrf, disposes by will or testament, or by any other act causa mortis made out of this State, of his moveable prop- erty situated in this State, if at the time of making said will or testa- ment, or any other act causa mortis, and at the time of his death, he resides and is domiciliated out of this State. 3 A. 579 ; 5 N. S. 49, 569 ; L. 39S ; 7 L. 138. Art. 11. — Individuals cannot by their conventions, derogate from the force of laws made for the preservation of public order or good morals. But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in tlieir favor, when the renunciation does not affect the rights of others, and it is not contrary to the public good. 3 M. 583 ; 3 L. 512 ; 9 L. 590 ; 4 L. 123 ; 11 R. 302 ; 1 A. 297, 435 ; 3 A. 294, 323 ; see Art. 2170. Art. 12. — Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed. 11 R. 302 ; 1 A. 205 ; 2 A. 492, 503, 667 ; see C L. 231 ; 4 L. 51. CHAPTER IV. OF THE ArPLICATION AND CONSTRUCTION OF LAWS. Art. 13. — Whe« a law is clear and free from all ambiguity, the let- ter of it is not to be disregarded, under the pretext of pursuing its spirit. 10 L. 261; 1 A. 424; 2 A. 695; 10 L. 97; see 13 L. 497; 8 R. 402; 5 N. S. 140. Art. 14. — The words of a law are generally to be understood in their most known and usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words. Art. 1.'5. — Terms of art or technical terms and phrases, are to be interpreted according to their received meaning and acceptation with the learned in the art, trade or profession to which they refer. Art. 16. — Wliere the words of a law arc dubious, their inclining may be sought by examining the context, with which the ambiguous words, plirases and sentences may be compared, in order to ascertain their true meaning. 4 OF THE LAWS. Art. 17. — Laws in pari materia^ or upon the same subject matter, must be construed with a reference to each other ; what is clear in one statute may be called in aid to explain what is doubtful in another. 5 A. in , see 3 Pw. 4S ; 17 L. 407. Art. 18. — The most universal and effectual way of discovering the true meaning of a law, when its expressions are dubious, is by consid- ering the reason and spirit of it, or the cause which induced the Legis- lature to enact it. 2 A. 100 ; 6 L. ISO ; 5 N. S. 140 ; post, art. 1941. Art. 19. When, to prevent fraud, or from any other motives of pub- lic good, the law declares certain acts void, its provisions are not to be dispensed with on the ground that tl>e particular act in question has been proved not to be fraudulent, or not to be contrary to the public good. 2 A. 7S2 ; 10 L. 264 ; \VL. 19 ; 15 L. 394. Art. 20. The distinction between odious laws and laws entitled to favor, with a view of narrowing or extending their construction, cannot be made by those whose duty it is to interpret them. Art. 21. — In civil matters, where there is no express law, the Judge is bound to proceed and decide according to equity. To decide equit- ably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent. 18 L. 895; 1 A.138; 2 A. 87. CHAPTER V. OF THE REPEAL OF LAWS. Art. 22. — Laws may be repealed either entirely or partially, by other laws. Art. 23. — The appeal is either express or implied : It is express, when it is literally declared by a subsequent law ; It is implied, when the new law contains provisions contrary to, or irreconcilable with those of the former law. The repeal of a repealing law does not revive the first law, unless it be so particularly expressed. Const. 1852, Art. 116. — No law shall be revised or amended by reference to its title; but in such case, the act revised, or section amended, shall be re-enacted and published at length. 8A,398: 5N.S.569; 7L.166: scoGL. 130; 9L.5S5; 1 A.54; 2 A. 919; 5A. 121,395; 2L.S«; 3 N. S. 190; 10 L. 92 ; 1 N. S. 73, 194 BOOK I. OF PERSONS. TITLE I. OF TIIE DISTINCTION OF PERSONS. Art. 24. — Laws on account of the difference of sexes have estab- lished between men and women essential differences with respect to their civil, social and political rights. Art. 25. — Men are capable of all kinds of engagements and func- tions, unless disqualified by reasons and causes applying to particular individuals. Women cannot be appointed to any public oiEce, nor per- form any civil functions, escept those which the law specially declares them capable of exercising. Slat. Uh February, 1828, p. 22.— Hereafter it shall be lawful for widows and unmarried women of age to bind themselves sureties or en- dorsers for other persons, in the same manner, and with the same valid- ity, as men who are of full age, any law to the contrary notwithstand- ing. 4 A. 588. Art. 26. — Birth subjects children to the power and authority of their parents. The extent of this subjection on the one hand, and au- thority on the other, will be explained in its proper place. See 10 L. 92. Art. 27. — Children are Legitimate or Bastai-ds : Legitimate chil- dren are those who are born of a marriage lawfully contracted ; and Bastards are such as are born of an illicit union. Art. 28. — Children born dead are considered as if they had never been born or conceived. ■ Art. 29. — Children in their mother's womb are considered, in what- ever relates to tliemselves, as if they were already born ; thus the in- heritances which devolve to them before their birth, and which may belong to thcin, nre kept for them, and curators are assigned to take care of their estate fir tlieir benefit. Art. 30. — Posthumous children arc those who are born after the death of their father. 6 OF THE DISTINCTION OF PERSONS. Art. 31. — Persons of insane mind are those who do not enjoy the exercise and use of reason, after they have arrived at the age at which they ought, according to the course of nature, -to possess it, whether the defect results from nature or accident. This defect disqualifies those who are subject to it, from contracting any species of engage- ment, or from managing their own estates, which are for this reason placed under the direction of a Curator. Art. 32. — Persons who, by reason of infirmities, are incapable of managing their own affairs, have their persons and estates placed under the direction of Curators. Art. 33. — Persons laboring under the disabilities stated in the two preceding articles, are not, on this account, deprived of any right or advantages, which, notwithstanding such infirmity, they can enjoy. They retain their estates, their capacity for inheriting, and such branch- es of the paternal power as are compatible with their situation. Art. 34. — Age forms a distinction between those who have, and those who have not sufficient reason and experience to govern them- selves and to be masters of their own conduct. But as nature does not always impart the same maturity and strength of judgment at the same age, the law determines the period at which persons are sufficiently ad- vanced in life to be capable of contracting marriage, and of forming other engagements. Art. 35. — A slave is one who is in the power of a master to whom he belongs. The master may sell him, dispose of his person, his indus- try and his labor : he can do nothing, possess nothing, nor acquire any thing but what must belong to his master. Art. 36. — Manumitted persons are those who having been once slaves, are legally made free. Art. 37. — Slaves for a time or statu liberie are those who have ac- quired the right of being free at a time to come, or on a condition which is not fulfilled, or in a certain event which has not happened, but who, in the mean time, remain in a state of slavery. 1 A. 32 ; 9 L. 492. Art. 38. — Freemen are those who have preserved their natural lib- erty, that is to say, who have the right of doing whatever is not forbid- den by law. Art. 39. — Emancipation and the other ways which free the son or daughter of a family from the father's authority, regard only the effects which the civil law gives to the paternal power, but changes in no re- spect those that are derived from natural right. Art. 40. — Males who have not attained the age of fourteen years complete, and females who are under twelve, are under the age of pu- berty ; and sons who have attained fourteen years complete, and daugh- ters the age of twelve complete, are distinguished by the name of adults. Art. 41. — Minors are those of both sexes, who have not yet at- tained the age of one and twenty years complete ; and they remain under the direction of tutors or curators till that age. When they have arrived at it, they then are said to be of full age. See 10 L. 92. OF DOMICIL. TITLE 11. OF DOMICIL AND THE MANNER OF CHANGING THE SAME. Art. 42. — The domicil of each citizen is in the parish wherein his principal establishment is selected. The principal establishment is that in which he makes his habitual residence ; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he re- sides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected. n h. 1T5; 12 L. 190; 14 L. 169; 18 L. 557; 11 R. 154; 2 A. 946; See 2 L. 29; 16 L. 813. Aet. 43. — A change of domicil is produced by the act of residino; in another parish, combined with the intention of making one's principal establishment there. C. P. 1S9, 166, 167, 16S, 201 ; 8 N. S. 247 ; S L. 213 ; 12 L. 190, 169 ; 6 N. S. 467 ; See 2 L. 29 ; 9 M. 4S9. Art. 44. — This intention is proved by an express declaration of it before the judges of the parishes, from which and to Avhich he shall hi- tend to remove. This declaration is made in writing, is signed by the party making it, and registered by the judge. 2 R. 449 ; See 6 N. S. 4G7; 4 N. S. 51 ; 6 N. S. 247. Art. 45. — In case this declaration is not made, the proof of this intention shall depend upon circumstances. 6 N. S. 247 ; 8 L. 213 : 13 L. 293 ; 2 R. 449. Art. 46. — A citizen accepting a temporary and precarious office, of one from which he may be removed at pleasure, retains his ancient dom- icil, if he has not evinced a contrary intention. 2 R. 466. Art. 47. — An acceptance of an office conferred for life or during good behavior, implies an immediate transfer of the domicil of the officer to the parish in which he is required to exercise his functions. But public officers, who perform duties throughout tlie State or in a district composed of several parishes, preserve the domicil they had before their appointment, unless they manifest a contrary intention. Art. 48. — A married woman has no other domicil than tliat of her husband : the domicil of a minor not emancipated is tliat of liis father, mother, or tutor; a person of full age, under interdiction, has his dom- icil with his curator. 2 L. 29; 9 L. 567 ; 2 R. 41S, 427 ; 1 A. 815. Art. 49. — Persons who have attained tlie age of majority, and who labor constantly witli, or serve others, have the same domicil as those with whom they labor or serve, provided they reside with them. 8 OF ABSENTEES. TITLE III. OF ABSENTEES. CHAPTEK I. > OF THE CUrLATORSHIP OF ABSENTEES. Art. 50. — When a person possessed of either movable or immov- able property within this State, shall be absent, or shall reside out of the State, without having appointed somebody to take care of his es- tate, or when the person thus appointed dies, or is either unable or un- willing to continue to administer that estate, then and in that case, the judge of the place where that estate is situated, shall appoint a curator to administer the same. 15 L. 81. Art. 51. — In the appointment of this curator the judge shall pre- fer the wife of the absentee to his presumptive heirs, the presumptive heirs to the other relations, the gelations to strangers, and creditors to those who are not otherwise interested, provided however that such persons be possessed of the necessary qualifieations. 4 M. 370 ; 5 M. 89. Art. 52. — The Curator appointed to the absentee shall take an oath well and faithfully to fulfil the duties of his administration and to give an account of it to those who have a right to demand it. It is further his duty to cause a good aud faithful inventory, witk an appraisement of the property intrusted to his keeping, to be made by the judge or by any notary public duly authorized to that eifect by the judge, tind to give a good and sufficient security to the amount of this inventory for his administration. 2 A. 1010. Art. 53. — The curator of the absentee has no other power than that of administering the estate of the absentee, without having a right to alienate or mortgage the same, under any pretence whatsoever. He is m/3reover bound, with respect to this administration, by the same obligations, responsibility and mortgage by which tutors are bound, and he has a right to the same annual compensation for his services. Stat. 'I'^th March, 1840, p. 124.—^ 6. Whenever the Curator or Attorney in fact of an absentee shall apply to the Court of Probates, by a petition made under oath to the best of his knowledge and belief setting forth that the absentee has not been heard from for the space of ten years, and that he has no heirs known to him residing in the State ; or when such facts relative to any absentee shall be known to the Judge of the Court of Probates, or due and satisfactory proofs of the facts aforesaid shall be made to him by any other person than the Curator or Attorney in fact ; it shall be his duty in all such cases to order the sale of the property of such absentee in the same manner, on the same conditions, and the funds to be paid into the State Treas- 9 OF ABSENTEES. 9 ury in the same manner as in cases of vacant successions ; provided, that in every case when a Curator of the absentee shall have been ap- pointed and shall remain in the performance of his duty, it shall not be necessary to appoint a Curator, but the Curator of the absentee shall act as such. 5 L. 26. Art. 54. — bo long as this curatorship continues, all suits in which the absentee is interested, shall be prosecuted by or against the cu- rator. Art. 55. — The curatorship of the absentee ends : 1. When the absentee, or person residing out of the State, appoints an attorney in fact for the administration of his estate, whether it bo the person who was appointed curator or any other person ; 2. When after a certain time, without hearing of the absentee, his heirs cause themselves to be put provisionally in possession of his es- ' tate, in conformity with the law. Art. 56. — The curator of the absentee is bound to give an account of his administration, as soon as it ends, either by the appointment of an attorney in fact by the absentee, or the putting into provisional pos- session of his heirs. Art. 57. — If a suit be instituted against an absentee who has no known agent in the State, or for tlic administration of whose property no curator has been appointed, the judge, before whom the suit is pend- ing, shall appoint a curator ad hoc to defend the absentee in the suit. 4 L. 257 ; 13 L. 2S2 ; 15 L. 871 ; 2 A. 562, 916, 1010 ; 3 N. S. 177 ; 6 N. S. 15 ; Soe 5 L. 43 ; 9 L. 72 ; 10 L. 14 ; 12 L. 280 ; 14 L. 415 ; 15 L. 81. CHAPTER II. OF THE TUTTING INTO rROVISIONAL POSSESSION THE HEIRS OF AN AB- SENTEE. Art. 58. — When a person shall not have appeared at the place of his domicil or habitual residence, and when such person shall not have been heard of for five years, his presumptive heirs may, by producing proof of the fact, cause themselves to be put by the competent judge into provisional possession of the estate which belonged to the absentee at the time of his departure, or at the time he was heard of last, on condition of their giving security for their administration. 11 M. 44.3. Art. 59. — If the absentee has left a power of attorney, his pre- sumptive heirs cannot cause themselves to be put into provisional pos- session, until seven years shall have elapsed since the last intelligence of him has been received. Art. 60. — It is the same if the power of attorney shall have ex- pired, and in this case the property of the absentee shall be adminis- tered as is ordained in the first chapter of the present title. Art. 61. — Tlie putting into provisional possession can be ordered previous to the expiration of the terms before mentioned, when it shall be shown that there are strong presumptions that the person absent las perished. 10 OF ABSENTEES. Art. 62. — The Judge in pronouncing upon this demand shall take into consideration the motives of the absence and the reasons which may have prevented the absentee from being heard of. Art. 63. "When the presumptive heirs shall have been put into pro- visional possession of the estate of the absentee, the will made by him, if there be any such will, may be presented or opened at the request of the person interested, and the testamentary heirs, the legatees, do- nees, as well as those who have any rights to or claims upon his prop- erty, wtiich depend upon the death of the said absentee, may provision- ally prosecute their claims and exercise their rights on the condition of their giving security. Art. 64. — If the testament contain an institution of an universal heir, he shall be preferred to the presumptive heirs, unless they are forced heirs, and shall be put into provisional possession of the estate of the absentee, but on giving security for his administration. Art. 65. — The husband or wife of the absentee, who is not sepa- rated in estate from him or her, and who wishes to continue to enjoy the benefit of the community or partnership of matrimonial gains, which existed between them, may prevent the provisional possession or exercise of all the rights which may depend upon the death of the ab- sentee, and claim and preserve for himself or herself in preference to any other person, the administration of the estate of his or her absent husband or wife. If on the contrary the husband or wife of the absentee chooses rather to have the community dissolved, he or she may exercise and claim all his or her rights, both legal and conventional, on his or her giving security for such things as may be liable to be restored. The wife who elects to have the community continued, has, notwith- standing, the right of renouncing it afterwards. Art. 66. — Provisional possession is but a deposit, which invests those who have obtained it, with the administration of the estate of the absentee, and for which they remain accountable to him, in case he reappears or is heard of again. The security therefore to be given by those who are put into provis- ional 230ssession, ought not to exceed the probable amount of the injury which their mal-administration can cause. Art. 67. — It shall be the duty of such as shall have obtained pro- visional possession, or of the husband or wife who shall have been con- tinued in the administration of the community, to cause an inventory of the movables, slaves and credits of the absentee, to be made by the Judge or by any notary public duly authorized to that effect by the Judge. The Judge shall order, if necessary, that the whole or part of the movables be sold, and in case of sale, both the amount of the sale and the profits which may have accrued, shall be either laid out in the pur- chase of real property, or placed at interest in a safe manner. S«e amendment to Art. 53. Art. 68. — Those who shall have obtained either the provisional possession or legal administi-ation, may petition for their own security for the appointment, by the Judge, of two persons well acquainted with such affairs and sworn by the Judge, for the purpose of examining the 1 1 OF ABSENTEES. \ \ immovables of tlie absentee, and reporting their condition ; and tlie report of such persons shall be afterwards approved by the Judge, and the expenses attending the same shall be paid out of the estate of the absentee. Art. 69. — If the absentee shall reappear after the putting into provisional possession of his heirs, they shall be bound to return him the annual revenues of his property in the following proportions : Of the first five years, two-thirds ; Of the five years ensuing, one-half; Of the next five years, one-third. After thirty years absence, the whole of the revenue shall belong to those who shall have been put into provisional possession. Art. 70. — Those persons who enjoy only in virtue of .the provis- ional possession, can neither alienate nor mortgage the immovables and slaves of the absentee. But if it should be found necessary to sell any of the slaves, the sale of them may be ordered by the Judge, who must recjuire that the proceeds be placed at interest in a safe manner, or invested in immov- ables and slaves. Art. 71. — If the absence has lasted thirty years since the provis- ional possession, or since the time when the husband or wife who held their estate in common shall have taken the administration of the es- tate of the absentee, or if one hundred years have elapsed since the birth of the absentee, then the sureties shall be discharged, and all such as may have rights, may petition for the partition of the estate of the absentee, and cause themselves to be put in absolute possession by the Judge. Art. 72. — The succession of the absentee shall be opened from the day of his or her death duly ascertained, for the benefit of such heirs as were capable of inheriting his estate at the time ; and those who shall have enjoyed the estate of the absentee, shall be bound to restore the same, with the exception of the profits assigned them by the j>ro- visions of the above sixty-ninth article. Art. 73. — If the absentee should reappear, or if his existence should be proved during the provisional possession, then the efi"ect of the judgment which shall have ordered this provisional possession, shall cease, without however affecting the validity of any such conserv- atory measures prescribed in the first chapter of this title as may have been taken for the administration of the estate of the absentee. Art. 74. — If the absentee sliould reappear, or if his existence should be pi'oved, even after the putting into absolute possession, he shall recover his estate, sucli as it may happen to be, the price of such part of it as has been sold, or such property as has been bought with the proceeds of his estate which may have been sold. Art. 75. — The children, or direct descending heirs of the absentee, may likewise, within thirty years to be computed from the day of the absolute possession, petition for the restitution of his estate, according to the preceding article. Art. 76. — After judgment or during provisional possession or legal administration, no person who may have rights to exercise against the 12 OF ABSENTEES. absentee, can prosecute such rights, except against those who have been put into provisional possession of the estate, or who shall have been le- gally appointed administrators of the same. . CHAPTER III. OF THE EFFECTS OF ABSENCE UPON THE EVENTUAL RIGHTS WHICH MAY BELONG TO THE ABSENTEE. Art. 77. — Whoever shall claim a right accruing to a person whose existence is not known, shall be bound to prove that such person exist- ed at the time when the right in question accrued, and until this be proved, his demand shall not be admitted. Art. 78. — In case a succession shall be opened in favor of a person whose existence is not known, such inheritance shall devolve exclusive- ly on those who would have had a joint right with him to the estate, or on those on whom the inheritance should have devolved if such person had not existed. 3L. 3T4; 6 L. 653. Art. 79. — The provisions of the two preceding articles shall not affect the right of claiming the inheritance and any other rights which the absentee or his representatives or assigns may have, which shall be extinguished only by the lapse of time which is established for pre- scription. Art. 80. — As long as the absentee shall not appear, or a suit shall not be brought in his name, those who shall have been put in possession of the inheritance, shall have a right to the proceeds by them received ho7id fide. CHAPTER IV. OF THE EFFECTS OF ABSENCE RESPECTING MARRIAGE. Art. 81. — Ten years of absence, without any news of the absentee, is a sufficient cause for the husband or wife of such absentee to con- tract another marriage, after having been authorized to do so by the judge, on due proof that such absence without any news continued the time required as aforesaid. And if after the said marriage the husband or wife who was absent, happens to return, he or she shall be free of his or her first contract, and at liberty to contract another marriage, and the marriage entered into by the husband or wife during and on account of the absence, shall remain firm and valid. CHAPTER V. OF THE CARE OF MINOR CHILDREN WHERE THE FATHER HAS DISAP- PEARED. Art. 82. — If a father has disappeared, leaving minor children born during his marriage, the mother shall take care of them and shall ex- 13 OF HUSBAND AND WIFE. 13 ercise all the rights of her husband with respect to their education and the administration of their estate. Art. 83. — But if the mother contracts a second marriage, she can- not preserve this superintendence of her children, but with the consent of a meeting of the family, composed of relations or friends of the father. Art. 84. — If this superintendence is refused to her, a provisional tutor shall be appointed for the children, in the manner prescribed in the title of minors^ and of tutorship and curatorship. Art. 85.— There shall be appointed for the children a provisional tutor ni the manner herein directed, if at the time of the disappear- ance of the father, the mother should be dead, or if she should die be- fore their attaining the age of majority. Art. 86.— The same thing shdl take place if the husband or wife who have disappeared, have left minor children born of a former mar riao-e. TITLE IV. OF HUSBAND AND WIFE. OHAPTEE I. OP MARRIAGE _ Art. 87. — The law considers marriage in no other view than as a civil contract. Art. 88. — The law prescribes : 1. The manner of contracting and celebrating marriages ; 2. The legal eflPects and consequences of marriage ; 3. The manner in which marriages may be dissolved. Art. 89.— Such marriages only are recognized by law as arc contracted and solemnized according to the rules which it pre- scribes. ^ Art. 90.— Marriage is a contract intended in its origin to endure until the death of one of the contracting parties; yet this contract may be dissolved before the decease of either of the married persons, for causes determined by law. CHAPTER II. HOW MARRIAGES MAY BE CONTRACTED OR MADE. Art. 91.— As the law considers marriage in no other view than that of a civil contract. It sanctions all those marriages, where the parties at the time of making them were : i- ^i-ic-, 14 OF HUSBAND AND WIFE. 1. Willing to contract, 2. Able to contract, 3. Did contract pursuant to the forms and solemnities prescribed by law. Art. 92. — No marriage is valid to which the parties have not freely consented. Consent is not free : 1. When given to a ravisher. unless it has been given by the party ravished, after she has been restored to the enjoyment of liberty ; 2. When it is extorted by violence ; 3. When there is a mistake respecting the person, whom one of the parties intended to marry. Art. 93. — Ministers of the gospel and magistrates, intrusted with the power of celebrating marriages, are prohibited to marry any male under the age of fourteen years, and any female under the age of twelve ; and if any of them are convicted of having married such persons, he shall be removed from his office, if a magistrate, or deprived forever of the right of celebrating marriages, if a minister of the gospel. Art. 94. — Persons legally married are, until a dissolution of mar- riage, incapable of contracting another, under the penalties established by the laws of this State. Art. 95. — Free persons and slaves are incapable of contracting marriage together ; the celebration of such marriages is forbidden, and the marriage is void ; there is the same incapacity and the same nullity with respect to marriages contracted by free white persons with free people of color. Art. 96. — Marriage between persons related to each other in the direct ascending or descending line is prohibited. This prohibition is not confined to legitimate children, it. extends also to children born out of marriage. Art. 97. — Among collateral relations marriage is prohibited be- tween brother and sister, whether of the whole or of the half blood, whether legitimate or illegitimate, and also between the uncle and the niece, the aunt and the nephew. Art. 98. — All other impediments on account of relationship or af- finity are abolished. Art. 99. — The minor of either sex, who has attained the compe- tent age to marry, must have received the consent of his father and mother, or of the survivor of them; and if they are both dead, the consent of his curator. He must furnish proof of this consent to the judge to whom he ap- plies for permission to marry. Art. 100. — Those who have attained the age of majority, on their demanding permission to marry, must furnish the judge proof of their having attained that age. 15 OF HUSBAND AND WIFE. . 15 CHAPTER III. OF THE CELEBRATION OF MARRIAGES. Art. 101. — Any priest, or minister of a religious sect, domiciliated in any one of the parishes of this State, shall have the right of cele- brating mai'riages therein. Stat. 3(rZ February., 1826, p. 26, ^ 1. — If there be no priest or min- ister of a religious sect domiciliated in any one of the parishes of this State, the Judge of that parish, if required by either of the parties, is authorized to send to any priest or minister residing in a neighboring parish, a commission to come and cekbrate marriages in the parish in which said Judge has his jurisdiction. ^ 2. All acts or parts of acts, contrary to the provisions of this act, are hereby repealed. Stat. 5th March, 1842, p. 204, !^ 1. — From and after the passage of this act the articles of the Civil Code, 101, 102, shall be so con- strued that any priest or minister of a religious sect, domiciliated within the State of Louisiana, shall have the right of celebrating marriages in any one of the parishes of this State, and it shall no longer be required that the said priest or minister of a religious sect shall reside in the parish where ho celebrates or performs the marriage ceremony. Stat. 1th March, 1850, p. 42, ^ 1. — From and after the passage of this act, the regularly commissioned notaries of this State, in and for the parish of West Feliciana, during their term of oifice, shall be em- powered to perform within said parish the ceremony of marriage, under the formalities required by law, and that said ceremony when performed by them, shall have the same legal cflfect as when performed by any other person or persons authorized by existing laws to perform the same. Art. 102. — The judge of the parish may authorize one or more justices of the peace, within his jurisdiction, to celebrate marriages. See amendments to Art, 101. Art. 103. — No marriage can be celebrated without the special li- cense of the parish judge, directed to the priest, minister or justice of the peace, who is to celebrate it. Art. 104. — Before granting license to marry, the parish judge shall give notice thereof by advertisement placed at the door of the church or of the court house ; and fifteen days after, if there be no op- position, he shall grant the license. He can dispense with this publication, in cases which he shall deem urgent and important. Art. 105. — Before granting the license, the judge shall require of the intended husband a bond, with a surety in utnre made use of in the provision of the law, or in the conventions or acts of persons, comprehends only such fur- niture as is intended for the use and ornament of apartments, but not libraries which happen to be there nor plate. Art. 470. — The expression of movable goods, that of movables or movable ejects, employed as above stated, comprehends generally all that is declared to be movable, according to the rules laid down in tliis chapter. Art. 471. — The sale or gift of a house ready furnished, includes only such furniture as is in the house. Art. 472. — The sale or gift of a house ivith all that is in it, does not include the money, nor the debts, or other rights, the titles of which may be in the house ; all other movable effects are included. 4 N. S. Cfrl. CHAPTER IV. of estates considered in their relation to those who possess thAi. Art. 473. — Things, in their relation to those who possess or enjoy them, arc divided into two classes ; those which are not susceptible of ownership, and those which arc. Art. 474. — Among those wliich arc not susceptible of ownership, there are some wliich can never become the object of it, as things in com- mon, of wliich all men have the enjoyment and use. There are things, on the contrary, which, though naturally suscep- tible of ownership, may lose this quality in consequence of their being applied to some public purpose, incompatible with private ownership, but which resume this quality as soon as they cease to be applied to that purpose, such as the high roads, streets and public places. Art. 475. — Things susceptible of ownership, arc all those which are held by individuals, and wliich may be alienated by sale, exchange, do- nation, prescription or otherwise. 74 OF OWNERSHIP. Art. 476. — Individuals have the free disposal of the property which belongs to them, under the restrictions established by law. But the property of the corporations of cities, or other corporations, are administered according to laws and regulations which are peculiar to them, and can only be alienated in the manner and under the restric- tions prescribed in their several acts of incorporation. Akt. 477. — The successions of persons who die without heirs, or which are not claimed by those having a right to them, belong to the State. See 5 E. 9; 12 E. 584. Art. 478. — The national domain, properly speaking, comprehends all the landed estate and all the rights which belong to the nation, whether the latter be in the actual enjoyment of the same, or have only a right to re-enter on them. Art. 479. — There may be different kinds of rights to estates : 1 . A full and entire property ; 2. A right to the mere use and enjoyment ; 3. A right to certain services due upon the estate. TITLE II. OF OWNERSHIP. CHAPTER I. GENERAL PRINCIPLES. Art. 480. — Ownership is the right by which a thing belongs to some one in particular, to the exclusion of all other persons. 6E. 488; See 12 E. 474. Art. 48 1 . — The ownership of a thing is vested in him who has the immediate dominion of it, and not in him who has a mere beneficiary right in it. Art. 482. — Ownershij) is divided into perfect and imperfect. Ownership is perfect, when it is perpetual, and when the thing, which is the subject of it, is unencumbered with any charges towards any other person than the owner. On the contrary, ownership is imperfect, when it is to terminate at a certain time or on a condition, or if the thing, which is the subject of it, being an immovable, is charged with any real right towards a third person, as an usufruct, use or service. When an immovable is subject to an usufruct, the owner of it is said to possess the mere ownershij^. 2 A. 80. Art. 483. — Absolute ownership gives the right to enjoy and to dis- pose of one's property in the most unlimited manner, provided it is not used in a waj prohibited by laws or ordinances. 75 OF OWNERSHIP. 75 Persons who reside out of the State, cannot dispose of the property they possess here, in a manner diflPerent from that prescribed by its laws Sc« 2 X 659 ; 12 E. 593. Art. 484. — Imperfect ownership only gives the right of enjoying and disposing of property, when it can be done without injuring the rights of others, that is, of those who may have real or other rights to exercise upon the same property. 2 A. 80. Art. 485. — The right of ownership necessarily supposes a person in whom this right exists, whether the owner be a real person, such as an in- dividual, or a civil or intellectual person, such as a corporation. Art. 48G. — It is of the essence of the right of ownership that it can- not exist in two persons for the whole of the same thing but they may be owners of the same thing in common, and each for the part which he may have therein. Art. 487. — He who has once acquired the ownership of a thing by one title, cannot afterwards acquire it by another title, unless it be to supply a deficiency in the first title. On the other hand, nothing prevents a thing due to a person under one title, from being also due to him mider another, as for example, when a thing has been sold, and is afterwards bequeathed to the same person by the owner. Art. 488. — The ownership and the possession of a thing, are entirely distinct. The right of ownership subsists independently of the exercise of it. The owner is not less the owner because he performs no act of owner- ship, or because he is disabled from performing any such acts, or even be cause another performs such acts, without the knowledge or against the will of the owner. But the owner exposes himself to the loss of his right of ownership in a thing, if he permits it to remain in the possession of a third person, for a time sufficient to enable the latter to acquire it by prescription. Art. 489. — No one can be divested of his property, unles.s for some purpose of public utility, and on consideration of an equitable and pre- ' vious indemnity, and in a manner previously prescribed by law. By an equitable indemnity in this case is understood, not only a payment for the value of the thing of which the owner is deprived, but a remuneration for the damages which may be caused thereby. See 9 L. 205. No. 174. — A71 Act I0 amcjid an Act to provide for the expropria- tion of Lcauh for Railroada, and other works of pi^djRc utility. — ^ 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, That the first section of an act to provide for the expropriation of land for railroads, and other works of public utility, approved March the eighth, one thousand eight hundred and fifty-two, be, and the same is hereby amended as to read thus : — That whenever any corporation constituted under the laws of this State, for 75 OF OWNERSHIP. the construction of a railroad, or plank-road, or a turnpike-road, or a canal for navigation, or for the purpose of transmitting intelligence by magnetic telegraph, cannot agree with the owner or owners of any land which may be wanted for the construction of such road, canal, or magnetic telegraph, or the works connected therewith, it shall be law- ful for such corporation to apply by petition to the judge of the district court in which such land may be situated ; or if the land extends into two districts, to the judge of the district in whieli the owner thereof resides, and if the owner does not reside in either district, then to the judge of either district ; describing the lands necessary for their pur- poses, with a plan of the same, and a statement of the improvements thereon, if any, and the name of the owners thereof, if known and pre- sent in the State, with a prayer that the land be adjudged to such cor- poration, upon the payment to the owner of all such damage as he may sustain in consequence of the expropriation of his land for such public work. That all claims for land, or damages to the owner, caused by its appropriation or use for the construction of any of said public works, shall be barred by two years prescription, which shall commence to run from the date at which the laud was actually occupied and used for the construction of said works. § 2. Be it further enacted, &c., In all cases where any corporation shall commit such trespass, or do any thing for which an action lies, shall be liable to be sued in the parish where such damage is done, or trespass committed. Approved, April 25th, 1853. Art. 490. — The ownership of a thing, whether it be moveable or immovable, carries with it the right to all that the thing produces, and to all that becomes united to it, either naturally or artificially. This is called the right of accession. See 15 L. 122. CHAPTER II. OF THE RIGHT OF ACCESSION TO WHAT IS FROnUCED BY THE THING. Art. 491. — Fruits of the earth, whether spontaneous or cultivated; civil fruits, that is, the revenues yielded by property from the operation of the law or by agreement ; children of shaves, and the young of ani- mals, belong to the proprietor by right of accession. 3 A. 600; 6 A. 634. Art. 492.— The children of slaves and the young of animals belong to the proprietor of the mother of them, b}'' right of accession. Art. 493. — Tlie fruits produced by the thing belong to its ownei although they may have been produced by the work and labor of a third person, or from seeds sown by him, on the owner's reimbursing such person his expenses. 2 A. 7C2. Ar.t. 494. — The produce of the thing docs not belong to the simple 77 OF OWNERSHIP. 77 possessor, and must be returned with the thing to the owner who claims the same, unless the possessor held it bona fide. , Art. 495. — He is a bona fide possessor who jiossesses as owner, by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorant of. He ceases to be a bona fide possessor, from the moment these defects are made known to him, or are declared to him by a suit instituted for the recovery of the thing by the proprietor. 2N. S. 5M; TN. S. 050; 6L. 265; 10 K. ITS; CA.356; See 11 M. 695; IN. 8. 405; 2 N. S. 555. CHAPTEE III. OF THE KIGHT OF ACCESSION TO WHAT UNITES OR INCORPORATES ITSELF TO THE THING. Art. 496. — All that which becomes united to, or incorporated with property, belongs to the owner of such property, according to the rules hereafter established. See 18 L. 122. Section I. — Of the Right of Accession., i?i rclatioji to immovables. Art. 497. — The property of the soil carries with it the property of all which is directly above and under it. The owner may make upon it all the plantations, and erect all the buildings which he thinks proper, under the exceptions established in the title oi servitudes or services. He may construct below the soil all manner of works, digiring as deep as he deems convenient, and draw from them all the benefit.? which may accrue, under such modifications as may result from the laws and regulations concerning mines, and the laws and regulations of the police. 11 R. 925. Art. 498. — All the constructions, plantations and works made on or within the soil, are supposed to be done by the owner, and at his ex- pense, and to belong to him, unless the contrary be proved, without prejudice to the rights of third persons, who have acquired or may acquire by prescription the property of a subterraneous piece of ground under the building of another, or of any part of the building. 2R. 183; 12 K. 225. Art. 499. — If the owner of the soil has made constructions, planta- tions and works thereon, with materials which did not belong to him, he has a right to keep the same, whether he has made use of them in good or bad faith, on condition of reimbursing their value to the owner of them, and paying damages, if he has thereby caused him any injury or damage. Art. 500. — When plantations, constructions and works have been made by a third person, and with such person's own materials, the owner of the soil has a riglit to keep them, or to compel this third person to take away or demolisli the same. If the owner requires the demolition of such works, they shall be demolished at the expense of the person who erected them, without any 78 OF OWNERSHIP. compensation ; such person may even be sentenced to pa}- damages, if thg case require it, for the prejudice which the owner of the soil may have sustained. If the owner keeps tlie works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of work- manship, without any regard to the greater or less value which the soil may have acquired thereb}'. Nevertheless, if the plantations, edifices or works have been done by a third person evicted, but not sentenced to make restitution of the fruits, because such person possessed bona fide^ the owner shall not have a right to demand the demolition of the works, plantations or edifices, but he shall have his choice either to reimburse the yalue of the materials and the price of workmanship, or to reimburse a sum equal to the en- hanced value of the soil. 18 L. 70; 2 R. 133, 1ST; 11 R. 225; 12 R. 44; 2 A. 403; See 10 L. 414; 2 A. 370. Art. 501. — The accretions, which are formed successively and im- perceptibly to any soil situated on a shore of a river or creek, are called alluvions. The alluvion belongs to the owner of the soil situated on the edge of the water, whether it be a river or a creek, and whether the same be navigable or not, who is bound to leave public that portion of the bank, which is required by law for the public use. 18 L. 22 ; See M. 210 ; 9 M. 050. Art. 502. — The same rule applies to derelictions formed by running water retiring imperceptibly from one of its shores ajjd encroaching on the other ; the owner of the laud, adjoining the shore which is left dry, has a right to the dereliction, nor can the owner of the opposite shore, claim the land which he has lost. This right does not take place in case of derelictions of the sea. Art. 503. — If the river or creek, whether navigable or not, carries away by a sudden irruption a considerable tract of land from an adjoin- ing field, which tract of land is susceptible of being identified, by carry- ing the same on a field lower down, or on the opposite shore, the owner of the tract of land thus carried away, may claim his property, provided he does it within a year, or even after the year has elapsed, if the per- son, to whose land the soil thus carried away has boon united, has not yet taken possession of the same. Art. 504. — Islands and sand bars, which are formed in the beds of navigable rivers or streams, and which are not attached to the bank, be- long to the State, if there be no adverse title or prescription. Art. 505. — Islands and sand bai-s which arc formed in str9ams not navigable, belong to the riparian proprietors, and are divided among them according to the rules prescribed in the following articles. Art. 506. — If the island be formed in the middle of the stream, it belongs to the riparian proprietors, whose lands are situated on the sides opposite the island. If they wish to divide it, it must be divided by a line supposed to be drawn along the middle of the river. The riparian proprietors then severally take the portion of the island which is oppo- site their land, in proportion to the front they respectively have on the stream opposite the island. Art. 507. — If on the contrary, the island lie on one of the sides of 79 OF OWNERSHIP. 79 the line tlius supposed to be drawn, it belongs to the riparian proprie- tors of the side on which the island is, and must be divided among them in proportion to the front they respectively have on the stream opposite the island. AiiT. 508. — If an alluvion be .formed in front of the property of several riparian proprietors, the division is to be made according to the extent of the front line of each at the time of tlie formation of the al- luvion. Anx. 509. — If a river or creek, whether navigable or not, by open- ing itself a new branch, cuts oil" and surrounds the field of any individual owner of the shore, and makes it an island, the owner shall keep the property of his field. Art. 510. — If a river or creek, whether navigable or not, opens it- self a new bed by leaving its former channel, the owners of the soil newly occupied shall take, by way of indemnification, the former bed of the river, every one in proportion to the quantity of land he has lost. They shall again take tlieir former property, if the river or creek re- turns to its former channel. Art. 511. — Pigeons, bees or fish, which go from one pigeon house, hive or fish-pond, into another pigeon house, hive or fish pond, belong to the owner of those things, provided such pigeons, bees or fish have not been attracted thither by fraud or artifice. Section II. — Of the Right of Accession in rclatimx to Movables. Art. 512. — The right of accession, when it operates upon two mov- able things, belonging to two different owners, rests altogether upon principles of natural equity. The following rules shall direct the determination of the judge in unforeseen cases, according to tlie peculiar circumstances of such, cases. Art. 513. — When two things belonging to diff"erent owners, and which have been united in such a manner as to form a whole, are never- theless of a nature to be separated, so that one may exist without the other, the whole belongs to the owner of the thing which forms the prin- cipal part, under the obligation of reimbursing to the other the value of the thing which has been united to his own. Art. 514. — The part which is considered as principal, is that to which tlie other has been united only for the use, ornament or comple- tion of the other. Thus the diamon^d is the principal part with reference to the gold in which it is set. The coat itself with reference to the lace, lining and embroidery. Art. 515. — Nevertheless equity requires that there should be some exception to the preceding rule, when the thing united is much more precious than tlie principal thing, and when it has been made use of, un- known to the owner. In such case, the owner may demand that the thing be separated and returned to him ; even though some injury should result to the thing to which it has been united. Art. 5 1 6. — If of the two things united to form one whole, the one cannot be considered as the accession of the other, the most considerable 80 OF OWNERSHIP. in value or in bulk, if tlic value be nearly cfj[ual, shall be considered as the principal. Art. y 1 7. — If an artificer, or any person whatever, has employed materials which did not belong to him, in the making another article, whether the materials may or may not be brought back to their former shape, the person who was the owner of the materials, has a right to claim the thing which was made out of them, on reimbursing the price of the workmanship. 4 A. 1!>3. Art. 518. — The rule established in the preceding article, does not apply when the workmanship is so important that it greatly surpasses the value of the materials which have been employed. Industry then is considered as the principal part, and gives the workman a right to keep the thing which he has made, on condition of reimbursing the price of the materials which were employed. 4 A. 193. Art. 519. — When a person has employed materials, part of which did, and part of which did not belong to him, in making a thing of a new kind, without either part of the materials being entirely destroyed, but in such a manner that they cannot be separated without inconve- nience, the thing belongs in common to both proprietors, the share of the one being in proportion to the value of the materials which belonged to him, and of the other in proportion both to the value of the materials which belonged to him, and of the price of the workmanship. Art. 520. — When a thing has been formed by a mixture of several materials belonging to different proprietors, neither of which can be considered as the princijjal substance, if the materials can be separated, the proprietor, without whose consent the mixture was made, may de- mand the separation. If the materials cannot be separated without inconvenience, their owners acquire in common the property of the thing in proj^ortion to the quantity, quality and value of the materials belonging to each of them. Art. 521. — If the materials belonging to one of the proprietors be far superior to the others, both in quantity and value, in that case the proprietor of the most valuable materials may claim the thing resulting from the mixture, on reimbursing to the other the value of his materials. Art. 522. — When the thing remains in common to the proprietors of the materials with which it has been formed, it must be sold at auction for the common benefit. Art. 523. — In all cases where the proprietor, whose materials have been emj^loycd unknown to him in making a thing of another kind, has a right to claim the property of that thing, he is at liberty to demand either that the materials be returned to him in the same species, quan- tity, weight, measure and quality, or that their value be paid. Art. 524. — Damages may also be recovered against those who have employed materials belonging to others, unknown to them, according to circumstances; and they are still liable to be prosecuted criminally, should the case require it. 4 A. 193. 81 OF USUFRUCT. 81 TITLE III. OF USUFRUCT, USE AND HABITATION. CHAPTER I. OF USUFRUCT. Section I. — General rrinciplcs. Art. 525. — Usufruct is the right of enjoying a thing, the property of which is vested in anotlier, and to draw from the same all the profit, utility and advantages which it may produce, provided it be without altering the substance of the thing. The obligation of not altering the substance of the thing takes place only in the case of a complete usufruct. Art. 526. — There are two kinds of usufruct: Perfect usufruct, which is of things which the usufructuary can enjoy without changing their substance, though their substance may be dimin- ished or deteriorated naturally by time or by the use to which they are applied ; as a house, a piece of land, slaves, furniture and other movable eflfeets ; And imperfect or (7?<«si-usufruct, which is of things which would be useless to the usufructuary, if he did not consume or expend them, or change the substance of them, as money, grain, liquors. Art. 527. — Perfect usufruct does not transfer to the usufructuary the property of the things subject to the usufruct ; the usufructuary is bouiul to use them as a prudent administrator would do, to preserve them as much as possible, in order to restore them to the owner as soon as the usufruct terminates. Art. 528. — Imperfect usufruct, on the contrary, transfers to the usu- fructuary the property of the things subject to the usufruct, so that he may consume, sell or dispose of them, as he thinks proper, subject to cer- tain charges hereinafter prescribed. Art. 529. — Usufruct is an incorporeal thing, because it consists in a right. Bee 10 L. 92, 246. Art. 530. — Usufruct is divisible ; for if this right is vested in several persons at a time, there is but one usufruct, which is divided among them, each having his portion. The reason is because the object of his right is the receiving the fruits of the thing, which are corporeal and divisible. • . Art. 531. — Usufruct may, from its origin, be conferred on several persons in divided or undivided portions. See 10 L. 240. Art. 532. — Usufruct may be established by all sorts of titles, by a deed of sale, by a marriage contract, by donation, compromise, exchange, last will, and even by operation of law. 6 82 OF USUFRUCT. Tims the usufruct to which a father is entitled on the estate of his ■'hilclreii during the marriage, is a legal usufruct. Art. 533. — Usufruct may be established on every description oi estates movable or immovable, corporeal or incorporeal. Art. 534. — Usufruct may be established simply, or to take place at a certain day, or under condition, in a word, under all such modifica- tions as the person who gives such a right may be pleased to annex to it. Art. 535. — It may be granted to all such as may be possessed of an estate, even to communities or corporations. Section TI. — Of the Rights oftJie Usufrtcctuary Art. 536. — All kinds of fruits, natural, cultivated or civil, produced, during the existence of the usufruct, by the things subject lo it, with the exception of the children of slaves, belong to the usufructuary. 19 L. 509 ; 8 A. 600 ; C A. (>U ; Sec 10 L. 92. Art. 537. — Natural fruits are such as are the spontaneous produce of the earth; the produce and increa.se of cattle, and the children of slaves are likewise natural fruits. The fruits, which result from industry bestowed on a piece of ground, arc those wliich are obtained by cultivation. Civil fruits are rents of real property, the interest of money and annuities. All other kinds of revenue or income derived from property by the operation of the law or private agreement, are civil fruits. CA. 634. Art. 538. — The natural fruits, or such as are the produce of industry, hanging by branches or by roots, at the time wlien the usufruct is open, belong to the usufructuary. Fruits in the same state, at the moment wlien the usufruct is at an end, belong to the owner, without being obliged to compensate the other, for either work or seeds. 8 A. 4S9. Art. 530. — Tlie cliildren of slaves subject to usufruct, who are boru during its duration, belong to the owner. The usufructuary has only the enjoj'ment of their labor and services. 8 A. 600; 6 A. 634. Art. 540. — Rents and income of property, interest of money and annuities, and other civil fruits, are supposed to be obtained day by day, and they belong to the usufructuary, in proportion to the duration of his usufruct, and are due to him, though they may not be collected at the expiration of his usufruct. Art. 541. — The usufruct of a house carries with it the enjoyment of the house, of the profit which it may bring, and indeed of such furniture as is permanently fixed therein, even should the title by which the usu- fruct is establislicd, make no mention of the same. Art. 542. — If the usufruct includes things, which cannot be used without being expended or consumed, or without their substance being 83 OF USUFRUCT. 83 changed, tlie usufructuary has a right to dispose of them at his pleasure, but under the obligatiou of returning the same quantity, quality and value to the owner, or their estimated price, at the expiration of the usufruct. 3 R. 329 ; 3 A. 494. Art. 543. — If the usufruct comprehends things which, though not consumed at once, are gradually impaired by wear and decay, such as furniture, the usufructuary has, in like manner, a riglit to make use of them for tlic purposes for wliich they are intended, and at the expiration of the usufruct he is obliged only to restore them in the state in which they may be, provided they have not been impaired through his fault or neglect. And even should any of these things be entirely worn out by use at the expiration of the usufruct, the usufructuary is not bound to make good the same. 8 A. 494. Art. 544. — The usufructuary has a right to draw all the profits, which are usually produced by the thing subject to the usufruct. Accordingly he may cut trees on land of which he has tlic usufruct, take from it earth, stones, sand and other materials, but for his use only, and for the amelioration and cultivation of the land, provided he act in that respect as a prudent administrator, and without abusing this right. 3 A. 494. Art. 545. — The usufructuary has a right to the enjoyment and pro- ceeds of mines and quarries in the land subject to the usufruct, if they were actually worked before the commencement of the usufruct ; but he has no right to mines and quarries not opened. 3 A. 494. Art. 546. — The usufructuary enjoys the increase brought by allu- vion to the land of which he has the usufruct, but has no right to islands formed in a stream not navigable opposite the land ; they belong to the riparian proprietors, as is prescribed in the title of tilings. In like manner he has no right, not even the right of enjoyment, to the treasure which may be discovered in the land of which he has tho usufruct, unless he himself has discovered it, in which case he shall only enjoy the right granted by law to such persons as find a treasure in a piece of land, the property of another person. 3 A. 494. Art. 547 — The usufructuary enjoys the right of servitudes, ways or others due to the inheritance of which he has the usufruct ; and if this inheritance is inclosed within the other lands of liim who has esta- blished such usufruct, a way must be gratuitously furnished to the usu- fructary by the proprietor of the land or by his licirs. 8 A. 494 Art. 548. — The usufructuary may enjoy by himself or lease to an- other, or even sell or give away his right; but all the contracts or agreements which he makes in this respect, whatever duration he may have inteuded to give them, cease of right at the expiration of the usufruct. 8 A. 494 Art. 540. — The usufructuary can maintain all actions against the 84 OF USUFRUCT. owner and third persons, wliicli may be necessary to insure bim tbe pos- session, enjoyment and preservation of bis rigbt. 3 A. 494 Section III. — Of the Obligations of tlie Usufructuary. Art. 550.-7-Tbe usufructuary takes tbings in tbe state in wbicb tbey are ; but be cannot obtain possession of tbe tbings subject to tbe usu- fruct, vritbout baving caused to be made in presence of tbe owner, or after tbe owner bas been duly summoned, if be be witbin the State, an inventor}', with tbe estimated value of tbe estate, botb movable and immovable, subject to tbe u.sufruct, by a notary public duly authorized by tbe judge to tbat eftcct, and in tbe presence of two witnesses. If the owner be absent from tbe State, and is not represented by any person therein, tbe judge shall appoint a counsel for him to assist at the inventory. Art. 551. — Tbe usufructuary must give security tbat he will use, as a prudent administrator would do, the movables and immovables sub- ject to the usufruct, and that he will faithfully fulfil all tbe obligations imposed on him by law, and by the title under which bis usufruct is established. Art. 552. — Tbe amount of this security shall be the estimated value of the movables and slaves subject to the usufruct, according to the inventory, and such further sum as shall be fixed by tbe judge ac- cording to the nature of tbe real property subject to the usufruct, to answer for the damages which the usufructuary, or those for whom be is responsible, may commit thereon. This security may be dispensed with, in favor of the usufructuary, by the act by which the usufruct is established. 12 E. 172 ; 2 A. 30. Art. 553. — Neither the father nor mother having tbe legal usufruct -of tbe estate of their children, nor tbe seller, nor the donor, under the reservation of the usufruct, is required to give this security. 12 K. 172. Art. 554. — If tbe usufructuary sell, give away, or lease bis right, he, as well as bis security, is responsible for the abuse which the person to whom he has assigned bis rights, makes of tbe tbings subject to the usufruct, and the damage he may commit on them. Art. 555. — The usufructuary may, for the security required of him by law, give a special mortgage on real property of sufficient value and unencumbered, lying within the State. 12 R. 172. Art. 556. — If tbe usufructuary does not give security or a special mortgage, as is prescribed in the preceding article, the immovables and the slaves subject to the usufruct shall be hired out or leased at public auction. Sums of money, tbe usufruct of which has been given, shall be put out at interest on good security, with the consent of the owner, and if he refuse, by the authority of the judge. Movables subject to the same usufruct, shall be sold at public auction, and the proceeds of the sale shall be put out at interest in the manner above prescribed. 85 OF USUFRUCT 85 The interest of such sums, the amount of the real rent of the estate and of the hire of slaves, and the produce of the sequestered estate, shall, in such case, belong to the usufructuary 2 A. 71 ; 3 A. 494. Art. 557. — In case the usufructuary does not give security, the owner has a right to insist that such fui-niture as grows worse by use, be sold ; that the proceeds may be placed at interest, as well as that of merchandise ; and in that case the usufructuary enjoys the interest dur- ing the usufruct. Nevertlieless the usufructuary may claim, and the judge may order, according to circumstances, that a part of the fui'ui- ture necessary for his use be left to him, under the simple obligation of returning the same at the expiration of the usufruct. Art. 558. — Tlie usufructuary is bound to suffer the services, which existed on the land of whicli he has the usufruct, at the time his right commenced. Art. 559. — A delay to give security does not deprive the usufruc tuary of the profits to which he may have a right ; they are due to him from the moment that the usufruct accrued. Art. 5G0. — It is the duty of the usufructuary to keep the things of which he has the usufruct, and to take the same care of them as a pru dent owner does of what belongs to him. lie is accordingly answerable for such losses as proceed from his fraud, default, or neglect. Art. 561. — The usufructuary has a right to make useful and neces- sary improvements and repairs on the estate subject to the usufruct, and even to make such as are not necessary, but only to suit his own con- venience, provided he do not injure the estate, or change its condition. But as to buildings existing on the land at the commencement of the usufruct, he must preserve them such as they have been transmitted to him, nor can he alter their form, distribution, or destination, even to im- prove it, without the consent of the owner. He has, however, the right to make openings for windows and doors in the house in which he lives, and of which he has the usufruct. Art. 562. — The usufructuary who has an usufruct in slaves, cannot employ them in other labors than those to which they are accustomed. Art. 563. — The usufructuary cannot finish buildings commciiced l)y the owner, nor erect new buildings upon the land of which he has the usufruct, unless these buildings arc necessary for working the land or for getting in the crops ; he, however, may rebuild edifices and other works which have been destroyed or thrown down by time or accident. The usufructuary cannot demolish or destroy wliat he lias once built or constructed, nor take away the materials; lie must abandon the whole to the owner at the end of his usufruct, witliout being able to claim any indemnity therefor. It is understood that all these restrictions on the rights of the usu- fructuary, and others mentioned in this title of the code, only take place when there is no provision to the contrary in the act establishing the usufruct. Art. 564. — The usufructuary is liable to all the necessary expenses for the preservation and working of the estates subject to the usufiiu t ; ind if slaves form a part of them, he must provide for their supjiort 86 OF USUFRUCT. and clothing, for their medical attendance in sickness, and the just and necessary expenses of their children. 6 A. 634. Art. 5G5. — The usufructuary is bound to make such repairs only as are indispensably necessary for keeping the estate subject to the usu- fruct in good order. Repairs extraordinary are to be made by the owner himself, unless such repairs have become necessary in consequence of the usufructuary's neglect to make tic repairs for keeping the property in good order, since the usufruct has been acquired by him, in which case the usufruc- tuary is bound to make such extraordinary repairs. Art. 5GG. — Extraordinary repairs are those of the principal walls and vaults, and the replacing of beams and roofs in to(o, and the recon- struction of a levee entirely destroyed or carried away. All others are ordinary repairs. Art. 5G7. — The usufructuary can be compelled to make, during the time of his usufruct, the repairs which he is bound to make, the same to be determined b}' experts, and under the penalty of being responsible to the owner for all damages caused by his default. Art. 5G8. — If between the time the usufruct commences, and the time the usufructuary is put in possession, the owner makes any neces- sary repairs, which the usufructuary would have been bound to make, the former has the right to claim of the usufructuary the price thereof, and may retain the possession of the things subject to the usufruct, un- til the price is reimbursed. Art. 5G9. — The usufructuary can release himself from the repairs which he is bound to make, and even from the other charges of the usufruct, by abandoning it, even when the owner has instituted a suit against him to comj)el him to make them or bear the expenses of them, and though the usufructuary be condemned in sucli suit. But the abandonment will not have the efi'ect of releasing the usu- fructuary from the charges of tlie enjoyment which he has already had of the usufruct, nor from the accountability for the damages whicli he, or persons for whom he is responsible, may have caused to it. Airr. 570. — The usufructuary has no action against the owner to compel him to make the extraordinary repairs, which the latter is bound to make. Tlie usufructuary, on the refusal of the owner to make tliem, may advance the money necessary to complete them, and shall be reim bu! sed by the owner or liis heirs, at the expiration of the usufruct, thei^ not being included in tlie improvements, which he is obliged to abandon to the owner. Art. 571. — Neither the owner nor the usufructuary is bound to build again what has fallen to ruin, owing to its antiipiity, or has been destroyed by chance, when the ruin is total and entire ; if it be only partial, it foims the subject of ordinary repairs. Nevertheless, if the owner wishes to rebuild what has been destroyed, or to make the extraordinary repairs for which he is bound, the usufruc tuary is bound to permit him, but in the manner the least inconvenient and onerous to him.self, and he may prescribe to the owner a reasonable delay for the jterformance of the work. Art. 572. — The usufructuary is liable, during his enjoyment, to all 87 OF USUFRUCT. 87 the annual charges, to which the things subject to the usufruct may be liable. He is obliged to pay all taxes and contributions imposed on the property' subject to the usufruct, as avcU as all ground rents which may have been charged upon the property, previous to the commencement of the usufruct. The usufructuary is also bound, during his enjoyment to cause to be made and repaired the roads, bridges, ditches, levees, and the like, for which the estate of which he has the usufruct, may be liable. AuT. 573. — With respect to extraordinary or temporary charges, which may be imposed on things subject to the usufruct during its pendency, the usufructuary is bound to support them, unless they are of a nature to augment the value of the property subject to the usufruct. In this last case the usufructuary is bound to pay them, and shall be reimbursed by the owner at the termination of the usufruct, for the capital expended only. Art. 574. — The legacy of an annuity or alimony left by a testator, is to be wholly acquitted by the universal heir or legatee of the usufruct, and must be acquitted by the heir or legatee on an universal title, in proportion to his enjoyment, without any claim whatever to reimburse- ment on their part. Art. 575. — The usufructuary on a particular title is not bound to pay the debts for which the estate is mortgaged ; if he be compelled to pay them, he has his action against the owner, subject to the provisions con- tained in the title of donations inter vivos, and mortis catisa. 3 A. 175. Art. 576. — The univei'sal usufructuary, or usufructuary under an universal title, whose usufruct has been constituted by an act inter vivos, in good fiiith and at a time not suspicious, is not bound for the debts of the owner, nor can he be sued for them, unless some part of the pro- perty subject to the usufruct be mortgaged for the payment of tlicse debts, because with reference to the owner the usufructuary acquires under a particular title. Art. 577. — The universal usufructuary, or usufructuary under an universal title, whose usufruct has been constituted by an act of last will, is not directly bound for the debts of the testator, that is to say, the creditors of the succession have no action against him to force him to discharge the debts out of his own estate, saving their rights to cause to be seized the effects of tlie succession, and to proceed against the heir of the testator to obtain payment. Art. 578. — The heir of the testator who has bequeathed away the usufruct of his propcrtj-, whetlier universally or under an universal title, can, when the creditors of the succession sue him, sell a part of the property subject t# the usufruct, sufficient to yield the sum necessary for the discharge of the debts, in proportion to the sum for which the property subject to the usufruct is bound, if the usufructuary will not make an advance of this sum, as is mentioned in the following articles. 8 A. 175, 4S9; 4 A. 395, 3S9. Art. 570. — If tlie legacy of the usufruct includes all the property of the testator, and the universal usufructuary will advance the sum ;jecessary to discharge the debts of the succession, the capital shall be 8(5 OF USUFRUCT. returned to liim at the expiration of the usufruct without interest ; but if he will not make this advance, the lieir has the choice of niakinir the necessar>' advance himself for which the usufructuary shall allow him interest for the period of the usufruct, or to sell a part of the property subject to the usufruct, as stated in the preceding article. 8 A. 17.5,4*9; 4 A. 3S0. Ai;t. 580. — If, on the contrary, the legacy includes only a certain proportion of the property of the testator, or the whole of a certain kind of property, the usufructuar}- under an universal title, is bound only to contribute with the heir to the payment of the debts of the succession. Art. 581. — To establish this contribution, the value of the property subject to the usufruct, and that of the property remaining to the heir, is estimated, and the sum which they are each bound to contribute to the payment of the debts, is fixed in proportion to this valuation. After which, if the usufructuary will make an advance of the sum which he is bound to contribute, the capital mtist be returned to him without interest at the termination of the usufruct, but if he will not, the heir has the choice, either to pay this sum, in which case the usu- fructuary must pay him interest during the period of the usufruct, or to sell a ])art of the propert}'^ subject to the usufruct, sufficient to meet the sum which the usufructuary is bound to contribute. Art. 582. — Usufructuaries, with the exception of fathers and mothers, as is hereafter provided, are bound to pay no costs, but such as result from law-suits concerning the enjoyment of the property sub- ject to their usufruct, and to judgments which may have been given in such suits. Nevertheless, in suits instituted for the recovery of the thing subject to the usufruct against the owner, the expenses must be divided between the usufructuary and him. Art. 583. — Fathers and mothers who enjoy the legal usufruct of the property of their children, are bound to .support the expenses of all suits, concerning that property, in^the same manner as if they were the owners of it. Art. 584. — The usufi-uctuary wlio loses, by non-usage on his part, a service belonging to the property- subject to his usufruct, is responsi- ble for it to the owner. He is also responsible to the owner, if he per- mits a service to be acquired on the projierty by prescription. Art. 585. — If, during the period of the usufruct, a third person makes encroachments on the estate, or violates, in any other way, the rights of the owner, it is the duty of the usufructuary to give informa- tion of the same to the owner, and if ho fails to do it, he shall be an- swerable for all damages which may result to the owner, as he would be for injuries committed by hiujsclf Art. 5SG. — If the xisufruct consists of one head of^cattle, which dies without any neglect on the part of the usufructuary, he is not bound to return another, or to pay the estimated value of the same. 10 11. 40. Art. 587. — If a whole herd of cattle subject to the usufruct, dies owing to some accident or disease, without any neglect on the part of the ufAifructuary, he is bdund only to return the owner the hides of such •jattle, or the value of such hides. 89 OF USUFRUCT. 80 If the wliolo herd docs not die, the usufructuary is bound to make good the number of dead out of the ncAV-born cattle, as far as they go. 10 E. 46. Art. 588. — The usufructuary is not bound to return other slaves in the stead of such as died during his enjoyment, nor to pa}' their estimated value, unless they died through his fraud or neglect. Art. 589. — At the expiration of the usufruct, the usufructuary has no right to claim any compensation for the improvements which he contends he has made, although the value of the thing may have been increased by such improvements. The usufructuary is bound at the expiration of his usufruct, to aban- don, without compensation, not only the buildings and other works which he may have constructed upon the property, wlicther they have or have not foundatioils in the soil, but all other movable things which he may have attached to it permanently. Nevertheless, he or his heirs may take away the looking-glasses, pic- tures, statues and other ornaments, which he may have placed there, and which are fastened by plaster, lime or cement, but under the obli- gation of re-establishing the premises in their former situation. Art. 590. — The usufructuary may set off against the damages which have been caused to the property of which he has the usufruct, the im- provements which he has been obliged to abandon to the owner, provided the latter be of the description of those which by law he was authorized to make. Art. 591. — The undertaker or workman who has made, at the in- stance of the usufructuary, any building, work or improvement on the property, and who is unpaid at the expiration of the usuffuct, preserves his privilege on the same, and can enforce it against the owner under the modifications prescribed in the following articles. Art. 592. — If the works consisted in repairs, which the usufructuary was bound to make, or in buildings which he was authorized by law to make, the owner shall be obliged to pay what remains due to the work- man, reserving always his recourse against the usufructuary or his heirs. If, on the contrary, the works consisted of extraordinary repairs, which the owner was bound to make, he is obliged to pay the price to the workman, without any recourse against the iisufructuary or his heirs. Art. 593. — If the works performed were not of the description of those which the usufructuary Vas authorized by law to mako, tlie owner may retain them on paying the price of them to the workman, or he may oblige the usufructuary, or his heirs, to remove them at their expense, and in that case the workman will have recourse only against the usu fructuary and his heirs, for the payment of the price of his work. Section IV. — Of fhc Obligations of the Owtier. Art. 594. — The owner of the thing subject to the usufruct is bound to deliver it to the usufructuary, or to suffer him to take possession of Jie same. Art. 595. — He must neither interrupt, nor in any way impede tbo 90 OF USUFRUCT. usufructuary iu the cnjoj'mcnt of the usufruct, or in any manner impair his rights. Art. 596. — He is not at liberty, either before or after the delivery of the thing, to make any alteration on the premises or things subject to the usufruct, whereby the condition of the usufructuary may become worse, although the estate itself may be bettered by them. Hence he cannot raise an existing building, nor cause one to be erected in a place where there was none, unless it be with the consent of the usufructuary. He may still less cut down any trees of a wood, de- molish a building, or make any other alteration to the injury of the usu- fructuary ; and if he does, he shall be bound to make good the losses and damages which may result. Art. 597. — The owner of an estate subject to the usufruct, cannot create any new servitude thereon, unless it be done in such a manner as to be no injury to the usufructuary. Art. 598. — If the usufructuary cannot have the enjoyment, because of some obstacle which the proprietor is bound to remove, the latter shall make good the losses and damages, which are sustained by the non-en- jo3'ment, as if there be an eviction or any other disturbance against which the proprietor is bound to warrant, or if he refuses the usufructuary any necessary servitude, which he is bound to let him enjoy. Art. 599. — The proprietor is not bound to rebuild or repair that which happens to be demolished or damaged at the time that the usufruct is acquired, unless it happened by his fraud, or unless he was obliged by the title of the usufruct to put the property in good order. Art. 600. — The owner may mortgage, sell or alienate the thing sub- ject to the usufruct, without the consent of the usufructuary, but he is prohibited from doing it in such circumstances, and under such condi- tions as may be injurious to the enjoyment of the usufructuary. Section V. — How Usvfruct exjnres. Art. 601. — The right of the usufruct expires at the death of the usufructuary. Art. 602. — The legacy made to any one of the revenues of a pro- perty, is a kind of usufruct, which also ceases and becomes extinguished by the death of the legatee, if the contrary has not been exj^ressly stipu- lated. It is the same with all annual legacies as pensions of alimony and the like. Art. 603. — If the title of the usufruct has limited the right to it to commence or determine at a certain time, or in the event of a certain condition, the right does not commence or determine, till the condition happens or the time elapses. Art. 604. — If the usufructuary is charged to restore the usufruct to another person, his right to the usufruct expires, whenever the time for making such restitution arrives. Art. 605. — The usufruct granted until a third person shall arrive \t a certain age, lasts until that time, although the third person should iie before the age fixed on. Art. 606. — The usufiuct left to a surviving wife, until her dowry 91 OF USUFRUCT. 9l be refunded, continues until the whole of it, capital and interest, is paid, unless the default of payment proceeds from her act. If there be several heirs of the husband and one of them has paid what he owes of the dowry, the usufruct terminates for his portion. AiiT. 607. — The usufruct which is granted to corpoi-ations, congre- gations or other companies, which are deemed perpetual, lasts only thirty years. If these corporations, congregations or other companies are sup- pressed, abolished or terminate in any other manner, the usufruct ceases and becomes united with the ownership. Art. G08. — The usufruct expires before the death of the usufruc- tuary, by the loss, extinction or destruction of the thing subject to the usufruct. Thus the usufruct, which is established upon a building, expires, if the building is destroyed by fire or any other accident, or if it falls down through the decay of years. In this case the usufructuary would not even have the usufruct of the materials of the building, nor of the place in which it stood ; for the usufruct is to be restrained to what is specified in the title. But if the usufruct be assigned upon an estate of which the building is a part, the usufructuary shall enjoy both the soil and the materials. AuT. 609. — If it happens that a part of the house be destroyed, and that another part of it remains, the usufruct will be j^reserved of that part of the house which remains, and of the place on which the part of the house which is destroyed stood, for such place makes a part of the house, and is an accessory to the part of it that remains. Art. 610. — The thing subject to the usufruct is considered as lost, when it undergoes from accident such a change in its form, that it can no longer be applied to the use for which it was originally destined. Therefore the usufruct of a field or lot is extinguished, if one or the other be so covered with water by an inundation, that it becomes changed into a pond or swamp. But the usufruct revives if the humda- tion ceases, and the waters, on retiring, leave the land uncovered and in its former condition. Art. 611. — The changes made by the testator in the thing, the usufruct of which he has bctiucathed, after having so disposed of it, do not produce the extinction of the usufruct, unless the legacy by which the usufruct is established is considered as revoked, according to the rules prescribed on this subject, in the title of donations inter vivos and mortis causa. Art. 612. — Although the thing subject to the usufruct may be sold by tlie proprietor, or by his creditors, upon an order of seizure, tliis sale makes no alteration in the right of the usufructuary, who continues to enjoy the same, unless he has formally renounced it ; but if the thing subject to the usufruct was mortgaged by the person who granted such usufruct, before he granted it, the usufructuary may be evicted of his right in consetjucnce of the claim of tlie mortgage creditors; but in that case, the usufructuary has his action against the proprietor of tlie thing upon which the usufruct was assigned, as is provided in the third section of the present title. In the same manner the usufructuary may be de- prived of Lis usufruct by the seizure and sale which may be made of the eamc by his own creditors 92 OF USUFRUCT. Art. G13. — The usufruct may be forfeited likewise by the noii usage of this right by the usufructuary, or any person in his name, during ten years, if the parties be present, and twenty years if they be absent, whether the usufruct be constituted on an entire estate, or only a divided or individual part of an estate. Art. 614. — The usufruct is extinguished by the usufruct and the ownership being vested in one and the same person, that is, when the owner acquires the usufruct, or when the usufructuary acquires the naked owiiership. The reason is that no services can be due by a thing to the owner of such thing. Art. 615. — If the usufructuary acquires the naked osvnership, the usufruct is thereby so- extinguished, that if afterwards he loses the ownership, the entire ownership is lost to him, and the usufruct does not revive, unless the title by which he acquired the ownership be an- nulled for some previously existing defect, or some vice inherent in the act ; for in that case the usufructuary never having been the owner, no consolidation has taken place, and the usufruct continues. Art. 616. — The usufruct may cease by the abuse which the usu- fructuary makes in his enjoyment, either in committing waste on the estate, or in suffering it to go to decay, for want of repairs, or in abusing in any other manner the things subject to the usufruct. In such cases the judge may, according to circumstances, decree the absolute extinction of the usufruct, or order that the owner shall re- enter into the enjoyment of the property subject to the usufruct, on condition that he shall pay annually to the usufructuary or his representatives until the usufruct expires, a sum which shall be fixed on by the judge, in proportion to the value of the property subject to the usufruct. Art. 617. — The usufructuary may prevent the re-entry of the owner in case of damage committed by the former on the property subject to the usufruct, by offering to make the necessary repairs, and giving a sufiicient security that he will make them, which he is bound to make, within a certain fixed time. Art. 618. — The creditors of the usufructuary may intervene in all suits which arise between him and the owner on this subject, for the preservation of their rights, and may prevent the expulsion of the usu- fructuary by offering to repair the damages committed, and to give security for the future. Art. 619. — The creditors of the usufructuary can cause to be an- nulled any renunciation which he may have made of his right to their prejudice, whether it be accompanied with fraud or not, and they are permitted to exercise all the rights of their debtor in this respect. In all cases the renunciation of the usufructuary cannot be inferred from circumstances ; it must be express. Art. 620. — When the usufruct has expired, the thing which was subject to it, returns to and becomes again incorporated with the owner- ship, and from that time the person who had only the bare ownership, begins to enter into a full and entire ownership of the thing. Nevertheless, the usufructuary or his heirs have the right to retain possession of the thing subject to the usufruct, until they have been OF USE AND HABITATION. 9i fully repaid for all expenses and advances for wliich they have, by law. recourse against the owner or his heirs. CHAPTER II. OF USE AND HABITATION. . ^T 621 __Usc is the right given to any one to make a gratuitous ,,so of a thin- belonging to another, or to exact such a portion of the fruits it produces, as is necessary for his personal wants and those of ^'' A^^^622.-The right of habitation is the right of dwelling gratui- touslv'in a house, the property of another person. ^ , ,. , , , ^^ Art! G23.-The right and use of habitation is established and cx- tintruished in the same manner as the usufruct. • p xi Tt G-24 -The person having the use, if he be in possession of the thin. ;ffocted with his right, as is said hereafter, and he who enjoys the rilt of h bitation, are bound to furnish security, and to make an inven- tory n the same manner as the usufructuary and under the rules excepti^^« and restrictions established on this subject m the chapter ./ '"'•£?■ 625 -But the person having the use is not_ bound to give secuTl^y nor to make an inventory, if the thingremains ^^fo possession of tie owner and his right is confined to exacting ou of the trnits pro- du ed by the thing what is necessary for his personal wants ai d tliose ofhisSnily; for in relation to these fruits, he is not bound tu make ^°^X!ff Goe^lThe rights to use and habitation are regulated by the title whichlias established them, and receive accordingly a more or lcs.s ex enlve sense, it being well understood that these conventions do not exceed the limits of the laws on use and habitation; if they do, they "■"Thus'a i-i^'ht 'to receive the fruits of a property and to sell and dis- pose of themlveely, would be a right of usufruct, and all the laws con- cernin"- usufruct would be applicable to it. . . f +i „ Ai"t 627 -If the title be silent with respect to the extent of the right, the rights to use and habitation shall be determined by the fol- ^°'' Air6?8 -That which distinguishes the usufruct of a property from the use of it,'is this, that the enjoyment of the usufructuary is not con- fined to wha^ is necessary for his consumption, but he takes all the fruits, and can dispose of them as he pleases. The person, on the other hand, who has only the use of an estate has a right onl^ to such fruits as may be necessary for his daily wants and those of his family. . , , ^ iVut he may claim so much of those fruits as may be necessary to supply the wants of the woman he has married, and of his children born since the use has been granted to him. A, r 6'^9 -He who lias the use of the fruits of an estate cannot go upon tiie estate to exercise his rights, still less is he permitted to live 94 OF USE AND HABITATION. tliere, unless he have thereon a right of habitation ; he has only au aetioE against the owner to obtain from him such of the fruits as may be neces- sary for his daily wants and those of his family. He who has the use may therefore cause to be fixed by the judge from time to time, the proportion of fruits which he has a right to exact from the owner of the property ; and this must be determined according to the condition of him who has the use, and the fortune of him who conferred the right, if the title be not explicit on this subject, and ac- cording to the increase or diminution of the family of him who has the use. Art. 630. — The right of use of a house and that of habitation being alike, are subject to the same rules. Art. 631. — But he who has the use of one or more slaves, has the right to enjoy their service for his wants and those of his family. Art. 632. — He who has the use of a herd of cattle cannot make any other use of the same than by taking the milk necessary for his daily use and that of his family. Art. 633. — He who has the use of such things as cannot be used without being expended or consumed, as money, provisions or liquors, has a right to use such things as the usufructuary may, and on the same terms. Movables which, although not consumed entirely, are gradually worn out by use, such as linen, furniture, ships or boats, are governed by the same rule. Art. 634. — There is this diiference between the person who has the use and the usufructuary, that the person, who has the use, can neither transfer, let, nor give his right to another. Art. 635. — The right of the person, who has the use, is not only for one or more years, but it lasts during the life of such person, if the title upon which this right is grounded does not otherwise provide. Art. 636. — He who has a right to habitation in a house, may reside there with his family, though he may not have been married at the time this right was granted to him. Art. 637. — The right of habitation is confined to what is necessary for the habitation of the person and of the family of the person to whom the right of use or habitation is granted. But nothing prevents him, who enjoys the right of habitation, from receiving in the house, or the part of it which has been assigned to him, friends, guests or even boarders, provided he inhabits it himself. Art. 638. — The word family^ made use of in this chapter, is to be understood of the wife, children and servants of the person to whom the right of use or habitation is granted. Art. 639. — The right of habitation can neither be transferred, let nor given to any one else ; it is, as well as the use, exclusively a personal right. Art. 640. — He who has the use, and he to whom the right of habi- tation has been granted, are bound to use those things of which they have the possession and enjoyment, as prudent administrators would do, and to restore them to the owners at the expiration of their terms, in the condition they received them, and not injured by their neglect or fraud. 35 OF SERVITUDES. 95 Art. 641. — If the person who has the use, consumes all the fruits of the estate for his wants, or if he occupies the whole house, he is bound to defray the expenses of cultivation and plantation work : he is liable to the ordinary repairs, to the payment of taxes, and to the other annual charges in the same manner as the usufructuary is. But if he receives only a part of the fruits of the estate, or if he oc- cupies only a part of the house, he contributes his share of said expenses, in proportion to what he enjoys. TITLE IV OF PREDIAL SERVITUDES OR SERVITUDES OF LAND. CHAPTER I. GENERAL PRINCirLES. Art. 642. — All servitudes which affect lands may be divided into two kinds, personal and real. Personal servitudes are those attached to the person for whose ben- efit they are established, and terminate with his life. This kind of ser- vitude is of three sorts, usufruct, use and habitation ; Real servitudes, which are also called 2»'cdial or landed servitudes, are those which the owner of an estate enjoys on a neighboring estate for the benefit of his own estate. They are called 2^>'cdial or landed servitudes, because being estab- lished for the benefit of an estate, they are rather due to the estate than to the owner personally. This kind of servitude forms the subject of the present title. Art. 643. — A real or predial servitude is a charge laid on an estate for the use and utility of another estate belonging to another proprietor. Art. 644. — From the definition contained in the preceding article it follows, that to establish a predial or real servitude, there must first be two different estates, one of which owes the servitude to* another. If then a stipulation be made of a servitude in favor of a person, and not in favor of an estate, the obligation will not be null on that account, but it will not create a real servitude. Art. 645. — It is necessary, in the second place, that these two estates belong to two different persons, for if they are both the property of one person, the application which the owner makes of one to the ad- vantage of the other, is not called a 'servitude, but a disposition of the owner, which will be explained hereafter. Art. 646. — It is necessary, in the third place, that the servitude have for its object the use or benefit of the estate, in favor of which it is established. But it is not necessary that this benefit exist at the time of the con- 9.6 OF SERVITUDES. tract ; a mere possible convenience or remote advantage is sufficient to support a servitude. In order to render a servitude null, it is not enougli that it should appear to be useless, it must be shown that at no time, and under no circumstances, it can possibly become useful to the person in whose fa- vor it is enacted. Art. 647. — Predial servitudes, being due from one estate to another it commonly happens that these estates are in the same neighborhood. Nevertheless, this neighborhood is not a condition essential to the existence of the servitude. Nor is it necessary that the estate, which owes the servitude, and that to which it is due, be contiguous ; it suffices that they be suffi- ciently near, for one to derive benefit from the service in the other. Art. 648. — A servitude is an incorporeal right which cannot exist .jvithout the estate to which it belongs, and of which it is an accessory. Art. 649. — Servitudes being essentially due from one estate to an- other for the advantage of the latter, they remain the same as long as no change takes place in regard to the two estates, whatever change may take place in the owners. Art. 650. — Servitude is a right so inherent in the estate to which it is due, that the faculty of using it, considered alone and independent of the estate, cannot be given, sold, let, or mortgaged without the estate to which it appertains, because it is a servitude which does not pass to the person but by means of the estate. Art. 651. — One of the characteristics of a servitude is, that it does not oblige the owner of the estate subject to it to do any thing, but to abstain from doing a particular thing, or to permit a certain thing to be done on his estate. Art. 652. — The rights of servitudes, considered in themselves, are not susceptible of division, neither real nor imaginary. It is impossible that an estate should have upon another estate part of a right of way, or of view, or any other right of servitude, and also that an estate be charged with a part of servitude. The use of a right of servitude may be limited to certain days or hours ; but thus limited it is an entire right, and not part of a riglit. From tbence it follows that a servitude existing in favor of a piece of land is due to the whole of it, and to all the parts of it, so that if the land be sold in parts, every purchaser has the right of using the servitude in toto. Art. 653. — Though the right of servitude be indivisible, and must be established for the whole, and not for a part, nothing prevents the advantage resulting from it from»being divided, if it be susceptible of division, as for example, the right of taking a certain number of loads of earth from the lands of another, or of sending to pasture a certain number of animals on the land of another. Art. 654. — The part of an estate upon which a servitude is exer- cised, does not cease to belong to the owner of the estate ; he who has 97 OF SERVITUDES. 97 the servitude has no right of property iu that part, but only the right of using it. Hence the soil of public roads belongs to the owners of the land on which they are made, though the public has the use of them ; the owners of the land cannot change the roads except in conformity with the re- gulations of the police established on this subject. Art. 655. — Servitudes arise either from the natural situation of the place, from the obligations imposed by law, or from contract between the respective owners. CHAPTER II. OF SERVITUDES WHICH ORIGINATE FRO.M THE NATURAL SITUATION OF THE PLACE. Art. 656. — It is a servitude due by the estate situated below to re- ceive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servi- tude. The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water. The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more bm'densome. 12 L. 504 ; 13 L. 54; 14 L. Ml ; 5 A. 424. Art. 657. — He whose estate borders on running water, may use it as it ru.us, for the purpose of watering his estate, or for other purposes. He through whose estate water runs, whether it originates there or passes from lands above, may make use of it, while it runs over his land ; but he cannot stoj) nor give it another direction, and is bound to return it to its ordinary channel where it leaves his estate. Art. 658. — Every proprietor has a right to make an inclosure around his lands. Art. 659. — He may compel his neighbors to fix and mark the limits of their estates which are contiguous to his. The limits are established, and boundary stones or posts placed at their joint expense. CHAPTER III. OF SERVITUDES IMPOSED BY LAW. Art. 660. — Servitudes imposed by law are established either for the public or common utility, or for the utility of individuals. 3 L. 557 ; 10 L. 55 ; See IS L. 295. Art. 661. — Services imposed for the public or common utility, relate to the space which is to be left for public use by the adjacent proprietors on the shores of navigable rivers, aad for the making or re- pairing of levees, roads, and other public or common works. All that relates to this kind of servitude is determined b;y laws or particular regulations. 8L.55T; 8A.4S2; 6 A. 77. 7 98 OF SERVITUDES. Art. 662. — The law imposes upon the proprietors various obliga tions towards one another, independent of all agreements ; and those are the obligations which are prescribed in the following articles. 3 A. 440; See 17 L. 3S9. Art. 663.— Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. See 17 L. 889. Art. 664. — Although one be not at liberty to make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, even although it should occasion some inconvenience to his neighbor. Thus he who is not subject to any servitude originating from a par- ticular agreement in that respect, may raise his house as high as he pleases, although by such elevation he would darken the lights of his neighbor's house, because this act occasions only an inconvenience, but not a real damage. Art. 665. — If the works or materials for any manufactory or other operation cause an inconvenience to those in the same or in the neigh- boring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place. Art. 666. — Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages which may result from the neglect of the proprietor in that respect. Art. 667. — When a building threatens ruin, the neighbor has a right of action against the proprietor to compel him to cause such a build- ing to be demolished or propped up. In the mean time, if he incurs the danger of any damage by its fall, he may be authorized to make the necessary works, for which he shall be reimbursed after the damage shall have been ascertained by persons of the art. Art. 668. — The councils and other municipal bodies of cities and other incorporated places of this State, are authorized to make such re- gulations as they may think proper, to determine the mode of proceed- ing in case of fire, when it becomes necessary in order to arrest its pro- gress, to pull down houses which have taken fire, or even those which the fire has not reached. But io this case the proprietors whose houses have been pulled down before they have taken fire, shall have a right to an indemnification in proportion to their loss, which indemnification shall be paid by the cor- poration of the city or place where the conflagration has taken place, by means of an extraordinary and proportional tax, which shall be laid to this effect upon all proprietors of houses of the said place, or in any other manner, from the funds of the corjjoration. Art. 669. — He who builds either above or below his soil, adjoining the property of his neigbor, is bound to build in a perpendicular line. Art. 670. — The other particular services imposed by law, relate to the following objects : 99 OF SERVITUDES. 99 To boundary walls, inclosures, and ditches ; To cases where it is necessary to have double or counter walls ; To the right of lights on the property of a neighbor ; To carrying off water from roofs ; And to the right of passages. 3 A. 440 ; Seo 11 L. 394 ; 16 L. 551. Section I. — Of Walls, Fences, and Ditches in common. Art. 671. — He who first builds in the cities, towns, or suburbs of this State, in a place which is not surrounded by walls, may rest one half of his wall on the land of his neighbor, provided he builds with stones or bricks at least as high as the first story, and not in frame or otherwise ; and provided the whole thickness of this wall do not exceed eighteen inches, not including the plastering, which must not be more than three inches. But he cannot compel his neighbor to contribute to the raising of this wall. 1 A. 140 ; 3 A. 440 ; See 2 L. 531. Art. 672. — If the neighbor be willing to contribute for his half to the building of the wall thus raised, then this wall is a wall in common between the proprietors. The neighbor who has even refused to contribute to the raising of this wall, preserves still a right of making it a wall in common, by pay- ing to the person who has made the advance, the half of what he has laid out for its construction, according to the rules hereafter established. 1 A. 140. Art. 673. — Every wall being a separation betwixt buildings as high as the upper part of the first story, or betwixt the yard and garden in the cities, towns, and suburbs of this State, and even any other inclo- sure in the fields, shall be presumed to be in common, if there be no title, proof, or mark to the contrary. 6 A. 566. Art 674. — The repairs and building of walls in common are to be made at tlie expense of all who have a right to the same, and in propor- tion to their interest therein. Art 675. — Nevertheless every co-proprietor of a wall in common may be exonerated from contributing to the repairs and rebuilding, by giving up his right of common, provided no building belonging to hiiu be actually supported by the wall thus held in common. Art. 676. — Every co-proprietor may build against a wall held in common, and cause beams or joists to be placed within two inches of the whole thickness of the wall, saving to the neighbor the right of diminishing with the chisel the length of the beam till it do not exceed the half of the thickness of the wall, in case he himself should wish to fix beams in the same place, or to build a chimney against it. Art. 677. — Every co-proprietor is at liberty to increase the height of the wall held in common, but he alone is to be at the expense of raising it, aud of repairing and keeping the part above the height of the wall in common in good order, and besides he alone is liable for all ex- penses arising from its being raised higher according to its value. IT L. 889; 6 A. 506. 100 OF SERVITUDES. Art. 678. — If the wall held in common cannot support the addi tional weight of raising it, he who wishes to have it made higher, is bound to rebuild it anew entirel}- at his own expense, and the additional thickness must be taken from his property. 17 L. 3S9 ; 6 A. 566. Art. 679. — The neighbor who did not contribute to the raising of the wall held in common, may cause the raised part to become common by paying one-half the expense of such raising, and the value of the half of the soil employed for the additional thickness, if there is any. i3L. 2T1. Art. 680. — Every proprietor enjoying a wall has, in like manner, the right of making it a wall in common, in whole or in part, by reim- bursing to the owner of the wall one-half of its value, or the half of the part which he wishes to hold in common, and one-half the value of the soil upon which the wall is bu.ilt, if the person who has built the wall has laid the foundation entirely upon his own estate. 1 A. 140 ; 3 A. 165. Art. 681. — -Neither of the two neighbors can make any cavity within the body of the wall held by them in common, nor can he affix to it any work without the consent of the other, or without having, on his refusal, caused the necessary precaution to be used, so that the new work be not an injury to the rights of the other, to be ascertained by persons skilled in building. IT L. 3S9; Ses Arts. 1S05, 1811. Art. 682. — Every one has a right to compel his neighbor within the cities, towns and suburbs of this State, to contribute to the making and repairing of the fences held in common, by which their houses, yards and gardens are separated, which shall be made in the manner which is or may be prescribed by the regulations of the police on this subject. And if one of the proprietors has been alone at the expense of ma- king the inclosures held in common, he may compel the other to make it in his turn, and the presumption shall be that the inclosure was made by him on whose side it is nailed, unless there exists a voucher or proof to the contrary. Art. 683. — In the country the common boundary inclosures between two estates are made at the expense of the adjacent estates, if the es- tates are inclosed ; otherwise, the estate which is not inclosed, is not bound to contribute to it. Art. 684. — Every fence, which separates rural estates, is considered as a boundary inclosure, unless there be but one of the estates inclosed, or unless there be some title or proof to the contrary. Art. 685. — Every ditch between two estates shall be supposed held in common, unless there be a voucher or proof to the contraiy. Art. 686. — A ditch held in common is to be kept at the expense of the two contiguous proprietors. Art. 687. — Every proprietor in the cities, towns or suburbs of this State, is forbidden to plant on the boundary line which separates his estate from that of his neighbor, trees which may be of any injury what- soever to his neighbor. And if his neighbor suffers any damage from them, he can oblige UU^^-f~^^^ 101 OF SERVITUDES. 10 : the owner to have them torn up or the branches of them cut off, which extend over his estate. If the roots only extend themselves on his estate, the neighbor has the right to cut them up himself. Section II. — Of the Distance ami of the Intermediary Works required for certain Buildings. Art. 688. — He who wishes to dig a well or a necessary, to build a chimney, or hearth, a forge, an oven, a furnace or stable, to put up. shelves or to store salt or other corrosive substances near a wall, whether held in common or not, is bound to leave the distance, and cause to be made the works prescribed by the regulations of the police, in order that his neighbor be not injured thereby. And if there be no regulations of police upon all or any of these subjects, he shall conform to the following rules, in cases which have not been foreseen. Art. 689. — He who wishes to build a chimney or hearth against a wall held in common, is bound to make a double wall of brick or other proper materials six inches thick. Art. 690. — He who wishes to build an oven, a forge or a furnace against the wall held in common, is bound to leave half a foot interval and vacancy betwixt such wall and that of his oven, forge or furnace, and this last wall must be one foot thick. Art. 691. — He who wishes to dig a necessary or a well against a wall, whether held in common or not, is bound to build another wall one foot thick ; and when there is a well on one side and a necessary on the other, there shall be four feet masonry betwixt the two, including the thickness on both sides; but between two wells three feet interval are sufficient. Sec 18 L. TO. Section III. — Of Sights on the Property of a Neighbor. Art. 692. — One neighbor cannot, without the consent of the other, open any window or aperture through the wall held in common, in any manner whatever, not even with the obligation, on his part, to confine himself to lights, the frames of which shall be so fixed within the wall that they cannot be opened. Art. 693. — No one shall build galleries, balconies or other projec- tions on the border of an estate, so that they extend beyond the boun- dary line, which separates it from the adjoining estates. Section IV. — Of the Manner of carrying off Rain from the Roof. Art. 694. — Every proprietor is bound to fix his roof so that the rain- water fall upon his own ground, or on the public road. He has no right to cause the same to fall on his neighbor's ground. 7 L. 52. Section V. — Of the Right of Passage and of Way. Art. 695. — The proprietor, whose estate is inclosed, and who has no way to the public road, may claim the right of passage on the estate 103 0¥ SERVITUDES. \ of his neighbors for the cultivation of his estate, but he is bound to in dcmnify thorn in proportion to the damage he may occasion. 11 L. 894; 16L.55; 6 A. 118. Art. 696. — The owner of the estate, which is surrounded by other lands, has no right to exact the right of passage from which of his neigh- bors he chooses. Tlie passage shall be generally taken on the side where the distance is the shortest from the inclosed estate to the public road. Nevertheless, it shall be fixed in the place the least injurious to the person on whose estate the passage is granted. IG L. 55 ; 3 A. 56T, 697 ; See 11 L. 394 Art. 697. — It is not always the owner of the land which affords the shortest passage, who is obliged to suflTer the right of passage ; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor, coparcener or other proprietor of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude. 3 A. 56T. Art. 698 — A passage must be furnished to the owner of the land surrounded by other lands, not only for himself, his slaves and workmen, but for his animals, carts, instruments of agriculture, and every thing which may be necessary for the use and working of his land. 11 L. 894; 16 L. 55; See Arts. 695, 696. Art. 699. — When the place for the passage is once fixed, he to whom this servitude has been granted, cannot change it, but he who owes this servitude, may change it from one place to another, in order that it may be less inconvenient to him, provided that it afford the same facility to the proprietor of the servitude. Art. 700. — Eoads are of two kinds, public and private. 3 A. 4S7. Art. 701. — Public roads are those which are made use of as high roads, which are generally furnished and kept up by the proprietors of estates adjacent to them. 3 A. 4ST. Art. 702. — Private roads are those which are only open for the benefit of certain individuals to go from and to their homes, for the ser- vice of their lands, and for the use of some estates exclusively. 3 A. 487; See 16 L. 55. Art. 703. — He who from his title as owner is bound to give a public road on the border of a river or stream, must furnish another without any compensation, if the first be destroyed or carried away. And if the road be so injured or inundated by the water, without being carried away, that it becomes impassable, the owner is obliged to give the public a passage on his lands, as near as possible to the public road, without any recompense therefor. 8 A. 437. 103 OF SERVITUDES. 103 Art. 704. — The action of indemnificatiou, granted against the per- son who claims the passage, may be barred by prescription, and the pas- sage shall be continued, although the action in indemnification be no longer maintainable. 11 L. 394. CHAPTER IV. OF CONVENTIONAL OR VOLUNTARY SERVITUDES. Section I. — Of the different Kinds of Conventional or Voluntary Servitudes. Art. 705. — Proprietors have a right to establish on their estates, or in favor of their estates, such servitudes as they deem proper : Provided nevertheless, that the services be not imposed on the person or in favor of the person, but only on an estate or in favor of an estate ; and pro- vided moreover, that such services iinply nothing contrary to public order. The use and extent of servitudes thus established, are regulated by the title by which they arc granted, and if there be no title, by the fol- lowing rules : Art. 706. — All servitudes are established either for the use of houses or for the use of lauds. Those of the first kuid are called urban servitudes, whether the buildings to which they are due be situated in the city or in the country. Those of the second kind are called rural servitudes. Art. 707. — The principal kinds of urban servitudes are the follow- The right of support ; that of drip ; that of drain or of preventing the drain ; that of view or of lights, or of preventing the view or lights from being obstructed ; that of raising buildings or walls, or of preventing them from being raised ; that of passage, and that of drawing water. 7L. 62. Art. 708. — The right of support is one by which a proprietor stipu- lates that his neighbor shall be bound to permit that his house or his timbers should rest on the wall of his neighbor. In these servitudes, the owner of the estate subject to them is bound to keep his wall in a condition to bear them, unless the contrary has been agreed upon ; but he may relieve himself from this charge by abandon- ing his wall. The servitude, by which one is permitted to project works over the estate of his neighbor, is of the same kind. Art. 709. — livery pi-oprictor is bound so to construct his roofs that the rain falling on them should not fall on the land of his neighbor, but on his own or the public way. Tliis falling of water gives rise to the servitude of drip. The servitude of drip is tliat by which any one engages to permit the waters from the roof of his iiciglibor to fall on liis estate, or that by wliidi any one obliges himself to suffer the waters from his own roof to fall on the estate of his neighbor 104 OF SERVITUDES. Art. 710. — The right of drain consists in the servitude of passing water collected in pipes or canals through the estate of one's neighbor. This servitude is different from the right of drip, because the charge it imposes is more onerous. It is much less inconvenient to receive the rain which falls than a body of water which may carry away the land by its violence. The contrary servitude is the right of preventing this passage of water. Art. 711. — We understand by view every opening which may, more or less, facilitate the means of looking out of a building. Lights are those openings Avhich are made rather for the admission of light, than to look out of. Art. 712. — Servitudes of view are of two kinds: one which confers the right of full view with the power of preventing one's neighbor from raising any buildings which obstruct it, and the other which gives a pro- prietor the right of preventing his neighbor from having any view or lights on the side on which their estates unite, or that he exercise these servitudes according to his title. Art. 713. — Servitudes of lights arc also of two kinds; one which gives the owner of a house the right of opening windows in a wall held in common, for the admission of light, with the right also of preventing his neighbor from raising any building which can obstruct the admission of light : and the other, which gives the right of preventing one's neigh- bor from opening his wall, or a wall held in common, for the admission of light from a yard, or other place, or which limits him to certain lights which are conferred by his title Art. 714. — The right of obliging one's neighbor to I'aise his wall to a certain height ; and, on the contrary, that of preventing one's neighbor from raising his house beyond a certain height, are also servi- tudes. Art. 715. — The right of passage in cities is a servitude by which a proprietor permits his neighbor to pass through his house or lot to arrive at his own. This servitude, to be perpetual, must be so expressed in the title ; otherwise, it ceases with the person who enjoys it, and does not pass to his heirs. Art. 716. — The right of drawing water is a servitude by which one suffers his neighbor to draw water from the well or spring he has on his laud ; the use of this servitude is confined to those who live in the house of the person enjoying the servitude, unless the contrary be expressed in the title. Art. 717. — The principal rural servitudes are those of passage, of way, of taking water, of the conducting of water or aqueduct, of water- ing, of pasturage, of burning brick or lime, and of taking earth or sand from the estate of another. See 11 L. 394 105 OF SERVITUDES. 105 Art. 718. — The right of passage or of way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, on horseback, or in a vehicle, to drive beasts of burden or carts through the estate of another. When this servitude results from the law, the exercise of it is con- ' fined to the wants of the person who has it. When it is the result of a contract, its extent and the mode of using it, is regulated by the contract. See 11 L. 394. Art. 719. — The right of drawing water from the spring of another is also a servitude. Art. 720. — The conducting of water or aqueduct is the right by which one conducts water from his estate through the land of his neigh- bor, by means of an aiiueduct or ditch. Art. 721. — The right of watering one's animals at the pond or spring of another, is also a servitude. Art. 722. — Pa.sturage is the right of feeding one's cattle on the estate of another. • Art. 723. — Servitudes are either continuous or discontinuous. Continuous servitudes are those whose use is or may be continual without the act of man. Such arc aqueducts, drain, view, and the like. Interrupted servitudes are such as need the act of man to be exer- cised. Such are the rights of passage, of drawing water, pasture, and the like. Sec 11 L. 894; 14 L. 173. Art. 724. — Again, servitudes are either visible and apparent or non- apparent. Apparent servitudes are such as are to be perceivable by exterior works, such as a door, a window, an aqueduct. Non-apparent servitudes are such as have no exterior sign of their existence, such for instance, as the prohibition of building on an estate or of building above a particular height. Section II. — Hoio Servitudes are established. Art. 725. — The right ot imposing a servitude permanently on an estate belongs to the owner alone. Art. 72G. — lie who has the naked property of an estate cannot sub- ject it to a servitude without the consent of the usufructuary, unless it be to take effect at the termination of the usufruct. Those servitudes which do no injury to the rights of the usufructu- ary, such as that of not raising his house higher than it is, are ex- cepted. Art. 727. — It is not sufficient to be an owner in order to establish a servitude ; one must be master of his rights and have the power to alienate ; for the creation of a servitude is an alienation of a part of the property. Thus minors, married women, persons interdicted, cannot establish 106 OF SERVITUDES. servitudes on their estates, except according to the forms prescribed foi the alienation of their property. Art. 728. — The husband cannot establish a servitude on the dotal property of his wife, even with her consent, unless it be expressly sti pulated in the marriage contract that he shall be permitted to alienate her dotal property with her consent. Art. 729. — An attorney in fact cannot impose a servitude on the estate intrusted to him, without a special power to that effect. Art. 730. — Coi'porations can only establish servitudes on their pro- perty in the cases and with the forms in which they can alienate. Art. 731. — The purchaser, with a reservation of redemption, may impose servitudes on the property acquired by him ; but they cease if the redemption takes effect. Art. 732. — Those who have not the full property, whose property in the estate ceases on a certain condition, or at a particular time, may establish servitudes thereon, but they cease with their rights, and those in whose favor the servitudes are established cannot avail themselves of prescription, because before that time no action for the dissolution of the servitude could be instituted against them. Art. 733. — The usufructuary cannot establish on the estate of which he has the usufruct any charges in the nature of services, because they of necessity cease with the usufruct. Art. 734. — The co-proprietor of an undivided estate cannot im- pose a servitude thereon, without the consent of his co-proprietor. The contract of servitude, however, is not null ; its execution is suspended until the consent of the co-proprietor is given. Art. 735. — The co-proprietor who has consented to the establish- ment of a servitude on property held in common, cannot prevent the exercise of the servitude by objecting that the consent of his co-pro- prietor has not been given. If he becomes owner of the whole estate, he is bound to permit the exercise of the servitude to which he has before consented. Art. 736. — If the co-proprietor has established the servitude for his part of the estate only, the consent of tlic other owners is not necessary, but the exercise of tlie servitude must be suspended until his part be ascertained by a partition. In this case, he to whom the servitude has been granted, may compel the co-i^roprietor from whom he received it, to vSue for a partition, or may sue for it himself. Art. 737. — If in the suit for a partition it be determined that the estate be disposed of by licitatiou, and he who has granted the servitude becomes proprietor of the whole, the servitude then exists on the whole estate, as if he had alwa' s been the sole owner. But if by the licitatiou the estate be adjudicate 1 to any other of 107 OF SERVITUDES. 107 the co-proprietors, the servitude becomes cxtiuct, and the person who granted it is bound to return the price he received for it. Akt. 738. — If a co-proprietor who has established a servitude, sells his undivided portion to a person, who afterwards, by licitation, becomes owner of the whole, he is, like his vendor, bound to permit the cxei'cisc of tlie servitude on the whole estate. Art. 739. — Servitudes are established by all acts by which property can be transferred, and as they are not susceptible of real delivery, the use wliich the owner of the estate to whom the servitude is granted, makes of this right, supplies the place of delivery. Art. 740. — Servitudes may be established on all things susceptible of ownership, even on the public domain, on the common property of cities and other incorporated places. Art. 741. — It is not contrary to the nature of servitudes that the same servitude should be established on several estates for tlie benefit of one, or that the same estate should be subject to a servitude for the benefit of several estates. Art. 742. — By the title by which a servitude is established in fa- vor of an estate, a servitude may also be imposed on the estate, for the benefit of the estate from which the first servitude is due. In cases where there are reciprocal servitudes, all the rules concern- ing simple servitudes are applicable. Art. 743. — A servitude may be established or acquired in favor of an estate which does not exist, or of which one is not yet the owner ; but if tlie hope of becoming the owner be not realized, the servitude falls. It may also be stipulated that an edifice not yet built, shall support a servitude ; or, shall have the benefit of one when it is built. Art. 744. — A servitude may be established or released for a certain part of an estate, provided the part be designated. Art. 744. — He whose estate is encumbered with a servitude, may impose on it other servitudes of any kind, provided they do not aflfcct the rights of him who has acquired the first. Art. 746. — An estate being mortgaged docs not prevent the owner from establishing servitudes on it, saving always to the creditor the right of demanding liis debt, if the establislimcnt of the servitude evi- dently depreciates tlie value of the estate, or of causing the estate to be sold as free from all servitudes ; but the person who has actjuired the servitude, shall have in such case his action for the restitution of the value of the servitude against the owner of the estate. Art. 747. — The exercise of servitudes may be limited to certain times. Thus the right of drawing water may be confined to certain houts, the right of passage to a part of the day. Art. 748. — Legal servitudes, and even those which result from the situation of places, may be altered by the agreement of parties, provided the public interest does not suffer tlicreby. Art. 749. — Servitudes which tend to affect the free use of property, 108 OF SERVITUDES. in case of doubt as to tlieir extent or the manner of using them, are al ways interpreted in favor of the owner of the property to be aifected. Art. 750. — Servitudes being established on estates in favor of other estates, and not in favor of persons, if the grant of the right deckre it to be for the benefit of another estate, there can be no doubt as to the nature of this right, even though it should not be called a servitude. Art. 751. — If, on the other hand, the act establisliing the servitude does not declare that the right is given for the benefit of an estate, but to a person who is the owner of it, it must then be considered whether the right granted be of real advantage to the estate, or merely of per- sonal convenience to the owner. Art. 752. — If the right granted be of a nature to assure a real ad- vantage to an estate, it is to be presumed that such right is a real ser- vitude, although it may not be so styled. Thus, for example, if the owner of a house contiguous to lands bor- dering on the high road, should stipulate for the right of passing through lands, without it being expressed that the passage is for the use of his house, it would be not the less a real servitude, for it is evident that the passage is of real utility to the house. Art. 753. — If, on the other hand, the right, from its nature, is a matter of mere personal convenience, it is considered personal, and can- not be made real but by express declaration of the parties. Thus, for example, if the owner of a house near a garden or park, should stipulate for the right of walking and gathering fruits and flowers therein, this right would be considered personal to the individual, and not a servitude in favor of the house or its owner. But the right becomes real and is a predial servitude, if the person stipulating for the servitude, acquires it as owner of the house, and for himself, his heirs and assigns. Art. 754. — When the right granted is merely personal to the indi- yidual, it expires with him, unless the contrary has been expressly stip- ulated. Section III. — Hoiv Servitudes are acquired. Art. 755. — Those who can establish servitudes on their lands can also acquire servitudes. There are some persons who cannot establish servitudes, who never- theless can acquire them ; such as those who cannot exercise their rights, minors, women not authorized, administrators, tutors, husbands ; for the acquisition of a servitude augments the value and convenience of an estate. Art. 756. — He who assumes the quality of owner, and enjoys an estate as such in good or bad faith, he who acts in the name of the owner, though he have no mandate from the owner, can acquire servi- ^09 OF SERVITUDES. lOe tudes, and the person granting them cannot afterwards revoke tliera, for it is not to the person but to the estate thej are granted. Art. 757. — Nevertheless, in all the cases mentioned in the preceding articles, if the minor, the woman not authorized, or the owner find the contract onerous, they can annul it or refuse to execute it by renouncing the servitude. Art. 758. — Even those who arc neither owners nor representatives of the owner, and who have not expressly assumed the quality of acting in his name, may acquire a servitude for the benefit of the estate they possess, when such is the condition of the contract they make. Art. 759. — One of the owners of property held in common may stipulate for a servitude for the benefit of the property in common, be- cause the partnership, which exists between him and his co-proprietor, authorizes him and makes it his duty to ameliorate the property in common. Nevertheless, the co-proprietors may refuse to avail themselves of this servitude, and allege that the acquisition of the servitude is not an act of mere administration, but an innovation on the estate, which ought not to have been made without their consent. But this exception exists only in their favor and cannot be taken advantage of by him who has granted the servitude, in order to exonerate himself from his engagement. Art. 760. — The usufructuary may acquire a servitude in favor of an estate of which he has the usufruct, if he declare that he acts for the owner, or if he stipulates that the servitude is established in favor of all those who shall possess the estate after him ; but if in the act by which the servitude is acquired, he takes merely the quality of usufruc- tuary, without expressing at the same time that he contracts for^ all those who may succeed him in the possession of the estate, the right terminates with the usufruct, and the owner cannot claim a servitude, which has not attached to the estate subject to the usufruct, or which has only attached for the time of the usufruct. ^P^T. 761. — Continuous and apparent servitudes may be acquired by title or by a possession of ten years, if the parties be present, and twen- ty years if absent. •' •' See 11 L. 854. Art. 762. — Continuous non-apparent servitudes, and interrupted servitudes, whether apparent or not, can be established only by a title. Immemorial possession itself is not sufficient to acquire them. Immemorial possession is that of which no man living has seen the beginning, and the existence of which he has learned from his elders. 5 R. 16 ; 1 A. 407 ; 3 A. 1G6 ; Sco 11 L. 394 ; 14 L. 173. Art. 763. — The use which the owner has intentionally established on a particular part of his property in favor of another part, is equal to a title, with respect to perpetual and apparent servitudes thereon. By this is meant the disposition which the owner of two or more es- tates has made for their respective use. 1 A.407. Art. 764. — Such intention is never presumed till it has been proved that both estates, now divided, have belonged to the same proprietor, and that it is by him that the things have been placed iu the situation from jyhich the servitudes result. no OF SERVITUDES. Art. 765. — If the proprietor of two estates, between which there exists an apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist actively or passively in favor or upon the estate which has been sold. 4L. 312; 5K. IG. Art. 766. — The title by which such servitudes are established, as cannot be acquired by prescription, can be replaced only by a title, by which such servitude is acknowledged by the owner of the estate which owes the servitude, or by a final judgment condemning him to permit the exercise of the servitude. Art. 767. — When a servitude is established, every thing which is necessary to use such servitu^le is supposed to be granted at the same time with the servitude. Thus the servitude of drawing water out of a spring carries necessa- rily with it the right of passage. But the passage, in this case and in all others in which it is permit- ted as an accessory to some or other servitude, must be made in the way the most direct, the shortest and the least inconvenient to the estate subject to the servitude. Section IV. — Of the Rights of the Projjrietor of the Estate to which the Servitude is due. Art. 768. — He to whom a servitude is due, has a right to make all the works necessary to use and preserve the same. 14 L. 161 ; 3 A. 134. Art. 769. — Such works are at his expense, and not at the expense of the owner of the estate which owes the servitude, unless the title by which it is established shows the contrary. Art. 770. — The owner of the estate, to which the servitude is due, has the right to go on the estate which owes the servitude with his work- men, in the place where it is necessary to construct or repair the works necessary for the exercise of the servitude, to deposit there the materials necessary for those works and the rubbish made thereby, under the obli- gation of causing the least possible damage and of removing them as soon as possible. Nevertheless, if in the act establishing the servitude, it is said that the owner to whom it had been granted cannot construct works in order to exercise it, or can only construct them in a certain manner, this agree- ment must be observed. 14 L. 161 ; 3 A. 134. Art. 771. — Even in the cases where the o\vner of the estate which owes the servitude, is bound by the title to make the necessary works for the use and preservation of the servitude, at his own expense, he may always exonerate himself by giving up the estate which owes the servi- tude to the owner of the estate to which it is due. Art. 772. — If the estate for which the servitude has been established comes to be divided, the servitude remains due for each portion, provi ded that no additional burden accrue thereby to the estate which is sub- ject to the servitude. Ill OF SERVITUDES. 1 1 1 Thus, for instance, in case of a right of passage, all the proprietors are bound to exercise that right through the same place. Art. 773. — The proprietor of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient. Thus he cannot change the condition of the premises, nor transfer the exercise of the servitude to a place diifcrcnt from that on which it was assigned in the first instance. Yet tif this primitive assignment has become more burdensome to the proprietor of the estate which owes the servitude, or if lie is thereby prevented from making advantageous repairs on his estate, he may offer to the projjrietor of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due cannot refuse it. Art. 774. — On the other hand, he who has a right of servitude, can use it only according to his title, without being at liberty to make either in the estate which owes the servitude, or in that to which the servitude is due, any alteration by which the condition of the first may be made worse. Art. 775. — If the manner in which the servitude is to be used is uncertain, as if the place necessary for the exercise of the right of pas- sage is not designated in the title, the owner of the estate which owes the servitude, is bound to fix the place where he wishes to be exercised. 1 E. 321 ; 5 A. 5T7. Art. 776. — If the title by which a passage is granted does not des- ignate its breadth, nor the manner in which it is to be used, whether on foot, or horseback, or with carriages, the use, which the person to whom the servitude is granted, previously made of it, will serve to interpi'et the title. If there was no such use made of it before, the probable intention of tlie parties must be considered, and the purpose for which the pas- sage is granted. If these circumstances can afford no light, it must be decided in fa- vour of the land which owes the servitude, and a foot passage must be ^ conceded eiglit feet wide, where it is straight, and ten feet wide where turns. Art. 777. — If the passage be agreed upon, without the time or the hour being fixed, it is necessary to make a distinction ; if the passage be through a place not closed, it may be used at any hour and even in the night ; for at any hour a person may want to pass ; but if it be through a place which is closed for the security of the owner, the right of passage can be exercised only at convenient hours ; for it would be unreasonable that a yard or house should be left open at all hours of the night. Art. 778. — The right of opening lights or of view, granted indefin- itely to him who is about building, gives him the privilege of opening all the windows which may be necessary to light or embellish his house and tlie buildings attached to it, to give to the windows the form and size he may think proper to adopt, because such is presumed to have been the intention of the parties. But after the buildings are all finished, the possession and situation of the ground determine the extent of the servitude, and the owner can neither multiply nor enlarge his windows. 112 OF SERVITUDES. Section V. — How Servitudes arc extinguished. Art. 779. — Servitudes are extinguished : 1. By the destruction of the estate which owes the servitude, or of that to which the servitude is due, or by such a change taking place that the thing subject to the servitude cannot be used ; 2. By prescription resulting from non-usage of the servitude during the time required to produce its extinction ; T L. 52. 3. By confusion ; 4. By the abandonment of that part of the estate which owes the servitude ; 5. By the renunciation of the servitude on the part of him to whom it is due, or by the express or tacit remission of his right ; 6. By the expiration of the time for which the servitude was granted, or by the happening of the dissolving condition attached to the servi- tude ; 7. By the dissolution of the right of him who established the servitude. s Art. 780. — Servitudes are extinguished when the things are in such a situation that they can no longer be used, and when they remain per- petually in such a situation. Art. 781. — If the things are re-established in such a manner that they may be used, the servitudes will only have been suspended, and they resume their effect, unless, from the time they ceased to be used, sufficient time has elapsed for prescription to operate against them. Art. 782. — If a wall in common, or a house subject to a servitude, or to which a servitude is due, is rebuilt after having been destroyed, demolished or thrown down, all the servitudes, active and passive, which existed on this wall or house, continue to exist on the new wall or house, but they cannot be augmented ; provided always that they be rebuilt within such a time that prescription has not operated against them, as is mentioned in the following articles. Art. 783. — If, the house or edifice which has been destroyed, de- molished or thrown down by any accident, belonged to the proprietor to whom the servitude is due, the servitude will be extinguished, if he does not rebuild the house or edifice within the time required for pre- scription, because it depended on him alone, by rebuilding his house, to revive the servitude it enjoyed. Art. 784. — If, on the contrary, it is the house or edifice subject to the servitude, which has been destroyed, demolished or thrown down, the owner cannot, by rebuilding it after the time required for prescrip- tion, impair the servitude to which the house or edifice was previously subject, because he to whom the servitude was due had not the power to compel the other to rebuild the house or edifice thus destroyed. Art. 785. — A right to servitude is extinguished by the non-usage of the same during ten years, if the parties be present, and twenty years, if absent. 1 K. 321. Art. 786. — The time of prescription for non-usage begins, for inter- rupted servitudes, from the day they ceased to be used ; for continuous 113 OF SERVITUDES. US servitudes, from the day any act contrary to the seiTitude has been committed. 1 E. 321. Art. 787. — Acts contrary to the servitude are the destruction of works necessary for its exercise, as the stopping of spouts which carry off rain, or of windows or apertures which are necessary to the exercise of the right of view. Art. 788. — If the owner of the estate to whom the servitude is due, is prevented from using it by any obstacle which he can neither prevent nor remove, the prescription of non-usage does not run against him as long as this obstacle remains. Art. 789. — To pi'eserve the right of servitude, and prevent pre- scription from running against it, it is not necessary that it should be exercised exclusively by the proprietor to whom it is due, or by those who use his rights, or who represent him directly, as the usufructuary, the lessee or tenant, the attorney in fact or agent. It suffices if the servitude has been exercised by workmen employed by the proprietor, his slaves, his friends, or those who come to see him. Art. 790. — The servitude is preserved to the owner of the estate to which it is due, by the use which any one, even a stranger, makes of it, provided it be used as appertaining to the estate. Thus the servitude is preserved to the owner by the use which a possessor in bad faith, who is in possession of the estate to whom it is due, makes of the servitude. But if any one passes over the land of another, considering the way as public, or as belonging to another estate, the owner of the estate to whom the servitude is due, cannot avail himself of the use thus made of the servitude, to protect himself against the prescription which may have been acquired against himself. Art. 791. — Prescription for non-usage does not take place against natural or necessary servitudes, which originate from the situation of places. 1 R. 321. Art. 792. — The mode of servitude is subject to prescription as well as the servitude itself, and in the same manner. By mode of servitude, in this case, is understood the manner of using the servitude, as is prescribed in the title. Art. 793. — If he to whom a servitude is due, enjoys a right more extensive than that which is given him by tlie act establishing the servi- tude, he will be considered as having preserved his right of servitude ; because the less is included in the greater. But he cannot thus prescribe for the surplus, and can be compelled to confine himself to the exercise of the servitude granted by his title, unless it be a continuous or apparent servitude, which ae has acquired by prescription. Art. 794. — If, on the contrary, the owner has enjoyed a right less extensive than is given him by his title, the servitude, whatever be its nature, is reduced to that which is preserved by possession, during the time necessary to establish prescription. 8 114 .OF SERVITUDES. Art. 795. — If the owner has merely enjoyed an accessory right, which was necessary to his right of servitude, he will not be considered as hav- ing used his right of servitude. For example, he who has the right of drawing water from the well of his neighbor, has passed often through the land of the latter, and gone to the well without drawing any water during the time required for prescription, he will have lost his right of drawing water, without acqui- ring that of passage, which was merely accessory to the right of drawing water. Art. 796. — If the owner has used another servitude than that grant- ed to him, without using the latter, he may lose this last for non-usage during the time required for prescription, without acquiring that which he has used, if it be an interrupted or non-apparent servitude. Art. 797. — If the estate in whose favor the servitude is established, belongs to several, and has never been divided, the enjoyment of one bars prescription with respect to all. Art. 798. — If among the co-proprietors there be one against whom prescription cannot run, as for instance a minor, he shall preserve the right of all the others. Art. 799. — When the estate to which the servitude is due, ceases to be undivided, by means of a partition, each of those who were the co-proprietors, only preserves the servitude by the use he makes of it, and the others lose it by non-usage during the time required for pre- scription. If a servitude be due to several persons, but on different days, as the right of drawing water, he who does not exercise his right, loses it, and the estate subject to the servitude becomes free from it, as respects him. Art. 800. — When the prescription of non-usage is opposed to the owner of the estate to whom the servitude is due, it is incumbent on him to prove that he, or some person in his name, has made use of this ser- vitude as appertaining to his estate, during the time necessary to pre- vent the establishment of the prescription. 1 E. 321. Art. 801. — Every servitude is extinguished, when the estate to which it is due, and the estate owing it, are united in the same hands. But it is necessary that the whole of the two estates should belong to the same proprietor ; for if the owner of one estate only acquires the other in part or in common with another person, confusion does not take effect. Art. 802. — If the union of the two estates be made only under a condition, or if it cease by legal eviction ; if the title be thus destroyed either by the happening of the condition or by legal eviction, the servi- tudes revive wh-ich, in the mean time, will have been rather suspended than extinguished. Thus the exercise of redemption, the happening of the condition on which the estate terminates, the eviction from a succession by a nearer heir, the abandonment or relinquishment of an estate on account of mort- gages, will revive all the servitudes active and passive. Art. 803. — Confusion takes place by the simple acceptance of an inheritance, if there be but one heir. 115 OF SERVITUDES. 115 If the heir who has thus accepted an inheritance, disposes of any estate belonging to tlie succession which is subject to any servitude to- wards his estate, without any stipulation for the preservation of his right of servitude, the estate thus alienated, which owed the servitude, remains free from it, in consequence of the confusion which had taken effect while the estate remained in his hands. Art. 804. — But if the heir, under a simple acceptance, sell to a per- son the whole of his rights in the succession he has received, the sale prevents the confusion, and the estate belonging to the succession will continue to have the rights of servitude previously due to it, or be charged with the servitudes imposed on it, in the same manner as if it had not passed through the hands of the heir ; because, in this case, the purchaser is not presumed to have purchased more or less than all the ancestor possessed. Art. 80j. — Confusion docs not take effect if the heir has only a temporary possession of the estate subject to the servitude, or enjoying it for the purpose of delivering it to another person to whom it has been bequeathed, or when his right in it terminates at a certain fixed time. Art. 806. — If the heir has accepted the succession under benefit of inventory, the confusion docs not take effect ; and if the heir is obliged to abandon the succession at the instance of the creditors, the servitudes resume their former state. Art. 807. — The acquets, which the husband and wife make during the marriage, do not become confused with the private property of each ; and if these acquets are sold during the marriage, the servitudes, active and passive, which existed previous to their being acquired by the hus- band and wife, continue to exist, without any stipulation to that effect. Art. 808. — Except in the cases herein mentioned, and similar cases, services extinguished by confusion do not revive, except by a new con- tract ; with the exception of continuous and apparent servitudes, with respect to which the disposition made by the owner of both estates is equivalent to a title. Art. 809. — The renunciation or abandonment of the land extinguishes the servitudes charged on it, of whatever nature they may be, because the owner of the estate to which the servitude is due, is bound to accept the abandonment, which produces in his hand a confusion which puts an end to the servitude. Art. 810. — It is not necessary to produce a discharge of the servi- tude, that the proprietor of the estate which owes it, should abandon the whole estate ; it sufiices, if he abandon the part on which the servitude is exercised. Art. 811. — If a proprietor is bound to support a building or beams of his neighbor on a part of his wall, he may discharge himself from this servitude by abandoning the owner of the estate, to whom the servitude is due, that part of his wall upon which this servitude is exercised. Art. 812. — Servitudes are also extinguished by the renunciation or voluntary release of them by the owner of the estate to which they are due. This renunciation or release may be express or tacit. Art. 813. — The express release must be made in writing, and is con- 116 OF SERVITUDES. fined to what is clearly expressed iu the act containing it, because one is not easily presumed to have renounced his right. Besides, the owner who makes the release, must be capable of dis- posing of immovables ; this release of a servitude being a real alienation. Art. 814. — When the estate to which the servitude is due belongs to several owners, one of them cannot make a release of the servitude so as to discharge the estate owing the servitude, without the consent of his co-proprietors. But the release which he makes will deprive him of the right of personally using the servitude. Art. 815. — The release of the servitude is tacit, when the owner of the estate to which it is due peinnits the owner of the estate to which it is due permits the owner of the estate charged with the servitude, to build on it such works as presuppose the annihilation of the right ; be- cause they prevent the exercise of it, for example, if he should permit the field, through which he has a right to pass, to be closed by a wall. Art. 816. — In order that the tacit release of the servitude be in- ferred from the permission which the owner of the estate to which it is due has given for the erection of works which prevent the exercise of it, it is necessary : 1. That the permission or consent for the erection of these works should be given expressly, verbally, or in writing. From the mere suf- ferance of works contrary to the servitude, the release cannot be pre- sumed, unless it has continued for a time necessary to establish prescrip- tion. 2. That the works thus constructed be of a permanent and solid kind, such as an edifice or walls, and that they present an absolute ob- stacle to every kind of exercise of the servitude. Art. 817. — Servitudes are also extinguished when they have been established for a certain time only, or under a condition that in a certain event they shall cease ; for when the time expires, or the event takes place, the servitude becomes extinguished of right. Art. 818. — Servitudes are in fine extinguished by the destruction of the right of him who established them ; for no one can transmit to another more right than he has himself; from thence it follows, that if any one establish a servitude on an estate iu which he has only a right suspended by a condition, or defeasible at a certain time or in certain cases, or subject to rescission, the servitude becomes extinguished with his right. It is the same, if his title to the estate, charged with the servitude, is annulled by reason of some defect inherent to the act. 117 OF FIXING THE LIMITS OF LANDS. II7 TITLE y. OF FIXING THE LIMITS, AND SURVEYING OF LANDS. Art. 819. — When two estates or lands contiguous, in cities or in the country, have never been separated, or have never had their boundaries determined, or if the bounds, which have been formerly fixed, are no longer to be seen, each of the proprietors of the contiguous estates has a right to compel the other to fix the limits of their respective proper- tics. IT L. 849. Art. 820. — The action of boundary is derived from the same source as the action of partition. No one being bound to hold an estate in common, no one is bound to leave undecided the boundary lines, which separate his estate from that of his neighbor. Art. 821. — The action of boundary, like that of partition, cannot be prescribed against ; as every one is at liberty, at all times, to separate his part from an estate in common, so it is permitted to each proprietor to have ascertained the limits of contiguous estates, to have them fixed, as each has enjoyed his estate separately without having acquired any part of his neighbor's estate by prescription. Art. 822. — By boundai'y is understood, in general, every separation, natural, or artificial, which marks the confines or line of division of two contiguous estates. Trees or hedges may be planted, ditches may be dug, walls or inclosures may be erected, to serve as boundaries. But we most usually understand by boundaries, stones or pieces of wood inserted in the earth on the confines of two estates. See 3 L. 90 ; 4 L. 534 ; 6 L. 543. Art. 823. — The fixing the boundaries takes place not only between two neighboring proprietors, but between a proprietor and several others, when they have contiguous estates, or between several co-proprietors, when a partition of the property in common takes place. Art. 824. — When two estates are separated by a public road or by a watercourse, which serves as a common limit, the action of boundary cannot be sustained in relation to them, unless the road or watercourse has experienced some change in its situation. Art. 825. — The action of boundary may be instituted, not only by the owner, but by any person who possesses as owner, and his neighbor cannot require proof of his right of property. Art. 826. — It may be instituted by the usufructuary, but the deter- mination of the limits will be only provisional, unless the owner has been made a party to the suit ; and in this case tlie owner may require the limits to be fixed anew at the termination of the usufruct. Art. 827. — The lessee lias no right to institute the action of bound- ary, but he may resort to his lessor, and oblige the latter to have the limits of the leased estate ascertained and fixed. 4A.8a 118 OF FIXING THE LIMITS OF LANDS. Art. 828. — The fixing new boundaries, or the investigation of old ones, may be made extra-judicially and by mutual consent, if the parties are of full age. But if one of the parties be a minor, or interdicted, it must be done judicially. 4E.360. Art. 829. — Whether the limits be fixed judicially cr extrajudicially, it must be done by a sworn surveyor of this State, who shall be bound to make a proces-vcrbal of his work in the presence of two witnesses, called for the purpose, who shall sign the proccsverbal with him, or mention shall be made therein of the causes which prevented them from signing. 4 R. 300 ; 4 ^V. 3.3 ; See 3 R. 171. Art. 830. — Whenever any surveyor is called on to fix the limits be- tween adjacent estates, it is his duty to notify in writing the proprietors interested therein to be present at the Avork, if they think proper, and to inform them of the day and hour when he will proceed to fix the limits ; and he is bound to make mention in his j^i'oci^s-vcrbal of the notice he may thus have given, of the names of the parties thus notified, and of the date of the notice ; and the surveyor shall make a record of his proceeding, and of the plans drawn by him, in order that copies may be delivered to the parties who may retjuire them. See 3 R. 171. Art. 831. — If the parties thus notified, their representatives or at- torneys in fact, ajipear at the fixing of the limits, the surveyor appointed for tlie purpose is bound to demand of tliein thoir respective title papers, which they are bound to deliver to him, in good faith, if they have them in their possession, in order that the surveyor may determine, by exa- mining them, in what place to fix the boundarie.-^. If the parties thus notified, or their representatives or attorneys in fact, refuse to deliver their titles, the surveyor shall make mention of their refusal in his prods-vcrbdJ, and of the causes they have alleged, if they have assigned any, for their refusal. Pee 3 R. 171. Art. 832. — The surveyor shall not set up lii.s boundaries, until he shall have finished the whole work, and until then he must mark his lines of separations by pickets stuck in the ground for that purpose. Art. 833. — If before the surveyor has finished the Avork, or set up the boundaries, the parties interested, or any of them, shall make op- position thereto, the surveyor must desist, and refer the parties to the court, to have a decision on their respective rights, after having made mention of the opposition in his 2^>'ocf's-verbaI, and the reason for the same, if any be alleged. Art. 834. — It is forbidden to every proprietor of lands to fix the limits between him and his adjoining neighbors, without giving them notice to be present; and without this formality, every such proceed- ing is null, and will produce no effect against his neighbors, who, be- sides, have their action for damages against him, if they have suffered any injury thereby. Art. 835. — AVhen the limits have been fixed after due notice to the parties, and no opposition being made, the parties do not thereby lose 119 OF FIXING THE LIMITS OF LANDS. 119 tlieir rio'lit of resorting to a court of justice to rectify the operation if they think it for their interest ; but the limits will remain provisionally as fixed, until otherwise determined. Art. 836. — The action of boundaries must be brought before the court, within the jurisdiction of which the land is situated, without reeard to the domicil of the parties. Art. 837. — It is the duty of the judge who has cognizance of suits on the subject of limits, to appoint surveyors to inspect tlie premises in question ; the court, on their report, ought to decide according to the titles of the parties, and the plans which shall be presented to the court. 4 A. 83, 882 ; 5 A. 122 ; See 17 L. 349. Art. 838. — The action of boundary, instituted against several co- proprietors of land in common, continues, notwithstanding they have divided it among themselves, or alienated it, if the jmrtition or aliena- tion is made after the institution of the suit. Art. 839. — In matters of limits, reference must be had to ancient titles, unless it be proved that the bounds have been since changed, or that the land has been increased or diminished by changes caused by successions, by the will of the owner, or by other events. 2 A. 620; See 6 L. 543. AjiT. 840. — When an owner has alienated one of two estates, which belonged to him, and the property of any part of it is contested, the limits assigned to it by the vendor at the time of the sale must be con- sulted. The limits ancientl}^ subsisting between the two estates, must not be regarded, because the designation, which the vendor makes of the metes and bounds, forms new limits between the two estates, or between the parts of them which he has sold. See 6 L. 54.3. Art. 841. — The limits must be fixed according to the respective titles of the parties ; in absence of title, on both sides, possession gov- erns. 2 A. 626 ; See 6 L. 54-3. Art. 842. — When the parties claim under primitive concessions of their lands, or prove their dates and contents, in case their concessions should be lost, if there be less land than is called for in tlie different titles, he who has the oldest concession, takes the quantitj- of land therein mentioned, the other parties having a right only to the rest. ]}ut this article must be understood to except the case in wliich the person having a title of later date, may have acquired by prescription the quantity of land mentioned in his concession. Art. 843. — If tlie parties claim under simple acts of sale, or other acts which can transfer prrtperty, without being supported by any ante- rior concessions, and if they, or the person from whom they acquired their estates, have acquired them from one common proprietor, the preference shall be given to him whose title is of the most ancient date, 120 OF FIXING THE LIMITS OF LANDS. unless an adverse possession, for a time sufficient to establisli jirescrip- tion, has produced a diflPerence in the situation of the parties. 6 N. S. 700 ; 11 L. 1S2 ; 13 L. 334; 17 L. .349 ; See 2 E. 72 ; 3 R. 171. Art. 844. — If, on the contrary, the parties, or those from whom they have acquired, hold titles from different proprietors, the priority of date of one title to another, unless it be accompanied by prescription, gives no right of preference to the person liolding it, and the case must be determined according to the rules prescribed in the following ar tides. Art. 845. — If the titles, exhibited by one of the parties, fix the ex- tent of land which he ought to have, and those exhibited by the other make no mention of the extent, the first takes the quantity of land men- tioned in his title, and the second only takes the excess ; unless the latter establish, by legal proof, or by the possession he has had, the quantity of land to which he is entitled. 12 L. 539; 17 L. 349. Art. 846. — If the titles exhibited do not mention the quantity of land which each person ought to have, or unless it can be established in a legal manner, the limits must be so fixed as to divide the land equally between them. 13 L. 834. Art. 847. — If the titles exhibited call for a greater or less extent of land than the land, which is to be bounded, contains, the limits must be so fixed as to divide proportionally among the parties interested the profit or loss resulting from this state of things. It is understood that the rules prescribed in this and the preceding articles, only take effect in the absence of possession by one or more of the parties, sufficient to establish prescription. 17 L. 349 ; See 7 L. 106. Art. 848. — Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person, whose title is of the latest date, or those under whom he holds, have enjoyed in good and bad faith, uninterrupted possession, during thirty years, of any quantity of land beyond that mentioned in his title, he will be per- mitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess ; for if one cannot prescribe against his own title, he can prescribe beyond his title or for moi'e than it calls for, provided it be by thirty years' possession. 17 L. 349 ; 6 A^ 382 ; See 7 L. lOG ; 12 L. 539. Art. 849. — If the boundaries have been fixed according to a com- mon title, or according to different titles, and the surveyor had com- mitted an error in his measure, it can always be rectified, unless the part of the laud, on which the error was committed, be acquired by an ad- verse possession of ten years, if the parties are present, and twenty years, if absent. 17 L. 349; 2E. 72. 121 OF NEW WORKS. 121 Art. 850. — If any one sells or alienates a piece of land, from one fixed boundary to another fixed boundary, the purchaser takes all the land between such bounds, although it give him a greater quantity of land than is called for in his title, and though the surplus exceed the twentieth part of the quantity mentioned in his title. 13L.151; 2K.461; 12 M. 425; 8N. S. 159; 2L.403; See 6 L. 54^3; 11 L. 182; ICL. 185; Art. 24-1 post Art. 851. — If any one removes or pulls up bounds, which have been fixed, either provisionally or definitively, without being authorized by a decree of the court, he is liable to an action of damages on the part of the owner whose bounds he has removed or torn up, and may be con- demned to place them in the situation they were before. TITLE VI. OF NEW WORKS, THE ERECTION OF WHICH CAN BE STOPPED OR PREVENTED. Art. 852. — By a new work is understood 'every sort of edifice or other work, which is newly commenced on any ground whatever. _ When the ancient form of a work is changed, either by an addition being made to it, or by some part of the ancient work being taken away, it is styled also a new work. Art. 853. — Opposition may be made to every species of new work, from which injury is apprehended, whether the work be in a city or in the country, in places built up or not built up, public or private, con- formably to the rules hereinafter prescribed. See IT L. 889. Art. 854. — Opposition cannot be made to all work indiscriminately, but only to those which come under the denomination of new works, such as the constructing of new buildings, or the demolition or destruction of old works. See 17 L. 3S9. Art. 855. — Opposition cannot be made to those works, which any "one makes for the repairs and support of an old building, if its ancient form be not changed thereby, because, unless this be done, it is not jn-o- perly a new work. Art. 856. — Opposition cannot be made to the works, which any one makes for the repairs or cleaning of his canals, spouts, sewers or aque- ducts, whatever inconvenience or detriment may result therefrom, be- cause it is for the public interest or safety that these things should be repaired and kept clean. Art. 857. — Works which have been formerly built on public places, or in the beds of rivers or navigable streams, or on their banks, and which obstruct and embarrass the use of these places, rivers, streams, or iheir banks, may be destroyed at the expense of those who claim them. 1 22 OF NEW WORKS. at the instance of the corporation of the place, or of any individual of full age residing in the place where they are situated. And the owner of these works cannot prevent their being destroyed under pretext of any prescription or possession, even immemorial, which he may have had of it, if it be proved that at the time these works were constructed, the soil, on which they are built, was public, and has not ceased to be so since. 9 K. 36T. Art. 858. — If the works, formerly constructed on the public soil, consist of houses or other buildings, which cannot be destroyed, without causing signal damage to the owner of them, and if these houses or other buildings merely encroach upon the public way, without preventing its use, they shall be permitted to remain ; but the owner shall be bound, when he rebuilds them, to relinquish that part of the soil or of the pub- lic way, upon which they formerly stood. 4 A. 73. Art. 859. — The corporations of cities, towns and other places, may construct on the public places, in the beds of rivers and on their banks, all buildings and other works which may be necessary for public utility, for the mooring of vessels and the discharge of their cargoes, within the extent of the respective limits. 2 A. 7T0 '; 4 A. 73 ; See IS L. 278. Art. 860. — If any one commence on his own land a building or other new work, which may be of detriment to his neighbor or any other indi- vidual, the latter may, in the presence of witnesses, forbid him to con- tinue the work. Art. 861. — If the person, thus forbidden to continue his works, will not suspend them, the person making the opposition, may apply to the judge in order to have them destroyed at the expense of the person ma- king them, on alleging the injury and detriment the works may cause to him. Art. 862. — The plaintiif, who sues in opposition, may obtain from the judge a mandate commanding the defendant to suspend his works until further order, if he affirm under oath, at the foot of his petition, that he has forbidden the defendant to continue his works, and that the construction may cause him injury or damage, and if he give good and sufficient security to the defendant, in such sum as shall be fixed by the judge, to answer for the damage caused to the defendant, in case the opposition should not be well founded. Art. 863. — Though the judge may have commanded the defendant to suspend his works, he may, in the course of the suit, authorize him to continue them, if he think their continuance will not cause an irre- parable injury to the plaintiflF, but the defendant will be bound to give good and sufficient security, in such sum as shall be fixed by the judge, to pay any damages, which may be caused to the plaintiff" by their being continued, and that he will place every thing in its former situation, if he should be finally condemned to destroy his works. Art. 864. — If, on the trial of the case, it be determined that the new works can cause injury or detriment to the person who complains of them, ani who has made opposition to their erection, the judge shall 123 OF NEW WORKS. 123 order them to be destroyed at the expense of him who has caused them to be constructed, how far soever they may be advanced, even if they should be finished, under the authority given and the security furnished according to the terms of the preceding article, unless the works can be so changed as to cause no detriment to the complainant. Art. 865. — If, after the commencement of a suit for the destruction of new works, the defendant shall sell the land upon which these works stand, the judgment which orders the destruction of them, shall be exe- cuted against the purchaser, though he may have been ignorant of the prohibition made to his vendor to discontinue them, saving always his recourse for indemnity against his vendor. BOOK III, OF THE DIFFERENT MODES OF ACQUIRING TH: PROPERTY OF THINGS. PRELIMINARY TITLE. GENERAL DISPOSITIONS, Art. 866. — The property of things or goods is acquired by inherit- ance either legal or testamentary, by the eflfeet of obligations, and by the operation of law. Seo 6 L. 231. TITLE L OF SUCCESSIONS. CHAPTER I. OF THE DIFFERENT SORTS OF SUCCESSIONS AND HEIRS. Art. 867.— Succession is the transmission of the rights and obliga- tions of the deceased to the heirs. 12 E. 105; 2 A. 405. Art. 868. — Succession signifies also the estate, rights and charges which a person leaves after his death, whether the property exceeds the charges, or the charges exceed the property, or whether he has only left charges without any property. 12 E. 105 ; 1 A. 85. Art. 869. — The succession not only includes the rights and obliga- tions of the deceased, as they exist at the time of his death, but all that has accrued thereto since the opening of the succession, as also the new rsharges to which it becomes subject. 12 E. 105; See 11 L. 1 ; 13 Peters, 409. Art. 870. — Finally, succession signifies also that right by which 125 ' OF SUCCESSIONS. 125 the heir can take possession of the estate of the deceased, such as it may be. 12 R. 105 Art. 871. — There are three sorts of successions, to wit: Testamentary successions ; Legal successions ; And, irregular successions. 2 A. 98. Art. 872. — Testamentary succession is that which results from the institution of heir, contained in a testament executed in the form pre- scribed by law. This sort of succession is treated of under the title of donations inter vivos and mortis causa. Art. 873. — Legal succession is that which the law has established in favor of the nearest relation of the deceased. Art. 874. — Irregular succession is that which is established by law in favor of certain persons, or of the State in default of heirs cither legal or instituted by testament. These two last sorts of successions are the objects of the present title. Art. 875. — There are three kinds of heirs which correspond with the three species of successions described in the preceding articles, to wit: Testamentary or instituted heirs ; Legal heirs, or heirs of the blood ; And, irregular heirs. Art. 876. — lie who is the nearest relation to the deceased, capable of inheriting, is presumed to be heir, and is called presumptive heir. This quality is given to him before the decease of the person from whom he is to inherit, as well as after the opening of the succession, until he has accepted or renounced it. Art. 877. — Heirs are divided into two classes, according to the manner in which they accept successions left to them, to wit : uncondi- tional and beneficiary heirs. Art. 878. — Unconditional heirs are those who inherit without any reservation, or without making an inventory, whether their acceptance be express or tacit. Art. 879. — Beneficiary heirs are those who have accepted the suc- cession under the benefit of an inventory regularly made. Art. 880. — The person who has become the universal successor of the deceased, who is possessed of all his property and rights, and who is subject to the charges for which the estate is responsible, is called the heir, no matter whether he be such by law, by the institution of a testament, or otherwise. Art. 881. — The law does not take into consideration the origin nor the nature of the property in order to regulate the succession. 1 N. 8.665; 17 L. 812. 126 OF SUCCESSIONS. CHAPTER II. OF LEGAL SUCCESSIONS. Section I. — General Rules- Art. 882. — If tliere is no testament or institution of lieir, or if the institution is null or without effect, the succession is then open in favor of the legitimate heirs, by the mere operation of the law. 12 E. 5S4. Art. 883. — There are three classes of legal heirs, to wit : The children and other lawful descendants ; . , The fathers and mothers and other lawful ascendants ; And the collateral kindred. 2 A. 98. Art. 884. — The nearest relation in the descending, ascending or collateral line, conformable to the rules hereafter established, is called to the legal succession. • Art. 885. — The propinquity of consanguinity is established by the number of generations, and each generation is called a degree. 6 A. 232. Art. 886. — The' series of degrees forms the line; the series of de- grees between persons who descend from one another, is called direct or lineal consanguinity, and the series of degrees between persons who descend from one another, but spring from a common ancestor, is called the collateral line or collateral consanguinity. The direct line is divided into a direct line descending and direct line ascending : The first is that which connects the ancestor with those who descend from him ; the second is that which connects a person with those from whom he descends. See 6 L. 231. Art. 887. — In the direct line there are as many degrees as there are generations. Thus the son is with regard to the father, in the first degree, the grandson in the second, and vice versa with regard to the father and grandfather towards the sons and grandsons. See 2 A. 405. Art. 888. — In the collateral line the degrees are counted by the generations from one of the relations up to the common ancestor exclu- sively, and from the common ancestor to the other relations. Thus brothers are related in the second degree ; uncle and nephew, in the third degree ; cousins german in the fourth, and so on. Art. 889. — In matter of legal successions, no difference of sex, and no right of primogeniture are known ; but they are regulated by the most perfect equality. Section II. — Of Representation. Art. 890. — Representation is a fiction of the law, the effect of which is to put the representative in the place, degree, and rights of the person represented. 3 A, 1B6. 127 OP SUCCESSIONS. 127 Art. 891. — Representation takes ^ilsiCG ad inJlnituM in the direct descending line. It is admitted in all cases, whether the children of the deceased concur with the descendants of a predeceased child, or whether, all the children having died before him, the descendants of the children be between them in equal or inequal degrees. Art. 892. — Representation does not take place in favor of the as- cendants, the nearest relation in degree alwaj-s excluding those of a degree superior or more remote. Art. 893- — In the collateral line, representation is admitted in favor of the children and descendants of the brothers and sisters of the deceased, whether they come to the succession in concurrence with the uncles and aunts, or whether, the brothers and sisters of the deceased having died, the succession devolves on their descendants in equal or unequal degrees. See 7 N. S. 335. Art. 894. — In all cases in which representation is admitted, the partition is made by roots ; if one root has produced several branches, the sub-division is also made by roots in each branch, and the members of the branch take between them by heads. Art. 895. — Persons deceased only can be represented ;i persons alive cannot. Art. 896. — One who has renounped the succession of another, may still enjoy the right of representation \jith respect to that other. Thus it is necessary that the children who succeed by representation, should have been heirs of their father or mother. Although they should have renounced their succession, they are nevertheless competent to represent them in the succession of their grandfather or other ascend- ants. The word "not'" should be Inseo'ted between the words "«s" and "necessary" in the second para- graph of this article. See Frcncli text. Art. 897. — When a person has been disinherited by his father or mother, or excluded from his succession for unworthiness, his children cannot represent him in the succession of their grandfather or other ascendants, if he is alive at the time of the opening of the succession, but they can represent him if he died before. Section III. — Of Successions falling to Descendants. • Art. 898. — Legitimate children or their descendants inherit from their father and mother, grandfathers or other ascendants, without dis- tinction of sex or primogeniture, and though they may be born from dif- ferent marriages. They inherit in equal portions and by heads, when they are in the same degree, and inherit by their own right ; they inherit by roots, when all or part of them inherit by representation. Stat. 25th March, 1844, p. 99.—^ 1. In all cases hereafter, when cither husband or wife shall die, leaving no ascendants or descend- ants, and without having disposed by last will and testament, of his or her share in the community property, such sliaro shall be held by the sur- vivor in usufruct duriug his or her natural life. 128 OF SUCCESSIONS. ^ 2. In all cases when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have dis posed by last will and testament, of his or her share in the community property, the survivor shall hold in usi(fnict, during his or her natural life, so much of the share of the deceased in said community property as may be inherited by such issue: Provided^ however, that such iisufnict shall cease whenever the survivor shall enter into a second marriage. « 3A. 4S9; 4A. 3S9. Section IV. — Of Successions falling to Ascendants. Art. 899. — If any one dies leaving no descendants, but a father and mother, and brothers and sisters, or descendants of these last, the suc- cession is divided into two equal portions, one of which goes to the father and mother, who divide it equally between them, the other to the broth- ers and sisters of the deceased, or their descendants, as is prescribed in the following section : 7 N. S. 414; See T N. S. 665. Art. 000. — If the father or mother of the person who has died with- out issue, has died before him, the portion which would have been inhe- rited by such deceased parent, according to the terms of the preceding article, will go to the brothers and sisters of the deceased, or to their descendants, in the manner directed by the following section. 7N. S.414. Art. 901. — If the deceased has left neither descendants nor brother nor sister, nor descendants from them, nor father nor mother, but only other ascendants, these ascendants inherit the succession to the exclusion of all the collaterals, in conformity with the dispositions of the articles which follow. Art. 902. — If there are ascendants in the paternal and maternal lines in the same degree, the estate is divided into two equal shares, one of which goes to the ascendants on the paternal, and the other to the ascendants on the maternal side, whether the number of ascendants, on each side, be equal or not. In this case, the ascendants, in each line, inherit by heads. Art. 903. — But if there is in the nearest degree but one ascendant in the two lines, such ascendant excludes all other ascendants of a more remote degree, and alone takes the succession. Art. 904. — Ascendants to the exclusion of all others, inherit tl^e real estate and slaves given by them to their children or their descend- ants of a more remote degree, when these objects arc found in the suc- cession. If these objects have been alienated, and the price is yet due in whole or in part, the ascendants have the right to receive the price. They also succeed to the right of reversion on the happening of any event which the child or descendants may have inserted, as a condition in their favor, for disposing of those objects. 1TL.40T;19L. 265; 3 L. 19. The words " loho die icifhout posterity^'' should bo inserted after the word " deseendant%" iu the 1st paragraph of this Article. They are to be found in the original in the office of the Secretary of State, and were omitted by mistake by the publisher of the Code. 129 OF SUCCESSIONS. 129 Art. 905. — Ascendants have also tlie right to take from the succes- sion of their child or descendant who die without issue, the dowry they may have settled in money upon him. Sec 17 L. 40T. Art. 906. — Ascendants inheriting the things mentioned in the pre- ceding articles, which they have given their children or descendants who die without issue, take them subject to all the mortgages which the donee may have imposed on them during his life. Also ascendants exercising the right of reversion are bound to con- tribute to the payment of the debts of the succession, in proportion to the value of the objects given. Sec IT L. 407. Section V. — Of the Succession of Collaterals. Art. 907. — If a person dies, leaving no descendants, and his father and mother survive, his brothers and sisters, or their descendants, only inherit half of his succession. If the father or the mother only survive, the brothers and sisters, or their descendants, inherit three-fourths of his succession. Art. 908. — If a person dies, leaving no descendants nor father nor mother, his brothers and sisters, or their descendants, inherit the whole succession to the exclusion of the ascendants and other collaterals. See amendment to Art. 898; 15 L. 527, 562. Art. 909. — The partition of the half the three-fourths or the whole of a succession fiilling to brothers and sisters, as mentioned in the two preceding articles, is made in equal portions, if they are all of the same marriage : if they are of different marriages, the succession is equally di- vided between the paternal and maternal lines of the deceased ; the ger aian brothers and sisters take a part in the two lines, the paternal and maternal brothers and sisters, each in their respective lines only ; if there arc brothers and sisters on one side only, they inherit the whole succes- sion to the exclusion of all other relations of the other line. In all these cases, the brothers and sisters of the deceased, or their descendants, inherit in their own right or by representation, as is regu- lated in the section which treats of representation. See 14 L. 22. Art. 910. — When the deceaged has died without descendants, leaving neither brothers nor sisters, nor descendants from them, nor father nor mother nor ascendants in paternal or maternal lines, his suc- cession passes to his collateral relations. Among the collateral relations, he who is the nearest in degree, excludes all the others, and if there are several in the f^nme degree, they partake equally and by heads, according to their number. 6 A. 232. 130 OF SUCCESSIONS. CHAPTER III. OF IRREGULAR SUCCESSIONS. Art. 911. — When the deceased has left neither lawful descendants, nor lawful ascendants, nor collateral relations, the law calls to his inheritance either the surviving husband or wife, or his or her natural children, or the State in the manner and order hereafter directed. 12 E. 584; 2 A. 98, 268; See 5 E. 9. Art. 912. — Natural children are called to the legal succession of their natural mother, when they have been duly acknowledged by her, if she has left no lawful children or descendants, to the exclusion of her father and mother and other ascendants, or collaterals of lawful kindred. In case the natural mother has lawful children or descendants, the rights of the natural children are reduced to a moderate alimony, which is determined by the rules established in the title oi father and child. Art. 913. — Natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the State. In all other cases, they can only bring an action against their natural father or his heirs for alimony, the amount of which shall be determined as is directed in the title oi father and child. 3 E. 441 ; 2 A. 98 ; 6 A. 156, 160 ; See 6 L. 642. Art. 914. — Bastard, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above mentioned, the law allowing them nothing more than a mere alimony. 3 E. 441 ; 6 A. 160. Art. 915. — The law does not grant any right of inheritance to natural children to the estate of the legitimate relations of their father or mother. Art. 916. — The estate of a natural child deceased without poste- rity, belongs to the father or mother who has acknowledged him, or in equal portions to the father and mother, when he has been acknowledged by both of them. C L. 5C1 ; 6 A. 156 ; See 4 M. 265 ; 11 L. 128 ; ante, Art. 221. Art. 917. — If the father and mother of the natural child died before him, the estate of such natural child shall pass to his natural brothers and sisters, or to their descendants. 6 L. 645, 561 ; 5 E. 9; 2 A. 98 ; See 12 E. 584. Art. 918. — If a married man has left no lawful descendants nor ascendants, nor any collateral relations, but a surviving wife not sepa- rated from bed and board from him, the wife shall inherit from him to the exclusion of any natural child or children duly acknowledged. If, on the contrary, it is the wife who died without leaving any law- ful descendants, ascendants or collateral relations, her surviving hus- band not separated from bed and board from her, shall not inherit from her, except in case she should leave no natural child or children by her duly acknowledged. 6 L. 642 ; 1 A. 181 ; 2 A. 98, 268. Art. 919. — Children called to the sviccession of their natural 131 OF SUCCESSIONS. 131 father or mother, in the case mentioned in the preceding articles, are permitted to take possession of the succession, which has fallen to them, only by the order of the judge of the parish in which the succession is opened. 6 L. 560. Art. 920. — If the succession be that of the natural mother deceased without legitimate children, the putting into possession of the natural children shall not be pronounced without calling the relations of the deceased, who would have inherited in the default of the natural chil- dren if they are present or represented in the State, or without appoint- ing a person to defend them, if they are absent. Art. 921.— If the succession be that of the natural father, the natural children by him acknowledged cannot be put into possession of the succession which they claim, until a faithful inventory has been made of the same by a notary appointed for that purpose by the judge, in the presence of a person appointed to defend the interest of The absent heirs of the deceased, and on giving good and sufficient security as is prescribed in the following article. ' See 14 L. 542. Art. 922. — The security to be furnished by natural children put into possession of the effects of the .succession of their father, shall be two- thirds of the amount of the inventory made thereof, and this security shall be given to insure the restitution of such portion of these effects, which they may be adjudged to restore, in case the legitimate heirs of' the father should present themselves within three years from the put- ting into possession, after which time this security shall be discharged. Art. 923. — In defect of lawful relations, or of a surviving husband or wife, or acknowledged natural children, tlie succession belongs to the State. 6 L. 645 ; 5 R. 9 ; 12 R. 584; 2 A. 9S. Art. 924. — The surviving husband or wife called to the succession of the other who is deceased, must cause the seals to be fixed on the effects thereof, and be authorized to take possession of the same by the judge of the place in which the succession is opened, after having caused a true and faithful inventory to be made by a notary duly authorized to that_ effect by the judge, in the presence of a person appointed to defend the interest of the absent heirs of tlie deceased, in case there are any, and after having given good and sufficient security, as prescribed in the following article. 1 A. 181. Art. 925. — The security to be given by the surviving husband or wife who shall demand to be put into possession of the effects of the deceased husband or wife, is to be of the estimated value of these effects, to the end of securing the restitution of the estate, in case any heir should come forward within the space of three years, after his or her having been put in possession, which term being expired, the secu- rity shall remain discharged from his obligation. Art. 92G. — During the three years that the security furnished by the surviving husband or wife, or natural children put into possession of the succession of their father, continues, they cannot in any manner alienate the real estate by them thus possessed, nor sell the slaves, uu- 132 OF SUCCESSIONS. less it be under the authority of the court, at public auction, and in cases which their alienation is deemed necessary. Art. 927 — The surviving husband or wife and natural children, who shall fail to fulfil any of the formalities or obligation prescribed in the jireceding articles, shall be liable to damages towards the heir, if any should be incurred. CHAPTER IV. IN WHAT MANNER SUCCESSIONS ARE OPENED. Art. 928. — The succession, either testamentary or legal, or irregu- lar, becomes open by death or by presumption of death caused by long absence, in the cases established by law. 6 N. S. 196. Art. 929. — The place of the opening of successions is fixed as fol- lows. In the parish where the deceased resided, if he had a fixed domicil or residence in this State. In the parish where the deceased owned real estate, if he had neither domicil nor residence in this State, or in the parish in which it appears by the inventory his principal effects are, if he have effects in different parishes. In the parish in which the deceased has died, if he had no fixed resi- dence, nor any immovable effects within this State, at the time of his death. 13 L. 3T5 ; 11 E. 6T ; 2 L. 2T0 ; See 16 L. 11 ; 7 N. S. 51. Art. 930. — If several persons respectively entitled to inherit from one another, happen to perish in the same event, such as a wreck, a battle, or a conflagration, without any possibility of ascertaining who died first, the presumption of survivorship is determined by the circum- stances of the fact. Art. 931. — In defect of circumstances of the fact, the determination must be guided by the probabilities resulting from the strength, age, and difference of sex, according to the following rules. Art. 932. — If those who have perished together were under the age of fifteen years, the eldest shall be presumed to have survived. If both were above the age of sixty years, the youngest shall be pre- sumed to have survived. If some were under fifteen years, and some above sixty, the first shall be presumed to have survived. Art. 933. — If those who have perished together, were above the age of fifteen years and under sixty, the male must be presumed to have sur- vived, where there was an equality of age, or a difference of less tlian one year. If they were of the same sex, the presumption of survivorship, by which the succession becomes open in the order of nature, must be ad- mitted, thus the younger must be presumed to have survived the elder. Art. 934. — A succession is acquired by the lawful heir, who is called 133 OF SUCCESSIONS. 133 by law to tlie inheritance, immediately after the death of the deceased person to whom he succeeds. This rule refers as well to testamentary heirs as to instituted heirs and universal legatees, but not to particular legatees. 9 L. 146; 15L. 52T; TK. 183; 2 A. 339; See 12 K. 253 ; 4 A. 571 ; 5 A. 113 ; 15 L. 5C2. Art. 935. — The right mentioned in the preceding article, is acquired hy the heir by the operation of the law alone, before he has taken any step to put himself iu possession, or has expressed any will to accept it. Thus children, idiots, those who are ignorant of the death of the de- ceased, are not the less considered as being seized of the succession, though they be merely seized of right and not in fact. 9 L. 14G ; 15 L. 52T ; 7 R. 183 ; 2 A. 339 ; See 15 L. 562. Art. 936. — The heir being considered seized of the succession from the moment of its being opened, tlie right of possession, which the de- ceased had, continues iu the person of the heir, as if there had been no interruption, and independent of the fact of possession. 5 A. 113 ; 2 A. 339 ; 9 L. 146 ; 15 L. 527 ; 7 R. 173 ; 4 A. 571. Art. 937. — The right of possession, which the deceased had, being continued in the person of his heir, it results that this possession is transmitted to the heir with all its defects, as well as all its advantages, the change in the proprietor producing no alteration in the nature of the possession. Thus the extent of the rights of the deceased regulate those of the heir, who succeeds to all his rights which can be transmitted, that is, to all those which arc not, like usufruct, attached to the person of the de- ceased. Art. 938. — The heir being considered as having succeeded to the deceased from the instant of his death, the first effect of this right is that the heir transmits the succession to his own heirs, with the right of ac- cepting or renouncing, although he himself have not accepted it, and even in case he was ignorant that the succession was opened in his favor. 2 L. 299 ; See Art. 936 and references. Art. 939. — Tlie second effect of this right is to authorize the heii to institute all the actions, even possessory ones, which the deceased had a right to institute, and to prosecute those already commenced. For the heir, in every thing, represents the deceased, and is of full right in his place as well for his rights as his obligations. See 2 A. 405 : Art. 936. Art. 940. — Though the succession be acquired by the heir from the moment of the death of the deceased, his right is in suspense, until he decide whether he accepts or rejects it. If the heir accept, he is considered as having succeeded to the de- ceased from the moment of his death ; if he rejects it, he is considered as never having received it. 2 A. 406 ; 4 A. 571 ; 5 A. 113 ; 8 L. 321. Art. 941. — The lieir, who accepts, is considered as having succeeded to the deceased from the moment of his death, not only for the part of 134 OF SUCCESSIONS. the succession belonging to liim in his own right, but for the parts ac- cruing to him by the renunciation of his co-heirs in the succession of the deceased. Art. 942. — When all the heirs in the nearest degree renounce the succession, which is accepted by those in the next degree, these last are considered as having succeeded directly and immediately to the rights and eflfects of the succession from the moment of the death of the de- ceased. Therefore the heirs, thus succeeding by the renunciation of relations nearer in degree, transmit the succession to their own heirs, if they die before having accepted it, in the same manner as if they had succeeded in the first degree to the deceased. Art. 943. — Natural children and the surviving husband or wife, be- fore being put into possession of the estate left to them, are not con- sidered as having succeeded to the deceased from the instant of his death ; but they do not the less transmit their rights to their heirs, if they die before having made their demand to be put into possession. The reason is, that this sort of heirs having only a right of action to cause themselves to be put into possession of successions thus falling to them, this right and this action form a part of the succession, which they transmit to their heirs. See 4 L. 267. CHAPTER V. OF THE INCAPACITY AND UNWORTHINESS OF HEIRS. Art. 944. — The incapacity of heirs is the absence of those qualities required in order to inherit at the moment the succession is opened. He who wants these qualities at this time cannot be the heir. It is at the moment of the opening of the succession that the capacity or incapacity of the heir, who presents himself to claim an intestate suqcession, is considered. 6L. 560; ITL. 46. Art. 945. — All free persons, even minors, lunatics, persons of insane mind and the like, may transmit their estates ab intestato and inherit from others. Slaves alone are incapable of either. 17 L. 312 ; 8 M. 161 ; See 12 R. 585. Art. 946. — The incapacity of heirs is not presumed. He who alleges it must prove it. 17 L. 46 ; See 12 E. 585. Art. 947. — In order to be able to inherit, the heir must exist at the moment the succession becomes open. 17 L. 46. Art. 948. — The child in its mother's womb is considered as bom for all purposes of its own interest ; it takes all successions opened in its favor since its conception, provided it be capable of succeeding at the moment of its birth. And the child legitimated by a marriage posterior to its conception, 135 OF SUCC-i^SSION-S. 135 only takes those successions which are opened since the marriage of the father and mother. IT L. 46. Art. 949. — Nevertheless, if the child conceived is reputed born, it is only in the hope of its birth ; it is necessary then that the child be born alive, for it cannot be said those who are born dead have ever in- herited. ITL. 46. Art 950. — When the child is born alive, though it may have been extracted by force from its mother's womb, and may have lived but an instant, provided the fact of its living be ascertained, it inherits the successions opened in its favor since its conception, and transmits them accordingly. See 5 M. 93. Art. 951. — There are two things to be proved in order to vest the child with the right of inheriting ; one, that the child be conceived at the opening of the succession ; the other, that the child be born alive. See 5 M. 93. Art. 952. — In order to ascertain if the child has been conceived in marriage, and can inherit from the husband deceased, after its concep- tion, reference must be had to the rules concerning the filiation of legi- timate children established in the title of father and cltild. Art. 953. — In all cases in which the husband cannot, by law, contest the legitimacy of the child, born before the hundred and eightieth day of marriage, he will have a right to the succession of this child, and to those successions which fall to the child, in the same manner as if the child had been regularly legitimated. Art. 954. — If the mother marry again within two months after the death of her husband, and a child be born five mouths after the second marriage, if the child be born capable of living, it is considered the issue of the first marriage, and is admitted to the succession of the first hus- band. Art. 955. — In the calculation of the number of months necessary for a child to be considered as born capable of living, thirty days are counted for each month, and the day begun is counted for a whole day, because it is for the interest of the child. Art. 956. — Though in general it is incumbent on those who allege incapacity to inherit to prove it, nevertheless, those who claim rights under the child, on account of its having survived, are bound to prove that it was conceived at the time the succession was opened, and that it came into the world alive. Art. 957. — With regard to the proofs necessary to establish the existence of the child at the moment of its birth, it must not be deter- mined that it was born alive by the simple palpitation of its members, but by its respiration, or by other signs which demonstrate its exist- ence. Art 958. — They are called unworthy in matters of succession, who, by the failure in sonu duty towards a person, have not deserved to in- herit from him, and aie in consequence deprived of his succession. Art. 959. — There is this difierence between being unwortliy and in- capable of inheriting, that he who is declared incapable of inheriting, has never been heir, whilst he who is declared unworthy, is not the less 136 OF SUCCESSIONS. heir on that account, if he has the other qualities required by law to in- herit. Thus a person unworthy of inheriting remains seized of the suc- cession, until he is deprived of it by a judgment, which declares him di- vested of it for cause of unworthiuess. Art. 960. — Persons unworthy of inheriting, and, as such, depi'ived of the successions to which they are called, are the following : 1. Those who are convicted of having killed, or attemjjted to kill the deceased ; and in this respect they will not be the less unworthy though they may have been pardoned after their conviction; 2. Those who have brought against the deceased some accusation found calumnious, which tended to subject the deceased to an infamous or capital punishment ; 3. Those who, being apprised of the murder of the deceased, have not taken measures to bring the murderer to justice. Art. 961. — The unworthiuess is never incurred by the act itself; it must be pronounced by the court in a suit instituted against the heir accused of unworthiuess, after he has been duly cited. Art. 962. — Not denouncing the murder of the deceased shall not be opposed as a cause of unworthiuess in the heir, if such heir is the hus- band or wife of the murderer, or his relation in the ascending, descend- ing, or collateral line, down to the third degree inclusively. Art. 963. — If the heir be declared unworthy of inheriting by a de- finitive judgment, he shall be condemned to deliver to the relations suc- ceeding on his default, or those who have succeeded jointly with him, not only the effects of the succession of which he has had the use since its opening, but all the fruits,' revenues, and interest he has derived from such effects, since the opening of the succession. Art. 964. — The heir being legally seized of the succession, until a definitive judgment be pronounced declaring that he is unworthy, and that he be divested of the succession, all sales Avhich he may have made of the property of the succession are valid, provided they have been made without fraud on the part of the purchasers. The sales are also valid, though they may have been made since the institution of the suit to determine the unworthiuess of the heir, if the purchasers had not and could not have been informed of its being insti- tuted. But in all cases the heir, thus divested of the succession, shall be condemned to restore the price of these sales, with interest from the day of the demand, and the relations who succeed on his default, after his destitution is pronounced, shall alone have the right to exact and re- ceive the sums remaining due on the price of these sales, from the pur- CiiciSGrs See 6 M. 200 ; 6 N. S. 432 ; 1 L. 312 ; 2 L. 461. Art. 965. — Mortgages stipulated without fraud by the heir who is afterwards divested for cause of unworthiuess, also remain in force in favor of the parties with whom they have been contracted, reserving to the person succeeding to the inheritance, his recourse against the unwor- thy heir. Art. 966. — The destitution pronounced against the heir, revives in his favor all the rights and actions which he had against the succession, and which had been for a time extinguished by confusion. 137 OF SUCCESSIOiS^S. 1 37 So, in case he Lad paid any creditors of the succession, he shall be reimbursed, and those who have not been paid, have no right of action against him ; the rights and actions of the succession against the heir, who is divested for cause of unworthiness, are also revived. _ Art. 967. — The children of the person declared unworthy to succeed, being admitted to the succession ab inlcstato in their own name and with- out the aid of the representation, are not excluded by the fault of their father, but the father cannot claim, in any case, upon the property of that succession, the usufruct which the law grants him in certain cases. _ Art. 968. — The exclusion, either for cause of incapacity or unwor- thiness, shall not be sued for by others than the relations who are called to the succession in default of the unworthy heir, or in concurrence with him; and this kind of suit shall be determined in the same manner as other civil actions. Art. 969. — Suits to establisli tlie unworthiness of heirs cannot be sustained, if there has been a reconciliation or pardon on the part of him to whom the injury was done. If therefore a father has full knowledge of an injury done to him by one of his cliildren, and died witliout disinheriting "him, tliough he has sufficient time to make his will since he has had this knowledge, he will be considered as having forgiven the injury, and the child cannot be deprived of the succession of his father on account of unworthiness. CHAPTER VL IN WHAT MANNER SUCCESSIONS ARE ACCEPTED, AND HOW THEY ARE RENOUNCED. Section I. — Of the Accrptance of Successions. Art. 970, — No one can be compelled to accept a succession, in what- ever manner it may have fallen to him, whether by testament or the operation of law. He may therefore accept or renounce it. Stat. I6th March, 1848, p. 84.— Henceforth it shall not be neces- sary for minor heirs to make any formal acceptance of a succession that may fall to them, but that such acceptance shall be considered as made for them with benefit of inventory, by operation of law, and shall in all respects have the full force and eftcct of a formal acceptance. See 9 L. 135. Art. 971. — All the rules relating to the acceptance, renunciation or partition of successions, the collation of goods and payment of debts, contained in this title, are applicable to testamentary as well as to intes- tate successions IS L. 394. Art. 972. — ^To be able to accept a succession, it is necessary that the succession should be open by the death of the person who is to be suc- ceeded. 138 OF SUCCESSIONS. If, therefore, on the false report of the death of a person, his relation, who is to inherit from him, assumes the quality of his heir, and is put into possession of his eifects, these acts do not render his relation his heir, even after his death, unless, since his death, his relation has con- tinued to act as his heir. Art. 973. — A person cannot accept a succession before it has fallen to him. Thus, a relation to the deceased in the second degree can neither ac- cept nor renounce the succession, until he who is related in the first de- gree has expressed his intention on the subject. And in testamentary successions, the heir ab intestato can neither accept nor renounce, until the instituted heir has decided to accept or renounce the succession. Art. 974. — It is not sufl&cient that the succession be fallen, it is also necessary, for the validity of the acceptance, that the heir know in a cer- tain manner that it is opened or fallen to him. Thus he who is ignorant of the death of the deceased, though the succession be really opened, can neither accept nor renounce it. Art. 975. — If the heir ab intestato accepts the succession, under the opinion that there is no will, his acceptance is null, if a will be discover- ed, of the existence of which- he was ignorant. Art. 976. — He who accepts ought to know under what title the suc- cession is left to him, so that if the instituted heir accepts the succession as coming to him ab intestato, the act is null. Art. 977. — It is sufficient to establish the validity of the acceptance, that the heir knows that the succession is opened, and that he is called to it. It is not necessary that he should know what portion of it is left to him. It is of no moment, if he be mistaken as to the degree of relation- ship which he bears to the deceased, and which gives him the right to inherit from him ; though it may affect the amount of the portion coming to him, his acceptance is not the less valid on that account since he is an heir. Art. 978. — The acceptance or rejection made by the heir, before the succession is opened or left, is absolutely null and can produce no effect ; but this does not prevent the heir who has thus accepted, from accepting or rejecting validly the succession when his right is complete. Art. 979. — The heir who is instituted under a condition cannot ac- cept nor renounce the succession, before the condition has happened, or while he remains in ignorance of the condition having happened. It is the same, if he be ignorant of the institution which is made in his favor. Art. 980. — He who has the power of accepting the entire succession, cannot divide and only accept a part. Art. 981. — The effect of the acceptance goes back to the day of the opening of the succession. 12 E. 243 ; 5 A. 113. Art. 982. — -The simple acceptance may be either express or tacit. It is express, when the heir assumes the quality of heir in an uuqual- 139 OF SUCCESSIONS. 139 ified manner, in some authentic or private instrument, or in some judi- cial proceeding. It is tacit, when some act is done by the heir, which necessarily supposes his intention to accept, and which he would have no right to do but in his quality of heir. 1 A. 2S0: 5 A. 113; C A. 13; See5 K. 473; L. IT ; 10 L. 41)9; 1 N. S. 202; 2 N. S. 432; 2 A. 405; Arts. 439, 1006. Art. 983. — By the word act, used in the preceding article, is under- stood any writing made with the intention of obliging himself or con- tracting as heir, and not a simple letter or note, still less a verbal declaration, in which the person who is called to the succession may have styled himself the heir. 2 N. S. 556 ; 8 N. S. 556 ; 19 L. 499. Art. 984. — It is necessary that the intention should be united to the fact, or rather manifested by the fact, in order that the acceptance be inferred. Sco6L. IT; 19 L. 499. Art. 985. — The person who is called to the succession, if he dispose of a thing which he docs not know to belong to the succession, does not thereby do an act that will make him liable as heir, because such an act does not include the will to accept. 19 L. 462 ; See 19 L. 499. Art. 986. — On the other hand, there are some acts which, though in reality they are foreign to the succession, nevertheless evidently manifest the will to accept ; as, for example, if the person who is called to the succession possess himself or dispose of effects found in the suc- cession, thinking that they belong to it, he does an act which makes him liable as heir, because his belief that the effects appertained to the suc- cession is sufficient to establish his will to accept. 19 L. 462 ; 3 A. 36 ; See 2 E. 1ST. Art. 987. — There are some facts which necessarily suppose the will of being heir, and others which may be differently interpreted, according to circumstances. 19 L. 462; 8 A. 36. Art. 988. — All those acts of property which the person called to the succession can only do in quality of heir, suppose necessarily his acceptance, for to act as owner is to make himself heir. There is an exception to this rule in those cases in which the acts of property are necessary for the preservation of the thing, as is hereafter explained. 19 L. 462, 499 ; 5 A. 113 ; See 3 L. 154 ; 2 E. 18T. Art. 989. — The person called to the succession does not commit an act of heir by disposing of property belonging to the succession by an- other title than that of heir ; as if he should be testamentary executor and heir at the same time, provided that in disposing of the property he does not assume the quality of heir. SceSL. 154; 2 L. 8T1. Art. 990. — With regard to these acts, which may be differently interpreted according to circumstances, it is necessary to distinguish acts of property from acts of administration or of preservation, or pre- paratory acts, which tend ouly to ascertain the value of the succession. 140 0^' SUCCESSIONS. The time when these acts are done must also be takeu into conside ration. See 19 L. 499. Art. 991. — Thus acts which are merely conservatory, and the object of which is temporary, such as superintendence and administration, do not amount to an acceptance of the inheritance, unless the title and quality of heir should be therein assumed. See 19 L. 499. Art. 992. — The person called to the succession, who does certain acts either from necessity or for the benefit of the succession only, may show what was his real intent by reservations or protestations made before a notary, or inserted in his petition, if there be a judicial proceedinff. ^ See 2 L. 299. Art. 993. — Though it may be necessary to sell some of the effects of a succession to prevent loss or waste, the sale of the least article of property belonging to the succession will render the person called to the succession irrevocably the heir, unless he cause himself to be autho- rized by the judge to make this sale at public auction, on a petition in which he shall allege the necessity there is for making it, and shall pro- test that he does not mean by this act to do an act that would make him liable as heir. See 19 L. 499; 2 E. 1S7. Art. 994. — The person called to the succession does an act which makes him liable as heir, if, when cited before a court of justice as heir for a debt of the deceased, he suffers judgment to be given against him in that capacity, without claiming the benefit of the inventory, or re- nouncing the succession. See 19 L. 499; 8 N. 8. 232. Art. 995. — An act of piety or humanity towards one's relations is not considered an acceptance ; it is not therefore an acceptance to take care of the burial of the deceased, or to pay the funeral expenses, even without protestation. Art. 996. — The donation, sale or assignment, which one of the co- heirs makes of his rights of inheritance, either to a stranger or to his co-heirs, is considered to be, on his part, an acceptance of the inherit- ance. Art. 997. — The same may be said, 1st, of the renunciation, even if gratuitous, which is made by one of the heirs in favor of one or more of his co-heirs, and 2d, of the renunciation which he makes in favor of all his co-heirs indistinctly, when he receives the price of this renunciation. Art. 998. — Those who are not capable of contracting obligations, such as minors or persons interdicted, cannot accept an inheritance; but the tutor can accept inheritances falling to the share of his pupil, and so can the curator with regard to those who are under his curator- ship, with the formalities prescribed by law. 8 L. 242 ; See 3 K. 29. Art. 999. — The acceptance of a succession by a married woman without the authorization of her husband or of the judge, is not valid. Art. 1000. — If the wife should refuse to accept an inheritance, her i41 OF SUCCESSIONS. 141 husband, who has an interest to have it accepted, in order to increase the revenues of which he has tlie enjoyment during the matrimony, may, at his risk, accept it on the refusal of his wife. Art. 1001. — Not only the person who is entitled to an inheritance may accept it, but if he dies before having expressly or tacitly accepted or rejected it, his heirs shall have a right to accept it under him. Art. 1002. — When several heirs in the same degree are called to a succession, some may accept unconditionally, others under the benefit of an inventory ; for the unconditional heir does not exclude the heir under the benefit of inventory. Art. 1003. — The heir who is of age cannot dispute the validity of his acceptance, whether it be express or tacit, unless such acceptance has been the consequence of fraud practised, or violence exercised against him ; he never can urge such claim under pretext of lesion. Art. 1004. — Nevertheless, if the heir who has expressly or tacitly accepted the succession, has not put himself into possession before he has caused a true and faithful inventory to be made, in conformity to that which is prescribed to the beneficiary heir, he can discharge himself from paying the debts of the succession out of his own property, by abandoning the efi"ccts of the succession to the creditors and legatees of the deceased, and rendering them a faithful account of the same, as well as of the fruits and revenues received by him. But, in order to enjoy this advantage, the heir who has accepted, must not have disposed of any of the property movable or immovable of the succession, except in the forms prescribed in the case of the benefit of inventory. He must not have been decreed by a definitive judgment to be the unconditional heir, nor have accepted at the suit of the creditors, insti- tuted to oblige him to assume this quality. Art. 1005. — The heir who has accepted the succession simply, may even be compelled to make an inventory of the succession, and to give security in the same manner as in the case of the benefit of an inventory, if a majority in amount of the creditors of the succession, either present or represented in the parish where the succession is opened, require it ; in default of such security, there shall be appointed an administrator to administer the succession according to the provisions of the section relative to the benefit of inventory. 10 Pv. 39C ; 1 A. 181. Stat. 25th March, 1828, p. 156. — \} 15. In obtaining possession of the efiects of a succession, the heirs shall not be permitted, under any pretence whatsoever, to have an actual delivery of any property of such succession which may be in suit, or to receive the proceeds or any moneys of said succession when there shall be claims thereon pending in said courts, unless they previously give good and sufficient security, if the plaintifi" or plaintifi's in such suits require it, and file their written obligation to that cifect in the said court of probates, which security shall be of one-fourth over and above the amount of the claims for money thus pending, or of the appraised value of the property thus claimed, 142 OF SUCCESSIONS. which estimation shall be made by two appraisers appointed by the judge. Art. 1006. — The eflfect of the simple acceptance of the inheritance, whether express or tacit, is such, that when made by an heir of age, it binds him to the payment of all the debts of the succession, not only out of the effects which have fallen to him from the succession, but even personally, and out of his own property, as if he had himself contracted the debts or as if he was the deceased himself ; unless, before acting as heir, he make a true and faithful inventory of the effects of the succes sion, as here above established, or has taken the benefit treated of here after. The engagement of the heir, who has accepted unconditionally, is somewhat different with respect to legacies, as shall be hereafter explained. 3R. 29; HE. 396. Section II. — Of the Renunciation of Successions. Art. 1007. — He who is called to the succession, being seized thereof in right, is considered the heir as long as he does not manifest the will to divest himself of that right by renouncing the succession. Stat. 29th March, 1826, p. 142. — ^ 9. In all cases of cessions of property by insolvent debtors, and in all cases of renunciations of suc- cessions by the heirs, if there shall remain a surplus after payment of all the debts, the same shall be paid over to the ceding debtor or debt- ors, their heirs or assigns, or to the heirs who have made the renuncia- tion, their heirs or assigns, as the case may be. See 2 L. 871. Art. 1008. — A succession may be renounced only under the same circumstances in which it can be legally accepted, according to the rules established in the preceding section. Art. 1009. — A succession can neither be accepted nor rejected con- ditionally. Art. 1010. — The renunciation of a succession is not presumed, it must be made expressly by public act before a notary, in presence of two witnesses. 2 L. 371 ; See 13 L. 58. Art. 1011. — He to whose share an inheritance falls, may refuse it, provided he be capable of alienating ; for the renunciation of an inherit- ance is, in all respects, assimilated to an alienation. Thus, a minor cannot make a valid refusal of an inheritance, with- out the authorization of the judge, and of his tutor or curator. The same rule applies to those who are interdicted. 3 L. 242. Art. 1012. — A woman, under the power of her husband, cannot refuse the inheritance falling to her share, unless she is duly authorized to that effect by her husband, or, on the denial of her husband, by the judge. Art. 1013. — He who is called to an inheritance may accept or re- nounce the succession by himself or by an attorney in fact, provided the attorney be specially appointed to that effect. 1 N. S. 638. 143 OF SUCCESSIONS. 143 Art. 1014. — The creditors of the heir, who refuses to accept or w^ho renounces an inheritance to the prejudice of their rights, can be authorized by the judge to accept it, in the name of their debtor and in his stead, according to the forms prescribed on this subject in the fol- lowing section. In case of this accepta,nce, if there be a renunciation on the part of the debtor, the renunciation is annulled only in favor of the creditors, for as much as their claims amount to, but it remains valid against the heir who has renounced. If, therefore, after the payment of the creditors, any balance remain, it belongs to his co-heirs who may have accepted it, or if the heir who has renounced be the only one of his degree, it goes to the heirs who come after him. If, on the contrary, the heir has only refused to accept and has not renounced, he can claim the surplus, on accepting the succession, pro- vided his right of acceptance be not pi-escribed against. Art. 1015. — The portion of the heir renouncing the succession, goes to his co-heirs of the same degree ; if he has no co-heirs of the same degree, it goes to those in the next degree. This right of accretion only takes place in lawful or intestate succes- sions. In testamentary successions, it is only exercised in relation to legacies, and in certain cases. 12 L. 575. Art. lOlG. — The accretion operates of full right, independently of the will of the person for whose benefit it is, and whether he be ignoi-ant or not of the renunciation which gave rise to it. 12 L. 575. Art. 1017. — He in whose favor the right of accretion exists, can- not refuse the portion of the heir who has renounced, and keep that part which has fallen to him in his own right, because he is bound to accept or renounce for the whole. Art. 1018. — The rule contained in the preceding article, admits of an exception, wlien the heir, who has already accepted, has caused his acceptance to be rescinded ; for in this case his co-heirs may refuse the portion which he has thus abandoned, and release themselves from the debts with which it is incumbered, by abandoning this portion to the creditors. Art. 1019. — The accretion is for the benefit of the heirs who have accepted, or who may accept ; an heir, who has once renounced, has no claim to the portion of him who afterwards renounces. Art. 1020. — The heirs, to whom the portion comes by the renunci- ation of their co-heirs, take it in the same proportion that they do the inheritance. Art. 1021. — The partition of it is made among them, in their own rights or by representation, in the same manner as the succession is divided. Art. 1022. — Heirs, who have embezzled or concealed effects be- longing to the estate, lose the faculty of renouncing ; and they shall remain unconditional heirs, notwithstanding their renunciation, and shall have no share in the property thus embezzled or concealed. See 4 L. 485. 144 OF SUCCESSIONS. Art. 1023. — The faculty of accepting or renouncing an iulieritauce becomes barred by the lapse of time required for the longest prescrip- tion of the rights to real estates. Art. 1 024. — So long as the prescription of the right of accepting is not acquired against the heirs who have renounced, they have the faculty still to accept the inheritance, if it has not been accepted by other heirs, without prejudice, however, to rights which may have been acquired by third persons upon the property of the succession, either by prescrip- tion, or by lawful acts done with the administrator or curator of the vacant estate. In like manner, so long as the prescription of renunciation is not determined, the heir may still renounce, provided he has made an act to make himself liable as heir. 9 L. 135 ; 2 A. 466 ; See Ait. 347. The words ^^ made an'''' should bo omitted in the second line of the last paragraph, and the words '■^done no'''' inserted. See French text. See original in the office of the Secretary of State. Section III. — Of the Benefit of Inventory and the Delays for Deh- berating. Art. 1025. — The benefit of inventory is the privilege which the heir obtains of being liable for the charges and debts of the suc- cession, only to the value of the effects of the succession, in causing an inventory of these effects to be made within the time and in the manner hereinafter prescribed. Art. 1026. — By term for .deliberating is understood the time given to the beneficiary heir, to examine if it be for his interest to accept or reject the succession which has fallen to him. Art. 1027. — The heir, who wishes to enjoy the benefit of inventory and the term for deliberating, is bound, as soon as he knows of the death of the deceased to whose succession he is called, and before committing any act of heirship, to cause the seals to be afiixed on the efi"ects of the succession, by any judge or justice of the peace. Art. 1028. — In ten days after this affixing of the seals, the heir is bound to present a petition to the judge of the place in which the suc- cession is opened, praying for the removal of the seals, and that a true and faithful inventory of the effects of the succession be made, as is hereinafter prescribed. Art. 1029. — In all cases, in which a succession is opened, and the presumptive heirs, who are present or represented, do not take the necessary measures to cause the seals to be affixed to, and an inventory made of the effects of the succession, any creditor of the deceased has the right, ten days after the opening of the succession, to cite the heirs before the judge of the place in which it is opened, in order to oblige them to declare whether they accept or renounce the succession. 2 L. 299. Art. 1030. — If the heirs thus cited declare that they accept the suc- cession, or if they are silent or make default, they shall be considered as having accepted the succession as unconditional heirs, and may be sued as such. Art. 1031. — If, on the contrary, the heirs thus cited declare that they wish to take the benefit of inventory, and have the delay for delibe- 145 OF SUCCESSIONS 145 rating, tlie judge shall grant tliom the delay, and order all proceedings against them, personally or as heirs, to be suspended until the term ha^ expired. 6 N. S. 293 ; 2 L. 299 ; 7 R. 24 ; 12 E. 41. Art. 1032. — "Whether the heir claims directly the term to deliberate, or whether it is claimed at the suit of the creditors of the succession, it shall be the duty of the judge to cause all the property belonging to the estate to be exhibited, and to make an inventory thereof, or to cause the same to be made by a notary duly authorized by him, which must be done without delay, and after calling the heir, and in his presence or that of his attorney, if either attend, and of two witnesses. 12 R. 41. Art. 1033. — If there are, belonging to the succession, eifects situated in difiFerent parishes, the judge of the place where the succession is opened, shall address commissions to the judges of these parishes, au- thorizing them to make the inventory of the property situated within their respective jurisdiction ; these judges are bound to make the inven- tory as soon as possible, in the manner prescribed in the preceding ar- ticle, and shall return, without delay, certified copies of the same to the judge issuing the commissions. Art. 1034.— As soon as the inventory or inventories of the succes- sion are finished, the judge of the place where the succession is opened, shall name an administrator to manage the property thereof, and oblige him to give good and sufficient security for the fidelity of his adminis- tration, unless the administrator prefer to furnish, in the stead of this security, a special mortgage on unincumbered property of a value suffi- cient to serve as a guaranty for his administration. 12L.:i!9; liR. 41: lA, 181; 4A. 55S; 6 A. 64; See IT L. 104; IR. 407; 7R. 24; 9 E. 13S ; 11 R. 17. Art. 1035. — In the choice of the administrator th^ preference shall be given to the beneficiary heir over every other person, if he be of age and present in the State. 4L.565; 6L.2n5; 1SL.894; IE. 285; lA.lSl; 2A.26S; 4A.25; Bec5A.G92; C.P.970, 6 L. 205. Art. 1036. — If there be two or more beneficiary heirs of age and present in this State, the judge shall select one or two whom he shall consider the most solid, for the administration of the succession. 1 A. 181 ; 3 A. 5G5 ; 5 A. C92 ; C L. 215. Art. 1037. — If all the beneficiary heirs be minors, their tutors or curators can claim the preference for the administration, and it shall be given them, under the charge of their being personally responsible for their acts of administration, and giving security, as before required, though these tutors or curators should be the father or mother of the minors. aL.299; 6L.205,493; 12E.41; 4A.558; 5A.27; See 17 L. 104; 1 E. 407; 7 E. 24; 9 E. 138; 11 E. 67. Art. 1038. — If the beneficiary heirs are absent, but represented in the State, their attorneys in fact can claim, in the name of their con- stituents, the preference "for the administration over every creditor of the succession, provided they have a special power to accept or reject this 10 146 OF SUCCESSIONS. succession, or a general power to accept or reject all successions which may fall to their principals. 5 N. S. 11 ; 7 L. 395 Art. 1039. — In case there be neither beneficiary heir, special at- torney in fact, tutor nor curator of the heirs, who will or can accept the administration or give the necessary securities, it shall be given to one or two of the creditors, whom the judge shall choose from among those who have first claimed this charge. 18 L. 394 Art. 1040. — If there be several heirs to a succession, some of which have accepted unconditionally, and others claim the benefit of the term for deliberating, the judge of the place, where the succession is opened, shall, notwithstanding, cause an inventory to be made of the eflfects of the succession, and shall appoint an administrator to manage them, until a partition of the same be made among the heirs. 12 R. 41 ; 1 A. 181 ; 2 A. 412 ; 3 A. 502 ; See 4 Pw 412 ; 2 A. 462 ; 5 A. 196; C. P. 9T6; 6 L. 205, 493. Art. 1041. — The security to be given by every administrator thus named, shall be one-fourth beyond the estimated value of the movables and immovables, and of the credits comprised in the inventory, exclusive of the bad debts. By bad debts are understood those which have been prescribed against, and those due by bankrupts who have surrendered no property to be divided among their creditors. 12 Pv. 155 ; 4 A. 553 ; 6 A. 64 ; See IT L. 104 ; 1 Pv. 407 ; 7 E. 24 ; 9 Pv. 13S ; 12 E. 41. Art. 1042. — The administrators thus chosen have the same powers and are subject to the same duties and responsibilities as the curators of vacant estates, under the modifications hereafter made. 7 N. S. 466 ; 8 N. S. 581 ; 8 L. 412 ; 13 L. 436 ; 12 L. 129 ; 14 L. Ill ; 17 L. 500 ; 7 E. 247 •, 10 E. 467; 11 E, 5U8 ; 2 A. 966 ; C. P. 992, 994. Art. 1043. — The term given to the beneficiary heir to deliberate wliether he will accept or reject the succession, shall be thirty days from tlie day on which the inventory is finished. If there have been inventories made in different parishes, the term commences from the day the last of them is finished. Art. 1044. — The administrator cannot sell the real estate or slaves of the succession committed to his charge, until the term for delibera- ting has expired, and as to movables, if there be any liable to be wasted or expensive to keej^, he caii sell them on the special authorization of the judge, at public auction, after advertisement during the time and in the manner prescribed by law. Nevertheless, the judge can authorize the administrator to sell, in the same manner, movable efi"ects which might be preserved, if it be necessary to dispose of tlie whole or part of them in order to pay debts, the payment of which is urgent. 10 L. 435 ; 17 L. 600. Art. 1045. — During the term for deliberating, the beneficiary heir cannot be compelled to assume the quality of heir, nor can any judgment be rendered against him. If he renounces at the expiration of the term 147 OF SUCCESSIONS. 147 or before, the costs by liim lawfully incurred to obtain the benefit of in- ventory up to the renunciation, are at the expense of the succession. Art. 1046. — Nevertheless, the creditors of the deceased may insti- tute their suits against the administrator of the succession ; but on the exception being made by the administrator that the beneficiary heir is within the time for deliberating, the proceedings shall be stayed until the expiration of the term, and until the heir has decided. 2 L. 299 ; 2 A. 575. Art. 1047. — The effect of the benefit of inventory is that it gives the heir the advantage : 1. Of being discharged from the debts of the succession by abandon- ing all the effects of the succession to the creditors and legatees ; 2. Of not confounding his own effects with those of the succession, and of preserving against it the right of claiming the debts due him from it. See 4 L. 14. Art. 1048. — At the expiration of the term for deliberating, the creditors and legatees of the succession can compel the heir to decide whether he accepts or rejects the succession, and they shall present a pe- tition to this effect to the judge of the place where the succession is opened, who shall cause the beneficiary heir to be cited to ansAver thereto. Art. 1049. — If, on this demand, the beneficiary heir declares that he accepts the succession simply, all the effects which compose it must immediately be delivered to him, but then he becomes responsible for the debts of the succession, not only to the amount of the effects thereof, but personally and out of his own property, and the creditors of the de- ceased can obtain judgment against him. Art. 1050. — In case the heir makes default on this demand, he shall be considered as unconditional heir, and be bound as such. Art. 1051. — But if the heir declares that he is not willing to accept the succession, otherwise than under the benefit of an inventory, the person appointed administrator of the estate, whether it was the heir himself or any other individual, shall proceed to the sale of the property of the succession and to the settlement of its affair.?, as prescribed in the following articles ; the beneficiary heir shall, at the time of such settle- ment, have a right to be paid, as any other creditor, all debts due him by the deceased, and shall moreover be entitled to the balance of the proceeds of the sale of the estate, if any such balance be left after pay- ment of all the debts and charges of the succession. 4 L. 44T ; 7 R. 24 ; 10 E. 457 ; 11 R. 508 ; 12 R. 41, 24-3, 323. Art. 1052. — If, on the contrary, the beneficiary heir renounces in due form, he preserves all the rights he has against the succession, if he is a creditor ; and in case he has been originally appointed administrator of the succession he shall continue to manage it in this capacity, even if he is not a creditor of the deceased. Art. 1053. — If on the renunciation of the beneficiary heir, the heirs, called to the succession on his default, accept the succession, they shall 148 OF SUCCESSIONS. be admitted thereto, and they shall have the right to enjoy that part of the term for deliberating, which has not expired, should the heir re- nounce before its expiration. But if the term has expired, the heirs cannot obtain a prolongation of it, but must immediately decide whether they accept or reject the succession, as is provided for above. 2 A. 4. Art. 1054. — If the heir secrete any th.ng belonging to the succes- sion, or has knowingly, and in bad faith failed to include in the inven- tory any of the effects of the succession, he is deprived of the benefit of inventory. 4 L. 485. Art. 1055. — As soon as the beneficiary heir has renounced in due form, if no heirs present themselves to accept the succession on his de- fault, or if they themselves renounce, the administrator shall cause the immovables and other effects of the succession, remaining undisposed of, to be sold on the authorization of the judge, and after advertisement during the time and in the manner prescribed by law. 7L. 812; 17 L. 500. Art. 1056. — After the sale of the effects of the succession thus made, the administrator shall render his account to the judge who has appoint- ed him, whose duty it is to examine and correct or approve of the same ; but the administrator cannot pay the debts or legacies, even when there are sufficient funds, without being authorized by the judge to that effect. If there be sufficient funds, the administrator shall present to the judge a statement of the payments to be made, in which he shall include the debts before any legacies; and if the funds in hands are not suffi- cient for the payment of the debts, he shall make a plan of the distribu- tion to be made among the privileged and mortgage creditors, according to the order of the privileges and mortgages, and showing the dividend due to each. 2 A. 412, 459 ; See 11 L. 409 ; 12 R. 243 ; C. P. 1053 to 1055. Art. 1057. — The judge, on the demand of the administrator, shall order that the creditors and legatees of the succession be notified to show cause, if any they have, within ten days, why they should not be paid conformably with the authorization solicited by the administrator, or ac- cording to the tableau of distribution by him presented. 2 A. 4. Art. 1058. — If, in ten days after this notice, there is no opposition on the part of the creditors or legatees, the administrator shall proceed to the payment, in conformit}^ with the authorization by him obtained, or the tableau of distribution which he has presented, and which the judge shall cause to be homologated. Art. 1059. — If, on the contrary, there is any opposition to the pay- ment or to the tableau of distribution, the judge shall decide thereon in a summary manner ; but if his decision be appealed from, the adminis- trator can make no payment, until final judgment be rendered thereon. C N. S. 350. 149 OF SUCCESSIONS. 149 Art. 1060. — When, after payment has thus been made, new credi- tors present themselves, who have not made themselves known before, if there be not funds sufficient to pay them in the hands of the administra- tor, they can oblige the legatees, who have been paid, to return their legacies entirely, or a due proportion thereof, in order to satisfy their debts with interest and costs. 5 A. 3S; Sec 10 L. 264. Art. 1061. — But if the sums thus returned by the legatees are not sufficient to pay the creditors who have thus presented themselves, or if there are no legatees, these creditors have a direct action agahist the other creditors who have been paid, to oblige them to make up to the former a sum equal to that which the former would have received, had they presented themselves before ; provided that the creditors, who have bepn paid in virtue of a privilege or mortgage, cannot be obliged to make this contribution, by new creditors who have neither privilege nor mort- gage. But this action of the creditors who have not been paid, against the creditors and legatees who have been paid, is barred by the lapse of three years from the date of the order or definitive judgment by virtue of which such payment has been made. In all these cases, these credi- tors have no right to sue the administrator, who has made the payment by order of the court, and according to the forms herein prescribed. 5 A. 88. Art. 1062. — The administrator shall be allowed, on the settlement of his account, a commission of two and one-half per cent, on the amount of the inventory of the effects of the succession committed to his charge, deduction being made of the bad debts. If there are two administrators, they divide this commission. 12 L. 608 ; 12 K. 155 ; 8 A. 624 ; See 5 N. 8. 229 ; 3 L. 464 ; 1 R. 400 ; 4 A. 624 ; Arts. 1187, 1188, 1676. Art. 1063.— The expenses of the seals, if they have been affixed, of the inventory and sale, and of the account rendered by the administra- tor, and other charges of the same kind, are at the cost of the suc- cession. 1 R. 98. Art. 1064. — When the creditors wish to be authorized to accept a succession, which their debtor refuses to accept, or which he has re- nounced to their prejudice, they must j^rcscnt a petition to the judge of the place where the succession is opened, to obtain the authorization necessary for that purpose, after the debtor or his representative has been duly cited, or a counsel appointed for him, if he is absent, by the judge. See 2 L. 466. Art. 1065.— If, on tliis demand, it is proved to the judge that the debtor refuses to accept the succession, or has renounced it to the preju- dice of his creditors, he is bound to authorize the creditors to accept it in his stead ; and it is the duty of the judge to cause immediately to be made an inventory of the effects of the succession, to appoint an adminis- trator to manage them, sell them and pay the creditors, on his giving 150 OF SUCCESSIONS. good and suf&cient security for the fidelity of his administration, as in the case of acceptance with the benefit of inventory. 12 L. 129. Art. 1066. — After having paid the creditors, deducted his commis- sion and other lawful expenses, if there remains a balance in the hands of the administrator, he shall pay it over to the presumptive heir, if the latter has not renounced the succession, or to the heirs who inherit on his default, if he has renounced it. 2 A, 412. Art. 1067. — The creditors, who thus accept a succession in the name of their debtor, are considered as accepting it under benefit of in- ventory. CHAPTER VII. OF THE SEALS AND OF THE ADMINISTRATION OF VACANT ESTATES, AND ES- TATES OF WHICH THE HEIRS ARE ABSENT AND NOT REPRESENTED. Section I. — Of the Seals, and of the Affixmg and Talcing off of the same. Art. 1068. — By seals, in matters of succession, is understood the placing of the judge's seal on the efi"ects of a succession for the purpose of preserving them, and for the interest of third persons. Art. 1069. — The seals must be placed on the bureaus, coifers, ar- moires and other things, which contain the effects and papers of the de- ceased, and on the doors of the apartments which contain these things, so that they cannot be opened without tearing ofi", breaking or altering the seals. Art. 1070. — The seals, after the decease, must be affixed by a judge or justice of the peace within the limits of his jurisdiction, and may be affixed by him either as ex officio, or at the request of the parties. Art. 1071. — The seals are affixed at the request of the parties, when a widow, a testamentary executor or any other person who pre- tends to have any interest in a succession or community of property, re- quires it. Art. 1072.— The seals are affixed ex officio, when the presumptive heirs of the deceased do not all in reside in the place where he died, or if any of them happen to be absent. Art. 1073. — Whoever has knowledge of the death of a person, whose heirs are not all in the place, is bound to give immediate notice thereof to any judge or justice of the vicinage. Art. 1074. — If a person dies in the house of any one who keeps boarders or gives lodging for money, and the latter neglects or delays to give notice of the decease, as is prescribed in the preceding article, he shall be responsible for all damages which may be caused to any one who may be affected by this negligence, besides the punishment which is or may be pronounced by the Penal Code in such case. It is the same with a captain or master of a vessel or other craft, 151 OF SUCCESSION'S. 15i who neglects to give notice, as before stated, of the death of a person deceased on board his vessel or craft. Art. 1075. — It is the duty of every judge or justice of the peace, who knows of himself, or who shall receive information of the death of any one, all of whose heirs are not in the place, to go immediately to the house where the deceased resided, and to affix the seals in the presence of two witnesses of the neighborhood, who know to sign, if such can be found. Art. 1076. — The judge or justice of the peace who affixes the seals, must not himself make, and must prohibit the persons present from making, any search or examination among the papers or eifects of the deceased, even under the pretext of searching for a will. Art. 1077. — The judge or justice of the peace who affixes the seals, ought to shut up in the apartments, the doors and windows of which he must seal, all the movables and effects which can be removed, and shall only leave out those for which the family of the deceased, if he has left any, had an absolute need for their use, of which he shall make a list at the end of his jnocH-vcrhal of the affixing of the seals. Art. 1078. — Prords-verbal of the affixing of the seals must be re- duced to writing in English or in French, on the spot where the seals are fixed, and without leaving it. The 2J)occ s-verbal must contain the day of the month and year in which it is made, and be signed by the judge and the witnesses ; if any of the latter do not know how to sign, mention of it must be made in the act. Art. 1079. — The judge or justice of the peace who affixes the seals, shall appoiut a guardian at the expense of the succession, to take care of the seals and of the effects of which an account is taken at the end of the j)'>'oce,s-vcrbal of the affixing of the seals ; the guardian must be a person domiciliated in the place where the inventory is taken. The judge, when he retires, must take with him the keys of all the things and apartments upon which the seals have been affixed. Art. 1080. — If it be a justice of the peace who has affixed the seals he must give immediate information of it to the judge of the place, and deliver to him the inocis-vcrbal of the affixing of the seals, together with the keys of the things and apartments upon which he has affixed the seals. Art. 1081. — If in the ten days which follow the affixing of the seals, an heir presents himself, who demands that the seals be raised, the judge shall order it to be done, if it is proved to him that all the heirs of the deceased are present or represented in the State. 1 L. 49. Art. 1082. — If it be a testamentary executor who demands that the seals be raised, the judge ought not to grant his demand, until he is satisfied that the executor has caiised himself to be recognized as such by the competent tribunal, and must oblige him to cause V^ be made an in- ventory of the effects on which the seals have been affixed, in the same manner as he is obliged to make the inventory of the other effects of the succession, according to the dispositions in this respect contained in the title which treats of iviJh. 1 L. 49. 152 OF SUCCESSIONS. Art. 1083. — If, at the expiration of the ten clays, no one presents himself who has a right to demand the seals to be raised, or if those who do present themselves, do not comply with the conditions mentioueN in the preceding articles, the judge of the place shall raise them, and make an inventory of the effects contained under them, and of the other effects of the succession within his jui'isdiction, in the manner and form prescribed in the following section. Art. 1084. — The raising of the seals is done by the judge of the place, or justice of the peace appointed by him to that effect, in the presence of two witnesses of the vicinage, in the same manner as for the affixing of the seals. Art. 1085. — If the seals are found sound and entire, the judge or justice of the peace, after recognizing them, shall take them off, shall discharge the guardian, and deliver the effects to the heir or executor havino- a rig-ht to receive them as is before said. Art. 1086. — If, on the contrary, the judge or justice of the peace finds that the seals have been broken maliciously or altered, he shall make mention of this circumstance in his proces-verbal^ and of the de- claration which the guardian may have made of his knowledge of the causes of the seals being altered oi- broken. Art. 1087. — Whoever maliciously breaks or alters seals which have been affixed in the manner before described, on the effects of a succes- sion, shall be liable for all damages which may be caused thereby, be- sides being exposed to the punishment prescribed by the penal laws Section II. — Of the Achninistratiofi of Vacant and Intestate Succes sions. § 1. — General Dispositions. Art. 1088. — A succession is called vacant when no one claims it, or when all the heirs are unknown, or when all the known heirs to it have renounced it. 9 L. 135 ; 1 A. 181 ; See 11 L. 409 ; 12 E. 258. Art. 1089. — A succession is called intestate when the deceased has left no will, or when his will has been revoked or annulled as irregular. Therefore the heirs to whom a succession has fallen by the effects of law only, are called heirs ab intestato. 15 L. 52T. Art. 1090. — Vacant successions are managed by administrators appointed by courts, under the name of curators of vacant successions. See 11 L. 409 ; 2 E. 443. Art. 1091. — intestate successions, the heirs of which or some of them are absent and not represented in the State excepting they are minors, are managed by administrators appointed by courts, under the name of cur aims of absent lieirs. 11 L. 409; 15 L. 527. 153 OF SUCCESSIONS. 153 Art. 1092. — But if tlie heirs, who are absent, are minors, the ap- pointment of a curator, as prescribed in the preceding article, does not take place, and the succession is administered by the tutor or curator ad bona who must be appointed for the minor according to law, under the modifications established in the section of this title relating to the benefit of inventory. 3 L. 4S3; 7 L. 539; See 11 L. 409 ; 15 L. 527. ^ 2. — Of the Inventory of Vacant and Intestate Succt^sions subject to Administration. Art. 1093. — If, ten days after the opening of a succession, no one presents himself having the right to claim the possession of it, or if it be shown that all the heirs of the deceased, or a part of them, are ab- sent from and not represented in the State, it is the duty of the judge of the place where the deceased has left property, after having raised the seals, if any have been affixed, to make an inventory of the effects of the deceased found within his jurisdiction, in presence of two wit- nesses and counsel appointed by him to represent the absent heirs. Art. 1094. — If any of the heirs are present or represented in the State, or if the deceased had a community of goods or commercial part- nership with any one, the judge who makes the inventor}'-, is bound to notify these heirs or partners, or their attorneys in fact to attend, if they think proper, if they do not reside more than thirty miles from the place where the inventory is to be made. Art. 1095. — If, by an express clause in the act of partnership which the deceased has entered into, it be stipulated that the partnership should continue, notwithstanding the death of one of the partners, be tween the surviving partner or partners and the heirs of the deceased, this agreement shall not prevent the judge from making an inventory of the partnership's effects ; but he must leave them in the possession of the surviving partner or partners, without requiring from them any se- curity for the administration. See 1 L. 384. Art. 109G. — Besides the formalities before described, the inventory of the effects of vacant successions, or those of which the heirs are ab- sent and not represented, must be clothed with all the forms which are prescribed for public inventories. Art. 1097. — Public inventories are those which are accompanied with the solemnities or formalities of the law, and which are made by a judge or by a notai-y duly appointed. 1 L. 49. Art. 1098. — The public inventory ought to include : 1. An exact and particular description of all the effects movable and immovable of the succession, which arc found in the place where the in- ventory is made, and the estimate which is made of each, by appraisers who must be appointed and sworn by the judge or notary who makes the inventory ; 2. An exact and particular description of all the titles, books, cre- dits and other important papers found in the succession, together with 154 OF SUCCESSIONS. the name, surname, and place of each debtor, if he be known, as well aa the letter, number, and particular mark under which each of these pa- pers thus inventoried has been numbered and marked by the judge or notary ; 3. A description and enumeration of the different bundles, in which the other papers have been put up by the judge or notary, such as let- ters and others, following, as much as possible, the order of their dates, and mentioning the letter, number, or mark under which each of these bundles, thus inventoried, have been numbered and marked by the judge or the notary, as well as the number of papers contained in each bundle. 5 L. 434 ; 12 E. 155. Art. 1099. — If there are in the succession eitects which belong en- tirely to the deceased, and others which belong to him in part only, the judge or notary must make this distinction in the inventory. He must also make mention of the effects and property which are claimed by third persons, as having been intrusted to the deceased to keep on deposit, consignment, or otherwise, all of which must be esti- mated with the effects of the succession, though they can be taken out of the inventory, if the claim to them is established. 17 L. 238 ; See 1 L. 179. Ae-t. 1100. — If there be due to the deceased any debts by verbal obligations, or the titles of which are not known in the succession at the time of the inventory, the judge or notary is bound to include them in the inventory among the active debts left by the deceased, if their existence has been proved to him, either by the titles which may be found elsewhere than among the effects of the succession, or by the testimony of witnesses, if the obligations have been verbal. Art. 1101. — The public inventory, in fine, must be clothed with the following forms : 1. Mention mvist be paid therein of the name, surname, quality, and place of residence of the judge or notary who makes the inventory, of the witnesses who have assisted, of the appraisers who have valued the property, and of the parties, if any, at whose instance the inventory is made. 2. Mention must be made of the place where the inventory is made, of the day, month, and year in which it is commenced and finished ; and if the judge or notary has employed several days, sittings or vacations to make the inventory, the date of each must be mentioned. 3. The inventory must be terminated by a recapitulation of all the sums and amounts therein contained, so that the whole amount of the effects of the succession may be known. 4. Minutes must be kept of the inventory and be signed at each vacation, and at the end of the act, by the judge or notary who makes it, by the witnesses and party, if there be any ; if not mention must be made of the causes for which the witnesses and parties have not signed. 11 L. 149 ; See 1 L. 49. Art. 1102. — The witnesses assisting at public inventories must be males of age, and domiciliated in the place where the inventories are made. Art. 1103. — The inventories of successions by notaries public 155 OF SUCCESSIONS 155 must be registered with the judge of the place of the opening of the succession ; and until then they are not admitted as proof in courts of justice. Art. 1104. — When the deceased who has left a vacant succession or intestate heirs, all or part of whom are absent from, and not repre- sented in, the State, has left effects in different places, the judges who have made inventories of these effects within their respective jurisdic- tions, are bound to address authentic copies tliereof without delay to the place where the succession is opened ; the expenses for these inven- tories and copies shall be paid from the first moneys realized. from the succession. <^3. — Of the Ajipointment of Curators to Successions, ami of the Se- curity they are bound to give. Art. 11 05. — When any one dies leaving a vacant succession or heirs absent from, and not represented in, the State, all actions which could have been brought against the deceased, must be commenced or accu- mulated, and prosecuted before the judge of the place where the suc- cession is opened, and brought against the curator appointed by the judge, as is hereafter prescribed. 10 E. 39a, Art. 1106. — He who claims the curatorship of a vacant succession, or one of which the heirs or part of them are absent and not represent- ed, must present his petition to that effect to the judge of the place where the succession is opened. 10 E. 896. Art. 1107. — The judge on receiving this request must give public notice thereof, with notice to all those who wish to make opposition thereto, to do it in ten days from the date of such notice. 5 N. S. 505. Art. 1108. — The public notice to be given in this case, as in all other cases in which the law requires it to be given, must be by adver- tisement in English and French, posted at the doors of the church of the place or of the court-house where the judge who has given the order, holds his court. This is what is understood by advertisements at the usual places, words frequently made use of in the dispositions of the law. Art. 1109. — Besides these advertisements, notice must be inserted in English and French, to wit : For New Orleans and places not more than one hundred miles distant therefrom, in two newspapers published there, and for places beyond that distance, in the newspaper, if any there be, which is published, at a distance not exceeding fifty miles from the place where the judge who has given the order, holds his ses- sions. Stat. 1853, No. 255; 7 L. 395. Art. 1110. — When the advertisements shall be published in the newspapers, as prescribed in the prcceding'article, they shall be inserted three different days before the expiration of the term fixed by law, if the term be of ten days, unless it be in places where the newspapers do not 156 OF SUCCESSIONS. appear often enough to repeat the advertisement as many times as is required by this article, in which case it will suffice if the advertisement be inserted as often as the gazette appears during that time. For those advertisements, for which the term of thirty days is fixed, it suffices if they are published in the newspapers, as above prescribed, once a week during that time. 4 L. 383. Art. 1111. — Whoever wishes to make opposition to a demand for the curatorship of a vacant succession or of absent heirs, must make it in ten days from the publication of the notice of the demand ; other- wise it cannot be admitted. 4 L. 4T1 ; 10 E. 896 ; 4 A. 25. Art. 1 1 12. — The opposition must be written and signed by the par- ty making it, or his attorney, and delivered at the office of the judge who has received the demand for the curatorship ; it shall contain a brief statement of the reasons for which the party opposing claims the curatorship in preference to the party demanding it. 1 K. 461 ; Sec 10 R. 193. Art. 1113. — The judge shall determine, in as summary a manner as possible, on this opposition. But though his decision be subject to an appeal, the curator appoint- ed by the judge may act as such, notwithstanding an appeal, if he give security, as is hereafter prescribed ; and all the legal acts done in his capacity shall be valid, although his appointment be annulled on the appeal. Art. 1114. — In contestations concerning the curatorship of vacant successions and those of absent heirs, the judge shall grant the curator- ship : To the surviving partner of the deceased, in preference to the heir present or represented, unless the partnership has been a commercial one. To the heir present or represented, in preference to the surviving husband or wife, if the deceased was married. To the surviving husband or wife in preference to the creditors of the deceased ; to the creditors, in preference to those who are not. 4 L. 143, 569; T L. 395; 13 L. 7T; 15 L. 527; IS L. 494; 2 A. 9T; 3 A. 261 ; 5 A. 27. Art. 1 115. — The partner or partners of a commercial house, having accounts to render to the heirs of their deceased partner, can in no case be appointed curators to the vacant succession or that of the absent heirs of the deceased. It must be given to a third person, the surviv- ing partner or partners having the right to claim the privilege of liqui- dating the partnership concerns, as is hereafter established. 3 L. 471. Art. 1116. — If several persons claim the curatorship, the judge is bound, except in those successions which do not exceed three thousand dollars in value, to give it to two of them and no more, provided they have the requisite qualifications, and offer sufficient security. 6L. 443; 11 L. 2S9; 2 A. 97. Art. 1117. — In the choice to be made among several persons, why 157 OF SUCCESSIONS. 157 have equal rights to the curatorship, but who have claimed it at differ- ent times, the judge must give it to him or those who have first pre- sented their demands, if they offer the necessary security. 3L.471; 11L.2S9; 2 A. 97. Art. 1 1 1 8. — In contestations relating to the curatorship of succes sions, the parties who have failed in their demands or oppositions, sup port the expense of them ; but the costs incurred by the curator to cause himself to be appointed, arc at the charge of the succession. 18 L. 493. Art. 1 119. — The curator of a vacant succession or of absent heirs, before he enters on the performance of his duties, must take an oath, before the judge who has appointed him, well and faithfully to discharge his duties as such, and give good and sufficient security for the fidelity of his administration. 8 N. S. 581 ; 11 L. 149 ; 1 A. 75; 3 A. 150; See 12 R. 233. Art. 1 120. — The security to be given by a curator of a vacant suc- cession or absent heirs, when all the heirs are absent from and not rep- resented in the State, is of one-fourth over and above the amount of the inventory, bad debts deducted. 4 N. S. 481 ; See 12 K. 238. Art. Ifel. — The security to be given by a curator of absei fc heirs, when he only represents a part of the heirs of the deceased, is of one- fourth over and above the amount of the portion coming to these heirs, according to the inventory of the succession, bad debts deducted. Art. 1 1 22. — No greater security can be required of the curator of a vacant succession or of absent heirs, than is required in the two prece- ding articles, unless new effects are discovered, which had not been in- cluded in the inventory. Art. 1123. — The curator of a vacant succession or of absent heirs may, instead of the security required of him, give a special mortgage on real estate belonging to him, of a sufficient value, which is unincumbered and situated within the limits of the jurisdiction of the judge who has appointed him. Bee 7 N. S. 294. Art. 1124. — The property of the curators of vacant successions and of absent heirs, and that of their securities shall be no longer subject to any general or tacit mortgage for the fidelity of their administration. iStat. iOih March, 1834, p. 113. — ^ 5. Hereafter no notary, parish judge, or register of mortgages, in making a certificate of mortgage, shall mention in his certificate the fact of registration of the bond of any administrator, curator of vacant succession, or of absent heirs. The proper construction of the article one thousand one hundred and twenty- four of the Civil Code not giving to such bonds when registered the force of a mortgage. Art. 1 125. — If any one, after having demanded and obtained the curatorship of a vacant succession or of absent heirs, permits three 158 OF SUCCESSIONS. days to elapse after his appointment, without giving the security or special mortgage required by law, the judge shall, on motion of the counsel of the absent heirs, duly notified to the curator, declare him divested of his curatorship, and fill the vacancy in the same manner as curators are appointed. § 4. — Of the Duties and Powers of Curators of Vacant Successions and of Absent Heirs. Art. 1 126. — Every curator of a vacant succession or of absent heirs is bound, within ten days after his appointment, to give public notice to the creditors of the succession, that they may make themselves known, and present an account of their respective claims and the titles by which they are established. 19 L. 462. Art. 1127. — Six months after his nomination, if the heirs do not appear in person or by attorney, the curator is bound to publish, in two of the newspapers printed at New Orleans, in English and French, a notice of the death of the deceased, whose succession he administers, ma- king mention of the name and surname of the deceased, of his place of birth, if it be known, of the place of his decease, and of the opening of his succession ; and the curator shall subjoin to this notice his own name and address. Art. 1128. — If the deceased was in community or partnership with any one who has survived him, the curator of the vacant qjiccession or of absent heirs is bound, immediately after his appointment, to sue for a partition, in order that the part which belonged to the deceased in the community or partnership property, be ascertained. 19 L. 402 ; 3 K. 262. Art. 1 129. — When any one of the heirs of the deceased is present or represented in the State, the curator of the heirs who are absent from and not represented in the State, is bound in the same manner as is pre- scribed in the preceding article, to sue for a partition in order to ascer- tain the part coming to the heirs represented by him. 2 A. 466. Art. 1130. — Suits for partition must be instituted before the judge of the place where the succession is opened, and the co-proprietors and partners of the deceased, as well as his heirs, present and represented, must be cited to appear before the judge in such suits, though their domicil or ordinary place of residence be out of the jurisdiction of the judge. Art. 1131. — If there be a commercial partnership, in which the de- ceased was concerned, the surviving partner, after the portion of the de- ceased in thfe partnership effects has been ascertained, and the estimate of it made on the inventory, shall have a right to require that this por- tion remain with his own, in order that the whole may be disposed of for the common profit in the ordinary course of trade, and the proceeds applied, as far as is necessary, to the payment of the partnership debts. 3 L. 274, S5T; T L. 194; 3 R. 44; See 2 L. 188. i 159 OF SUCCESSIONS. 159 Art. 1132 — This right cannot be refused to the surviving partner, if the succession of the deceased partner is vacant, or if all his heirs are absent and not represented ; but the surviving partner is bound to j^ve security to the curator of the vacant succession, or of absent heirs, to the amount of one-fourth over and above the estimated value of the por- tion which was coming to the deceased from the partnership property, according to the inventory. 3 L. 274, 357; 7 L. 194; 3 E. 44; 11 L. 195; See 2 L. 1S8. Art. 1133. — The surviving partner, who has thus obtained the ad- ministration of the partnership eflFects, has but one year from the day this administration has been given to him, to sell those effects according to the usual course of trade, and to settle the partnership concerns. After this time, he is bound to render an account of his administra- tion to the curator of the vacant succession, or of the absent heirs of his deceased partner, and to pay to him the part due to the heirs on the settleinent of the partnership concerns. Art. 1134. — During the time the administration of the surviving partner continues, tlie curator of the vacant succession or of the absent heirs of the deceased has a right to demand from him, from time to time, an account of his situation, and to exercise over the partnersliip affairs the same superintendence, which the deceased, during his" life, could have exercised. 3 L. 274 Art. 1135. — The Surviving partner, who has thus administered the partnership concerns and liquidated them, has no right to any commis- sion therefor. But lawful and necessary expenses incurred for the advantage of the partnership, during this administration, are borne by the succession in proportion to the interest of the succession in the partnership. Art. 1 1 36. — If any one of the heirs of the deceased partner is pres- ent or represented in the State, the surviving partner has no right to retain his part of the partnership property, no more than the parts of the other heirs who are absent, if the heir opposes it and accepts the succession purely and simply ; unless in the act of partnership it be stipu- lated that the surviving partner shall be intrusted with the liquidation of the partnership concerns, for in this case, such a stipulation must be carried into effect. 1 L. 884. Art. 1137. — Except in the case in which the surviving partner of a commercial house obtains the administration of the partnership property, as is established in the preceding articles, the property, which the de- ceased possessed in common or in partnership with others, must be di- vided, either in kind or by sale, as the judge, before whom the suit for partition is brought, may order. 3 K. 44 Art. 1 138. — Whether this partition be made in kind or by sale, it must be made in the manner and form prescribed in the laws of this title, relative to judicial partitions. Art. 1139. — Every curator of vacant successions or of absent heirs is prohibited from purchasing by himself or by means of a third person 160 OF SUCCESSIONS. any property movable or immovable intrusted to his administration, under the pain of nullity and responsibility for all damages caused thereby. Stat. 20 March, 1840, p. 123.^^ 1. Nothing contained in articles eleven hundred and thirty-nine and seventeen hundred and eighty-four of the Civil Code or in any other articles of the Civil Code or Code of Practice, shall be so construed as "to prevent any executor, executrix, ad- ministrator or administratrix, curator or curatrix of vacant successions, from purchasing at the sale of the effects of the deceased whose estate they may respectively represent when the said executor, execiitrix, ad- ministrator or administratrix, curator or curatrix is the surviving partner in community or an heir or legatee of the said deceased, and all purcha- ses so made shall be considered as valid and binding as though the same had been made by any disinterested third party or parties. ^ 2. All purchases which shall have been heretofore made at the sale of the effects of the succession of any deceased person, by the ex- ecutor, executrix, administratrix or administratrix, curator or cura- trix of said deceased's estate, when the said executor, executrix, ad- ministrator or administratrix, curator or curatrix shall have been the surviving partner in community, heir or legatee of the said deceased, shall be considered as valid and binding as though the same had been made by any person or persons legally capable of contracting ; Provided however, that any person or persons who shall wish to avail tliemselves of any informality in said sale or sales, by reason of the incompetency or legal disability resulting from the incapacity as aforesaid, of the per- son or persons having purchased so to purchase, shall be allowed to institute action to set aside said sale or sales by reason of said incom- petency or legal disability as aforesaid, resulting from the incapacity of the person or persons purchasing so to purchase, within two years from the date of the passage of this act. ^ 3. No exception shall lie against the A^alidity of titles to property, real or personal, so acquired as aforesaid, on any of the grounds hereto- fore enumerated, unless it shall appear to the court before whom said exception is pleaded, that a suit or suits have been instituted to set the same aside within two years after the passage of this act. ^ 4. The provisions of the second and third sections of this act, shall apply and have full force against minors, interdicted persons and married women, saving to them their recourse against their tutors, cu- rators or other legal representatives, should they be able to make it ap- pear that they have suffered any loss or damage. 14 L. Ill ; 1 A. 129 ; 3 A. 533. Art. 1 140. — Every curator of a vacant succession or of absent heirs is bound to take care of the effects intrusted to him as a prudent admin- istrator, and to render an exact and faithful account of the fruits and revenues they produce. He is responsible for all damages caused by his misconduct. 19 L. 462. Art. 1141. — A curator of a vacant succession or of absent heirs owes no interest on the sums of money in his hands, belonging to the succession which he administers, but he is forbidden from using them on 161 OF SUCCESSIONS. 16 » his private account, under the pain of dismissal and responsibility for all damages caused thereby. 3 L. 191 ; 3 A. 353. Art. 1142. — Curators of vacant succession and of absent heirs are bound to keep a book containing the accounts" of their administration, whicli they shall cause to be j'^'^'rojihcd at the beginning and at the end, each page to be numbered by the judge who has appointed them, or by his clerk, in which they shall state, in the order of their dates, the sums they may receive or pay for the account of the succession they adminis- ter, or the heir they represent ; and also the debts which the succession owes, according to their best information. Stat. 13 Mardi, 1837, p. 95. — ^ 3. All executors, administrators, curators and syndics, shall deposit all moneys heretofore collected by them as such, and all the moneys hereafter collected, as soon as the same shall come into their hands, in one of the chartered banks of this State or in one of their branches allowing interest on deposits, if there be one in the parish, and shall keep a bank book in his official name and char- acter, and shall on no account remove or withdraw said deposits or any part thereof, until a tableau of distribution shall be homologated, or un- less ordered by a competent court, and then only to pay such debts as may be ordered for payment ; and if any executor, administrator, cura- tor of a vacant succession or syndic, shall fail to comply with the pro- visions of this section, and proof shall be made thereof by any creditor or other person interested, which proof may be administered on simple motion after ten days' notice, which motion may be filed in the clerk's office at any time, then such executor, administrator, curator or syndic, shall be condemned jointly and severally with his security or securities, to pay to the use of the estate twenty per cent, per annum interest, on the amount not so deposited or withdrawn without order, besides all special damage suffered, and shall be dismissed from office as executor, administrator, curator or syndic, as the case may be. 1^ 4. Any creditor or other person interested, may at the regular sit- tings of the courts in New Orleans, and in the country, as well during the vacation as the sitting of the court having jurisdiction, file iu the clerk's office a motion to know whether any executor, administrator, cu- rator or syndic, has any funds ; and such executor, administrator, cura- tor or syndic, shall be bound within ten days to file a true statement of his account with the bank showing the amount of funds collected by him, and on failure so to do, such executor, administrator, curator or syndic, shall be dismissed from office, and pay ten per cent, per annum interest, on any sums for which he may be responsible. Art. 1143. — The exhibition of these books, thus kept by these cu- rators, may be ordered by the judge who has appointed them, as often as he shall thinly proper, or as he may be required to order it by a cre- ditor of the succession, or by the counsel of the absent heirs of the de- ceased. Art. 1144. — The curator of a vacant succession or of absent heirs, who wishes to absent himself from the State for a time that exceeds the 11 162 OF SUCCESSIONS. legal term of liis administration, must cause his place to be filled hy some other, and render an account of his administration to the judge who has appointed him ; otherwise he may be compelled to give security not to depart without rendering his account and paying the balance due, if there be any. 10 L. 435; 17 L. 537. Art. 1 145. — The curator, who only wishes to be absent for a time, ought not to lose his curatorship on that account : provided he leave with some person residing in the place, where the succession is opened, his general and special power of attorney, to represent him in all the acts of his administration as curator, and deposit an authentic copy of this power of attorney, before his departure, in the office of the judge who has appointed him. Stat. 24thA2]ril, 1847, p. 115.— -The article of the Civil Code eleven hundred and forty-five, that reads as follows, to wit : " The cui-ator who only wishes to be absent for a time, ought not to lose his curatorship on that account ; provided he leave with some person residing in the place where the succession is opened, his general and special power of attorney, to represent him in all acts of his administration as curator, and deposit an authentic copy of this power of attorney before his departure, in the office of the judge who has appointed him," be so amended as to read thus : Curators, administrators, tutors and testamentary executors, who only wish to be absent for a time, ought not to lose their administration of said successions on that account ; provided they leave with some per- son residing in the parish, or in an adjoining parish, where the succes- sion is opened, a general and special power of attorney to represent them in all the acts of their administration as curator, administrator, tutor and testamentary executor, and deposit an authentic copy of the power of attorney before his departure, in the office of the recorder of mortgages in and for the parish where said succession has been oi^ened, which power of attorney shall be duly registered. AiiT. 1146. — The curators of vacant successions and of absent heirs act in their names and quality, in all contracts or other proceedings, in which the succession or the heirs which they represent are interested, and appear, in all suits, in which they are obliged to act in that capacity, either as plaintifi's or as defendants. Art. 1147. — The powers of curators of vacant successions and of absent heirs, when the latter are all absent from and not represented in the State, extend to all the effects of the succession. Art. 1148. — The powers of curators of absent heirs, who only rep- resent some of the heirs of the deceased,- extend only to the portion which come to these heirs by the partition made of the effects of the succession. Until this partition is made, these curators have no other power over the effects of the succession than that which a co-proprietor has over the undivided property which he possesses in common with other per- sons. 10 E. 457. 163 OF SUCCESSIONS. 163 § 5. — Of the Causes for wJiich a Curator of a Succession may he dismissed or superseded. Am. 1149. — The curator of a vacant succession or of absent bcirs must be dismissed by the judge who has appointed him : 1. If he is unfaithful in his administration, or if it be proved that he has made use of moneys intrusted to him as curator for his privato account ; 2. If he absent himself for a time exceeding the legal term of hia administration, without having provided for his place being filled by an- other, and rendered his account; 3. If he absent himself for a time from the State without having left a special power of attorney with some one to represent him in his administration as curator, and the succession suffers any injury thereby ; 4. If the judge of the place where the succession is opened, orders him to produce his account book, which he ought to keep for the suc- cession, and ho refuses or neglects to obey this order. 2 L. 2Ge. Art. 1150. — The curator may be superseded by the judge who has appointed him : 1. If, three days after having been appointed curator, he refuses or neglects to give the security required of him by law ; 2. If, after his appointment, he has failed or obtained a respite from his creditors ; 3. If, in his administration, he commits any faults which prove his incapacity or negligence. Art. 1161. In those cases, in which the judge shall think there is reason to dismiss or supersede a curator of a vacant succession or of absent heirs, or shall be required to dismiss or supersede him by any party interested, he is bound to charge the counsel of the absent heirs to institute a suit to that eifcct before him, and the counsel is bound to institute it accordingly. The decision of the judge on this question is subject to an appeal, but may be previously executed notwithstanding the appeal. 2 L. 206 ; 10 E. 457. Ar-t. 1 1 52. — In all cases of appeal to the supreme court from the decisions relating to the administration of the property of minors, of per- sons interdicted, or of absent persons, the amount of value of the succes- sion or of the property administered, shall determine whether that court has jurisdiction or not. 8 L. 416. § 6. — Of the Sale of the Effects and of the Settlement of Succession* adminis- tered ty Curators. Art. 1 153. — When there are in a vacant succession, or a succession in which the heirs or part of them are absent from and not represented in the State, movable effects which arc perishable or costly to keep, the judge of the place where the succession is opened, can, before a curator 164 OF SUCCESSION'S is appointed, order the sale of them iu the form and manner hcreaftei prescribed. 19 L. 4G3. Art. 1154. — The curator is bound, in ton days after his appoint- ment, to demand that all the remaining movable effects and all the slaves not employed in the cultivation of land belonging to the estate, found in the succession intrusted to his administration, be sold. 5 L. 4CS. Art. 1 155.— With respect to real estate belonging to the succession, and slaves employed in cultivating it, the curator is bound to wait thirty- days after his appointment, before he demands the sale of them, in order that he may know, from the information he may get concerning the debts of the succession, if it be necessary to sell them in order to pay the debts. 10 E. 396 ; See 11 L. 149. Art. 1156. — At the expiration of the thirty days, if the amount of debts known is such that it is necessary to sell the whole or a part of the real estate and slaves employed in agriculture, which belong to the succession, the c.urator shall present his petition to the judge who has appointed him, to obtain an order for the sale of this property, or of such a part of it as may be necessary to pay the debts of the succes- sion. 10 E. S9G. Art. 1157. — This petition of the curator must be notified to the counsel of the absent heirs, and the judge, after having heard him, shall order the sale of all or such part of the real estate or of the slaves em- ployed in agriculture, which belong to the succession, as may appear to him necessary in order to discharge the debts ; and if the sale of the whole is not indispensable for this purpose, he shall order the sale of the slaves in preference to that of the real estate. 2 A. 966. Art. 1 158. — If it is not necessary to sell the property and the slaves engaged in agriculture, belonging to the succession, in order to pay the debts, they muist be preserved, and administered by the curator for the account of the absent heirs, until they present themselves or send their powers of attorney, or until the expiration of the time when the law re- quires them to be sold, as is prescribed hereafter. Art. 1159. — In all eases in which the sale is ordered of property belonging to vacant successions or to those of which anji- of the heirs are absent from and not represented in the State, the sale shall be made at public auction to the last and highest bidder, after the advertisements and publications required by law, to wit : ten days for movables, and thirty days for real estate and slaves. 1 N. S. 324 ; 4 L. 46T ; See S L. 321. Art. 1160. — If the succession which is administered by a curator, is insolvent, and the property is not sufficient to pay the debts which are known, the curator is bound to apply to the judge who has appointed him for an order for a meeting of the creditors of the succession, at the office of some notary, who shall be named for that purpose, in order to deliberate on the most advantageous manner of selling the effects of the euccession. 165 OF SUCCESSIONS. 165 Stat. 29th March, 1826, p. 140. — ^ 7. Whenever a succession shall have baen accepted under the benelSit of an inventory, and neither the beneficiary heir or heirs, their attorney in fact, tutor, or curator, will accept the administration and give the security required by law, and if after fifteen days' notice given by order of the judge, in the usual man- ner, no one presents himself to administer upon the said estate, on giving the security required, the judge of the court of probates shall order a meeting of the creditors of such succession to be held at the office of a notai-y public, for the purpose of electing syndics to administer the property of such succession : The same deliberation shall prevail in the choice of syndics in such cases, as in the choice of syndics to admi- nister estates ceded by insolvent debtors, and tlie property of such suc- cession shall be sold, disposed of, and administered according to the rules prescribed by this act, and the act to which this is a supplement, for the administration of estates so ceded, saving and reserving to the beneficiary heir or heirs all their rights and claims as creditors of such succession, and their rights to any surplus which may remain after paying the debts of the succession : Provided, that nothing herein con- tained shall be so construed as to apply to successions not amounting to the sum of five hundred dollars, for the summary settlement of which it is provided by the Civil Code. § 8. In all cases where the heirs of any person deceased shall have renounced his succession, it shall be tlie duty of the judge of the court of probates to order a meeting of the creditors of such succession to be held at the office of a notary public, for the purpose of determining upon what terms and conditions the property belonging to such succes- sion shall be sold, and appointing syndics to administer the same : The proceedings relative to the property of a succession so renounced, shall in all respects be conformable to those prescribed by this act, and the act to which this is a supplement, for the administration of property ceded by insolvent debtors. § 9. In all cases of cessions of property by insolvent debtors, and in all cases of renunciations of successions by the heirs, if there shall re- main a surplus after payment of all the debts, the same shall be paid over to the ceding debtor or debtors, their heirs or assigns, or to the heirs who have made the renunciation, their heirs or assigns, as the case may be. § 10. In all cases where the property of a succession shall be admi- nistered by syndics under the provisions of this act, the judge of the court of probates shall order to be paid such reasonable sum of money as to him shall appear proper for the maintenance of the heirs, being children of the deceased, for the period of one year, and until their claims against the succession shall be ascertained and paid. ^11. The judge who may order a meeting of creditors under the provisions of this act, and of the act to which this is a supplement, may direct such meeting to be held in ten days from the time of making such order, provided it shall be made to appear to the judge that the credit- ors residing in this State, but out of the parisli, are duly represented in said parish. T L. 812 ; IT L. 500 ; 19 L. 462 ; 12 E. 645. 166 OF SUCCESSIONS. Art. 1161. — This meeting shall be called by citation to the creditors who reside in the State, in ten days, if all the creditors reside within the jurisdiction of the judge who grants the order, and in thirty days, if any of them reside out of his jurisdiction. Art. 1 162. — Notice of the meeting shall besides be given by adver- tisements in the usual places, and publications in the newspapers in the cases required by law ; and if there be creditors absent from the State, there shall be appointed a counsel to represent them in the meeting of the creditors, and in the acts which may grow out of it. Art. 1 163. — If, at the meeting of the creditors thus assembled, the creditors by privilege or mortgage require that the sale of the effects be made for cash, their wish, in this respect, shall prevail over that of the other creditors. But as to the ordinary creditors, if a majority of them in amount or in number, if their debts on the one side and on the other are equal, wish that the sale be made on certain terms of credit, the opinion of this majority prevails. 5 Pv. 96 ; 10 E. 45T ; C. P. 990, 992, 995. Art. 1164. — When the creditors have thus given their opinion, the curator shall deposit a copy of the proceedings at the court of the judge who has ordered the meeting, and demand the homologation of them. 2 A. T82 ; See 11 L. 153. Art. 1165. — The judge, on homologating the proceedings, is bound to order to be sold for cash so much of the property of the succession as will be sufficient to pay the creditors by privilege or mortgage, with interest and costs, if they require the sale to be thus made. But with regard to the excess of the price of the sale of the property above the sum necessary to pay the privilege and mortgage creditors, the judge shall grant such terms of credit, and exact such security for the payment as the majority of the ordinary creditors shall have deter- mined upon, as is before said. Art. 1 1 66. — In case of a vacant succession, or of a succession of which all or a part of the heirs are absent from and not represented in the State, when the succession is administered by a curator, the creditors are not permitted to appoint syndics under the pretext that the succes- sion is insolvent, the curator supplying the place of syndic in this respect. 13 L. 5S; See amendment to Art 1160, § T. Art. 1167. — The curator of a vacant succession or of absent heirs cannot pay the debts of the succession, save some privileged debts ex- cepted by law, until three months after the succession is opened, and only in the manner prescribed in the following articles. 8L. 360; 19 L. 462; 12 E. 511. Art. 1 1 68. — When the time for the payment of the debts of the succession is arrived, if the curator has sufficient funds to pay all the creditors who have presented themselves or made themselves known, with interest and costs, he is bound to present his petition to the judge 167 OF SUCCESSIONS. 167 who has appointed him, to be authorized to pay the creditors according to a statement which he shall annex to his petition, mentioning the names and places of residence of the creditors, and the several sums due to each. 1 A. 92 ; 2 A. 895 ; 19 L. 462 ; See S L. 506 ; 8 R. 121 ; 12 E. 8S, 511. Art. 1 1G9. — If, on the contrary, the curator has not sufficient funds to pay all the creditors of the succession, he shall annex to his petition a tableau of the distribution which he makes of the funds in his hands among the creditors, according to the order of their privileges and mort- gages, or by contribution among the ordinary creditors, and shall con- clude witli a prayer to be authorized to pay them according to this tableau. 19 L. 462 ; 1 A. 92 ; 2 A. 895 ; See 8 R. 121 ; 12 R. 83. Art. 1170. — The curator shall include in the statement of pay- ments or tableau of distribution the creditors whose debts are not yet liquidated, for the amount by them claimed, saving the right of retain- ing in his hands the sums for which they are placed on the statement or tableau, until it be determined by a final judgment what is due them. 2 A. 895; 19 L. 462. Art. 1 171. — If it be proved to the judge by the oath of one or two credible witnesses that there are absent creditors who, from the distance of their place of residence, have not had time to make themselves known, the judge shall order the curator to include these creditors among those who are to be paid, for the sums declared to be due by such witnesses. Art. 1172. — The judge to whom the curator shall apply to be au- thorized to pay the creditors according to the statement or tableau which he has presented, shall order that public notice be given of this request by advertisements at the usual places and publications in the newspapers, in the cases prescribed by law, requiring all those whom it may concern, to make opposition, if they think fit, in ten days from the day in which such notice is given, to the application being granted. 6 L. 223 ; 19 L. 462 ; See 8 R. 1 21. Art. 1173. — If no opposition be made within the time before men- tioned, the judge shall grant to the curator the authorization he has requested, and the curator shall proceed immediately to pay, according to this authorization, all the creditors whose debts are liquidated or acknowledged. With respect to those creditors whose debts are not liquidated, he shall retain in his hands the sums for which they have been placed upon the statement or tableau, until the amount due is settled by a definitive judgment. Art. 1 174. — If, on the contrary, opposition be made to the granting of the authorization applied for, the judge shall determine thereon in a summary manner. Art. 1175. — If the decision of the judge thereon be appealed from, the curator is bound to retain a sufficient sum to satisfy the claims on which the opposition is made, with interest and costs, but cannot, under the pretext of this appeal, refuse to distribute among the creditors, 168 OF SUCCESSIONS. whose debts or privileges are not contested, the surplus remtiiniug after this sum being retained. Art. 1 176. — If, after the creditors of the succession have been paid by the curator, in conformity with the dispositions of the preceding articles, creditors present themselves who have not made themselves known before, and if there does not remain in the hands of the' cura- tor a sum sufficient to pay what is due them, in whole or in pai-t, these creditors have an action against those who have been paid, to compel them to refund the proportion they are bound to contribute, in order to give the new creditors a part equal to that which they would have re- ceived had they presented themselves at the time of the payment of the debts of the succession. But this action on the part of the creditors who have not been paid, against the creditors who have been, is prescribed by the lapse of three years, counting from the date of the order or judgment, in virtue of which the judgment has been made. In all these cases, the creditors who have lately presented them- selves, can in no manner disturb the curator on account of the payments he has made under the authorization of the judge, as before stated. 5 L. 468 ; 12 K. 50T ; 4 A. 834 ; 5 A. 8S. Art. 1177. — Notwithstanding the provisions of the preceding arti- cles, curators of vacant successions are bound, as soon as they have suf- ficient funds in hand, and without any delay, to pay the funeral expenses, costs of court, and the expenses of the last sickness of the deceased, or other debts, the payment of which cannot be retarded, provided the accounts of these charges be approved by the judge who appointed them, and an order be given him for their payment. Art. 1 178. — If a succession is so small or is so much in debt that no one will accept the curatorship of it, the judge of the place where the succession is opened, after having made an inventory of the cflFects composing it, shall sell it and apply the proceeds thereof to the payment of the debts of the deceased, in the same manner as a curator would have done, had one been appointed. Stat.. 17, January, 1838, p. 5. — § 1. — That the article eleven hun- dren and seventy-eight of the Civil Code of the State of Louisiana, be so amended that whenever satisfactory proof shall have been made to any judge of the court of probates, that a succession is so small, or is so much in debt, that no person will apply for, or be willing to accept the curatorship, on complying with the existing laws on this subject, the judge of the court of probates where such succession is opened, shall have the power without any previous notice or advertisement to confer the curatorship of such succession on such person as he may think pro- per. That the curator so appointed, shall cause the effects of said suc- cession to be sold, and the proceeds to be applied to the payment of the debts of the deceased ; the whole to be done in as summary a manner as possible, to diminish costs, and under the immediate direction of the judge of the court of probates ; such curator to be allowed a reasonable compensation for his services ; and shall not be compelled to furnish bond and security, except in cases where the judge shall deem it neces- sary, and that in all cases the judge of the court of probates shall fix v-he compensation of the curator, and the amount of security, when he 169 OF SUCCESSIONS. - 16S requires it, provided that this law shall not apply to successions amount- ing to upwards of five hundred dollars. 12 L. 118; IE. 559. § 7. — Of the Account to he rendered h/ the Curators^ and the Commission due to them. Art. 1179. — The time for the administration of the curators of va- cant successions or of absent heirs, when these heirs have not appeared or have not sent their powers of attorney to claim the succession, is fixed at one year from tlie day of their appointment. But the administration may be continued beyond this term as is hereafter prescribed. Stat. 13, March ^ 1837, p. 96. — i^ 7. — All executors, administra- tors, curators, and syndics, shall continue in office until the estate shall be finally wound up, any law to the contrary notwithstanding; j>^'ovided that any creditor or person interested, shall have the right to require that such executor, administrator, or curator, sliall give new or addi- tional security for the faitliful performance of his duties, as often as once in every twelve months, and oftener if the court, on motion to that eff"cct, may judge it to be necessary to the interest of the estate or the creditors so to do. 5 N. S. 419 ; 1 A. 92. Art. 1180. — The duties of curators cease even before tlie term fixed for their administration, when the heirs or other persons having a right to the succession administered by them, present themselves or send their powers of attorney to claim the succession. 4 L. 565 ; 3 N. S. 601 ; 8 N. S. 293. Art. 1 181. — When the heirs, or other persons having a right to the succession, present themselves, or send their powers of attorney to claim it, they are bound to cause themselves to be recognized as such, and shall be put into possession by the judge of the place where the succession is opened, after having cited the curator who has been ap- pointed for the succession. 9L. 281; 11 L. 179; Sec 4 R. 42. Art. 1182. — As soon as the heir or his attorney in fact lias been thus put into possession of the succession or of the effects claimed by him, the curator is bound to render a faithful and exact account of his administration to him, and to pay the balance due, deducting a commis- sion of two and a half per cent, on the amount of the effects of the suc- cession, or of the portion by him administered, according to the inven- tory, not taken into the estimate the bad debts. 3 N. S. 463 ; Seo 12 L. 60S. Art. 1183. — When the heirs do not present themselves nor send their powers of attorney to claim the succession, it is the duty of all the curators of vacant successions or of absent heirs, one year after their nomination, to render an account of their administration to the judge, at the instance of the counsel of the absent heirs. 170 OF SUCCESSIONS. AiiT. 1 184. — When the balance of the account thus rendered by cu- rators has been determined by a final judgment, they are bound, within thirty days from the date thereof, to pay the same into the hands of the treasurer of the State, who shall deliver to them duplicate receipts, making mention of the sum received, and the name of the succession or heirs on whose account it has been paid. Art. 1185. — It is the duty of the judge who has thus definitively fixed the balance due by curators of vacant successions and of absent heirs, within fifteen days at farthest, from the date of the judgment thereon rendered, to address a copy thereof to the treasurer of the State, in order that this officer may know the amount to be paid into his hands. The judge shall therefore allow in the accounts of these curators, the costs to be incurred for the copy of the judgment to be addressed to the treasiu'er of the State, and that which is to be delivered to the cura- tor to authorize him to pay the balance due. Art. 1186. — The curator who has paid the balance of his account into the hands of the treasurer of the State shall deposit one of the receipts delivered to him in the court of the judge, and it is only on the exhibition of this receipt that he can cause himself to be discharged from his administration by the judge, and obtain a release of the security or mortgage he has given for his administration. Art. 1 187. — If, at the rendition of this account by the curator to the judge, at the end of the year after his appointment, the judge be satisfied that the succession is entirely settled, and that it is not neces- sary to prolong the administration, he shall allow the curator a commis- sion of two and a half per cent, on the amount of the inventory of the eff'ects of the succession, or of the portion by him administered, deduct- ing the bad debts. 12 L. 60S; 3 A. 624; See5 N. S. 229 ; 3 L. 464 ; 4 A. 3S6; Arts. 1062, 11S8, 1676. Art. 1 188. — But if it appears to the judge that the succession is not entirely settled, and that it will be necessary to prolong the administra- tion, he shall only allow the curator the commission of two and a half per cent, on the sums received or recovered by him during his adminis- tration. 3 A. 621 Art. 1 1 89. — The commission allowed to curators of vacant suc- cessions and of absent heirs, is calculated on the whole amount of the effects of the succession, deducting bad debts, if the succession is va- cant, or if all the heirs are absent from, and not represented in, the State. But when there are only some of the heirs who are absent from, and not represented in, the State, the commission allowed to the curator is calculated on the portion of the eff'ects of the succession coming to those heirs according to the estimate in the inventory, deducting bad debts. 5 N. S. 62, 228. 171 OF SUCCESSIONS 171 Art. 1 190. — If there are two curators to tlie sarae vacant succession or the same absent heirs, they divide the commission, and no augmenta- tion thereof can, under any pretence, be allowed. Art. 1191. — When a vacant succession, or one of which the heirs or part of them are absent from, and not represented in the State, has been definitively settled, if there remain in the hands of the curator any titles or papers belonging to the succession or the heirs, the judge shall order them to be deposited in court, in order that they may be delivered to the heirs or their attorneys in fact. Art. 1192. — The funds of vacant successions or absent heirs, paid into the treasury of the State, remain in deposit, until claimed by the heirs of those having a right to them. These funds may be made iise of, but their reimbursement is provid- ed for and guaranteed on the faith of the State, so that the heirs who present themselves, shall meet with no delay in receiving theof. 8 A. 855. Art. 1 193. — If, after the payment into the hands of the treasurer of the State, and the discliarge of the curator, any one presents him- self, having the right to claim the succession or the payment of any debts due him by the deceased, such heir or creditor must cause his quality to be recognized, or his debt to be liquidated before the judge of the place where the succession has been opened, after having cited the counsel of the absent heirs. Art. 1 194. — If the demand of the person claiming the succession or the portion of it administered by the curator, be established by a judgment, the treasurer of the State shall pay to such person, on his exhibiting an authentic copy of the judgment, the amount belonging to the succession deposited in the treasury. Art. 1195. — If it be a mere debt claimed by one of the creditors of the succession, the treasurer of the State shall pay the amount there- of to the creditor out of the funds deposited in the treasury belonging to the succession, on the exhibition of an authentic copy of the judg- ment establishing his debt, as is before said. Art. 1196. — If curators of vacant successions or of absent heirs ne- glect, during three months from tlie date of the judgment rendered on their accounts, to pay the balance into the hands of the treasurer of the State, it is his duty to denounce them to the attorney-general or district attorney of the place of their residence, who is bound to sue them and their securities to compel the payment of this balance, with interest from the day on which they were bound by law to make such payment. 3 A. 855. 172 OF SUCCESSIONS. § 8. — Of the Duties of Curators, whose Administration is 2^rolonge(l ieyond the Legal Terra. Art. 1197. — If, at the expiration of the year after the curator of a a vacant succession or of absent heirs has been appointed, the affairs of the succession are not settled, the judge ma_y, if he thinks the interest of the succession requires it, prolong the administration for one year more, and thus from year to year during five years from the opening of the succession. 9 L. 2S1 ; 3 K. 351 ; See 12 K. 507. Art. 1198. — Though the administration of the curator be prolong- ed, he is not the less bound to render his account every year to the judge, and to pay the balance iu his hands to the treasurer of the State, according to the provisions contained in the preceding paragraph. 9 L. 281. Art. 1 199. — The judge who prolongs the administration of a vacant succession or of absent heirs beyond a year, is bound, every year of the prolongation thus granted, to exact from the curator a renewal of the security which he has given for the fidelity of his administration. But in this case the judge cannot require from the curator security for more than one-fourth beyond the estimated value of the property left under his administration. Art. 1200. — The curator whose administration has been prolonged, has the right, on the account which he renders each year of his adminis- tration, to deduct a commission of two and a half per cent, on what he has received or recovered during the preceding year. Art. 1201. — If the curator of a vacant succession or of absent heirs, who has been first appointed, will not continue to act, or if he dies, ab- sents himself, or is, by other means, prevented from performing his duties, the judge of the place where the succession is opened, may, if he thinks it necessary to the interests of the succession, appoint another curator to finish the settlement of the estate. In this case the appointment must be made according to the same rules as are prescribed for the appointment of curators of vacant suc- cessions and absent heirs, and these new curators have the same duties to perform and enjoy the same rights as the curator, whose administra- tion is prolonged beyond the year. Art. 1202. — If, at the expiration of a year from the appointment of a curator of a vacant succession or absent heirs, there be real estate or slaves belonging to the succession, which have not been sold, the judge is bound, on the request of the curator, to order the sale of them to be made at public auction, at the periods and after the advertisements and publications prescribed by law, at one or two years credit, and with the proper securities. Instead of " one ' or' two years credit," read " one ' fljid' two years." See French test Art. 1203. — Before proceeding to this sale, the judge is bound to cause the property to be disposed of according to the preceding article 173 OF SUCCESSIONS. 173 to be estimated by experts by him appointed and sworn, and if, at the sale, two-thirds of the estimated value be not offered for it, the sale shall be suspended, and the curator is bound to have it again exposed, after the same time of notice, advertisements and publications prescrib- ed by law, at one, two, and three years' credit ; but then the property must be sold at the price offered. § 0. — Of the, Afpointment of Counsel of Absent ITeirs^ and of their Duties. Art. 1 204. — On the opening of a vacant succession, or of one of which the heirs or part of them are absent from and not represented in the State, it is the duty of the judges who have inventories to make of the effects of these successions, to appoint a counsel to the absent heirs to assist at these inventories. 11 L. 149 ; 12 L. 73 ; 15 L. 6G, 527 ; 18 L. 570. Art. 1205. — The counsel to the absent heirs, who is appointed by the judge of the place where the succession is opened, must, if possible, be an attorney admitted to practise in the courts of this State, and it is his duty to represent the absent heirs, not only in the inventory, but in all the acts required by law to be done. 5 L. 472. Art. 1206. — The counsel appointed by the judge must, imn-.odiately after his appointment, search among the papers of the deceased, and get all the information he can, to assure himself of the place of birth of the deceased, and where his heirs reside, in order to correspond with them and give them notice of the death of the deceased, of the name and resi- dence of the curator appointed to bis succession, and the state in which his affairs are left. Art. 1207. — If, in the interval between the opening of the succession and the appointment of the curator, there are any conservatory acts to be performed, or suits to be instituted, the delay of which may injure the succession, the counsel of the absent heirs shall be authorized to per- form such acts, or institute such suits before any court, on proving his appointment by the certificate thereof under the seal of the court which has appointed him. 5 N. S. 11. Art. 1208. — When a suit has been instituted by the counsel of the absent heirs of a succession, in conformity with the provisions of the preceding article, and judgment has not been rendered therein at the time the curator is appointed, the curator shall not be obliged to recom- mence the suit, but may continue it as it is, substituting his name for that of the counsel of the absent heirs, who has commenced it. 8eo 1 N. S. 039. Art. 1209. — The counsel of the absent heirs cannot, if he be an at- torney, be engaged in any suit against the heirs whom he represents, as 174 OF SUCCESSIONS. long as the succession, to which these heirs have a right, is administered by a curator judicially appointed. Art. 1210. — The counsel of the absent heirs shall continue to act as such until the heirs present themselves or send their powers of attor- ney to claim the succession, or until the curator is finally discharged. 6 L. G53 ; IS L. 570 ; 1 E. 514. Art. 1211. — Nevertheless, the counsel of the absent heirs may cause himself to be discharged by the judge who has appointed him, if he is prevented, by any good cause, from performing the duties thereof. 1L.45. Art. 1212. — If the counsel of absent heirs dies, absents himself or is discharged, the judge is bound to appoint another counsel of absent heirs in his stead. Art. 1213. — The counsel of absent heirs have a right to receive fees or emoluments proportioned to the pains taken in the performance of their duties, out of the funds of the succession of which they represent the heirs, but those fees or emoluments shall not be granted to them, except on proof being made of the services by them rendered, and of the value thereof, after having cited the heirs, if they present themselves, or the curator appointed to the succession in whicli these heirs have rights. 4 L. 434. CHAPTER VIII. OF partition, and of the collation of goods. Section I. — Of the Partition of Sticcessions. § 1. — Of the Nature of Partition, and of its Several Kinds. Art. 1214. — When a person, at his decease, leaves several heirs, each of them becomes an undivided proprietor of the effects of the succession, for the part or portion coming to him, which forms among the heirs a community of property, as long as it remains undivided. 5 A. 561. Art. 1215. — No one can be compelled to hold property with an- other, unless the contrary has been agreed upon ; any one has a right to demand the division of a thing held in common, by the action of peti- tion. The last word of this article should evidently be '■^partition ;" See French text ; See 3 K. 48. Art. 1216. — The partition of a succession is the division of the effects, of which the succession is composed, among all the co-heirs, ac- cording to their respective rights. Art. 1217. — Partition is voluntary or judicial : It is voluntary, when it is made among all the co-heirs present and of age, and by their mutual consent ; It is judicial, when it is made by the authority of a court, and accord- ing to the formalities prescribed by law. 8 L. 262 ; 10 L, 454 ; See 11 M. 443. 175 OF SUCCESSION'S. 175 Art. 1218. — Every partition is either definitive or provisional : Definitive partition is that which is made in a permanent and irrevo- cable manner ; Provisional partition is that which is made provisionally, either of certain things before the rest can be divided, or even of every thing that is to be divided, when the parties are not in a situation to make an irre- vocable partition. Art. 1219. — By definitive partition is also understood the judicial partition, made according to law; and by provisional partition, tliat in which the formalities prescribed by law have not been observed, or that by which the parties are not definitively bound. 7L. 156; See 11 L. 494. Art. 1220. — It cannot be stipulated that there never shall be a par- tition of a succession or of a thing held in common. Such a stipulation would be null and of no efi'ect. Art. 1221. — Nevertheless, the co-heirs can agree that there shall not be a partition of the eifects of the succession for a certain limited time, and such an agreement will be valid ; but it will be assimilated in this case to a contract of partnership between the heirs, and subject to the same rules. Art. 1222. — A donor or testator cannot order that the efi'ects given or bequeathed by him to two or more persons in common, shall never be divided, and such a prohibition would be considered as if it were not made. Art. 1223. — But a donor or testator can order that the efi'ects given or bequeathed by him, be not divided for a certain time, or until the happening of a certain condition. But if the time fixed exceed five years, or if the condition do not happen within that term, from the day of the donation or of the open- ing of the succession, the judge, at the expiration of tliis term of five years, may oi^der the partition, if it is proved to him that the co-heirs cannot agree among themselves, or difi"er as to the administration of the common efi'ects. Art. 1224. — If the father or other ascendant orders by his will that no partition shall be made among liis minor children or minor grand- children inlieriting from him, during the time of their minority, this pro- hibition must be observed, until one of the children or grandchildren comes of age, and demands tlie partition. Art. 122.5. — There is no occasion for partition, if the deceased has regulated it between his lawful heirs, or strangers ; and in such case, the judge must follow the will of the testator. The same thing takes place where the testator has assigned distinct parts of the estate for the paternal legal portion of his children. Art. 1226. — There can be no partition, when the use of the thing held in common is indispensable to the co-heirs, to enable them to en- joy, or to derive an advantage from the portion of the efi'ects of the suc- cession falling to them, such as an entry which serves as a passage to 176 OF SUCCESSIONS. several liouses, or a way comiuon to several estates, and other things of the same kind. AiiT. 12-27. — The action of partition cannot be proscribed against, as long as the thing remains in common, and sucli community is acknow- ledged or proved. Thus, though co-heirs have enjoyed their hereditary effects in com- mon for an hundred years and more, without making a division, any of them can, at any time, sue for a partition. 3 L. 459. Art. 1228. — When one of tlie heirs has enjoyed the whole or part of the succession separately, or all the co-heirs have possessed each a portion of the hereditary effects, he or they wlio have thus separately possessed, can successfully oppose the suit for a i)artition of the effects of the succession, if their possession has continued thirty years without interruption. 2 A. 4S6, 749. Art. 1229. — If there be but one of the heirs, who has separately enjoyed a portion of the effects of the succession during tiiirty years, and all the other heirs have possessed the residue of the effects of the succession in common, the action of partition among the latter will al- ways subsist. 2 A. T49. § 2. — Among what Persons Partition can he sued for. Art. 1230. — A partition may be sued for by any heirs, testamentary or ah intcstato. It can also be sued for by any universal legatee or legatees under an universal title, and even by a particular legatee, when a thing has been bequeathed to him in common with two or several persons. 8L.12S; 17L. 34G; C. P. 1020. Art. 1231. — The action of partition will not only be between co- heirs and co-legatees, but between all persons who hold property in com- mon, from whatever cause they may hold in common. 3 L. 12S ; 7 L. 440 ; 17 L. 340. Art. 1232. — It is not indispensable to be holder in common in or- der to be able to su})port tlic action of partition ; possession alone, when it is lawful and jjroceeds from a just title, will support it. Tlius, usufructuaries of the same inheritance can institute among themselves the action of partition. Art. 1233. — But the possession, necessary to support this action, must be in the names of the persons enjoying it, and for themselves ; it cannot be instituted by those who possess in the name of another, as tenants and depositories. Art. 1234. — Partitions cannot only be sued for by the majority of the heirs, but by each of them, so that one heir alone can force all the rest to a partition at his instance. Art. 1235. — Tutors of minors, and curators of persons interdicted have the right to institute in their names suits for the partition of the effects of successions, whether movable or immovable, falling to minors 177 OF SUCCESSIONS. 177 or persons intcvtlictccl, provided they are specially authorized by the judge on the advice of the family meeting. 10 L. 454; 11 L. 439; 2 A. 553. Art. 123G. — Minors above the age of puberty, and those who are emancipated, can, with the same authorization and with the assistance of their curators, ad lites, sue for the partition of estates in which they are interested. 9 L. 567 ; 2 A. 553 ; Sec Art 862. Art. 1237. — But the authorization of the judge is not necessary to enable tutors or curators of minors or persons interdicted, or minors above the age of puberty, or emancipated, to answer to suits for partition brought against them. Art. 1238. — With regard to the absent co-heirs, the curators who have been appointed to them, or the relations who have been put into possession of their eflects, can sue or be sued for a partition, as repre- senting in every respect the absent heirs. 2 A. 466. Art. 1239. — Married women, even if they be separated in estate, cannot institute a suit for partition without the authorization of their husbands or of the judge. But no authorization is necessary, if they are separated from bed and board, or divorced from their husbands. Art. 1240. — The husband can, without the concurrence of his wife, cause the definitive partition of the movable effects of the succession falling to her, if, b}' the marriage contract, her present and future ef- fects are settled on her as dowry. But in such case he cannot, without the concurrence of his wife, compel the definitive partition of the immovable property of a succes- , sion falling to her, and which forms part of her dowry. Any partition thus made will be merely provisional. But the co-heirs, of whom the partition is demanded, can render it definitive by making the wife a party to the suit for partition. On the other hand, the co-heirs of the wife cannot compel her to a partition without making her and her husband a party to the suit. 2 K. 1. Art. 1241. — Not only the co-heir himself, but the heirs of that co- heir, and anj' other successor can compel a partition of the estate, and be themselves compelled to make it. Art. 1242. — The right given by the ancient laws to the heirs of a deceased person, to compel the assignee or purchaser of a portion of the succession sold by their co-heirs to retrocede it to them for the price paid for it, is repealed. Art. 1243. — It is not necessary, to support the action of partition, that the co-heirs, or the party commencing it, should be in actual pos- session of the .succession or of the thing to be divided ; for among co- heirs and co-proprietors, it is not the possession but the property, which is the basis of the action. Art. 1244. — It follows from the provisions of the preceding article that the partition can be demanded, even though one of the heirs should 12 178 OF SUCCESSIONS. have enjoyed some part of the estate separately, if there has been no act of partition, nor possession sufficient to acquire prescription. ^ 3. — In what Manner the Judicial Partition is made. Art. 1245. — If all the heirs arc of age and present or represented, the partition may be made in such form and by such an act as the par- ties interested agree upon. 8L.128; SeeSN.S. 409. Art. 124G. — If, on the contrary, all the heirs are not present, if there be among them minors or persons interdicted, or if all the heirs of age and present do not agree to the partition or on the manner of ma- king it, it shall be made judicially and in the form hereafter prescribed. 6 L. 4T3 ; IT L. .346 ; C. P. IIG, 904. Akt. 1247. — Every judicial jDartition shall be preceded by an inven- tory, in which the effects to be divided shall be appraised, according to the form prescribed for public inventories. 2 A. 553 ; 2 N. S. 1 ; 5 N. S. 551. Art. 1248. — The public inventory, which may have been made b}' the parties interested at a time not exceeding one year previous to the suit for a partition, shall serve as the basis of the partition, unless one of the heirs demands a new appraisement, and proves that the effects mentioned in the inventory have not been estimated at their just price, or at the value they have acquired since the date of this act. 14 L. 272. Art. 1249. — In this case the judge is bound to order a new ap- praisement of the effects to be divided, which shall be made by experts appointed by him to that effect, and duly sworn by the notary, who is appointed to make the 2:»roces verbal of the appraisement. Art. 1250. — The action of partitition and the contestations which may arise in the course of proceedings, are to be brought before the judge of the place where tlie succession is opened, though one of the parties interested may have his domicil out of tlie jurisdiction of tlie judge. 2 A. 329. Art. 1251. — The judge, before whom the action of partition is brought, is bound to pronounce thereon in a summary manner, by which is always meant, with the least possible delay, and in preference to the ordinary suits pending before him. Art. 1252. — The suit for partition ought to be instituted by the heir who wishes the division ; the co-heirs or their representatives must be cited, in order that the partition may be ordered, and the form there- of determined, if there should be any dispute in this respect. 3 L. 12S ; 17 L. 349 ; 19 L. 30 ; 4 A. 50, 200 ; See 10 L. 157 ; C. P. 1024. Art. 1253. — He who sues another for a partition of the effects of a succession, confesses thereby that the person against whom the suit is brought, is an heir. Art. 1254. — If a partition is to be made among the children or de- scendants of the deceased, and one of the heirs alleges that his co-heir isj bound to collate a piece of real property, which has been given him by 179 OF SUCCESSIONS. 17S the (leceasctl, and ro [uires that his co-heir should decide on the manner in which lie wishes to make this coUation, the judge, if it be proved that the co-heir is bound to colhite the property, shall order that the donee decide thereon, within a term to be fixed by tlie judge, which cannot ex- ceed three days from the day on which the order has been notified to him, if he or his representative is found in the place. Art. 1255. — If the donee, who is bound to collate a piece of real estate given him by the deceased, declare within the term fixed, as afore- said, that he will return it in kind, the property, from that instant, be- comes united to the other efi"ects of the succession which is to be divided. Art. 125G. — But if the donee declare that he will not return the real estate, which has been given him, but will take his share in the effects of the succession, after deducting the value of such real estate, or if he permits the term granted to him to make his decision, to expire, without deciding on the manner in which he will make his collation, he shall lose the right of returning this property in kind. Art. 1257. — Whether the donee has decided that he will collate in kind or by deduction, the co-heirs, to whom the collation is due, have the riglit, as soon as the donee has decided thereon, to require and ob- tain an order that the property subject to the collation be appraised, as is prescribed in the following section, in order that it may be included among the effects to be divided for the sum at which it is appraised. Art. 1258. — All points, arising before the judge having cognizance of the suit for partition on the manner of making the collation or other operations relating to the partition, being merely incidental to the suit, shall be decided on the simple motion of the party interested in haviuf^ them decided, the same being duly notified to the otlier heirs or their attorneys, and a reasonable time being granted to answer thereto. Art. 1259. — The judge who decides on a suit for a partition and on the mode of eflFucting it, has a right to regulate this mode as may appear to him most convenient and most advantageous for the general interest of the co-heirs, in conformity, nevertheless, with the following provisions. 11 L. 439; 5A,20S. Art. 12G0. — Each of the coheirs may demand in kind his share of the movables and immovables of the succession ; but if there are cred- itors who have made any seizure or opposition, or if a majority of the co- heirs are of opinion that the sale is necessary in order to satisfy the debts and charges of the succession, the movables shall be sold at public auc- tion, after the usual advertisements. Stat. 28th March, 1832.—^ 1. Whenever two or more persons shall be co-proprietors of one continuous tract of land situated partly in dif- flfercnt parishes, any one ormore of said co-proprietors may institute an action for partition of the whole of said tract in any one of s\ich pari.'^hcs. ^ 2. In all judicial partitions where the property is divided in kind, the mortgages, liens and privileges existing against one of the co-pro- prietors shall, by the mere fact of the partition, attach to the share al- IgO OF SUCCESSIONS. lotted to him by the partition, and cease to attach to the shaies allotted to his co-proprietors : Provided^ liowcvcr, that if any return of money be required to be made to any co-proprietor -whose share is mortgaged or otherwise encumbered, by reason of the share allotted to him being of less value than the other shares, then such sums of money shall remain in the hands of the parties bound to contribute it respectively, shall be secured by mortgage on their respective shares, and be subject to the demand of those creditors of their co-proprietor who possessed mortgage or privileged claims against him, and according to the rank and priority of said creditors. 11 L. 430. Art. 1261. — "When the property is indivisible by its nature, or when it cannot be conveniently divided, the judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law, and in the manner hereinafter prescribed. 11 L. 439 ; 1 R. 512 ; 3 E. 43 ; 2 A. 553. Art. 1262. — It is said that a thing cannot bo conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it. Art. 1263. — When the eifects of a succession are to be sold, in order to effect a partition, if all the heirs of the deceased are absent, minors or interdicted, the judge may, at the instance of the tutors and curators of these heirs, and on the advice of the meeting of the family of those of the heirs who are minors or interdicted, order the sale to be made on certain terms of credit and on proper security, unless the payment of the debts of the succession require that the sale be made for cash. Art. 1264. — If there be, among the heirs of the deceased, any who are of age and present, and who demand that the sale be made for cash, it shall be made for cash, for a sufficient sum to cover the portion com- ing to them, and on a credit for the balance, on the terms prescribed by the other heirs. But on the partition of the proceeds of the sale, the whole amount shall be reduced to its cash value, by deducting from the whole sum to be paid, ten per cent. y;er annum, and those heirs who require their por- tion in cash, shall receive it on the whole amount thus reduced. Stat. 2Sth April, 1853. — No. 190. An Act to amend Article one thousand two lamdrcd and sixty -four of the Civil Code. — Be it enact- ed by the Senate and House of Representatives of the State of Louisia- na, in General Assembly convened, That article one thousand two hun- dred and sixty-four of the Civil Code be, and the same is hereby amend- ed, so as to read as follows, to wit : If there be among the heirs of the deceased, who are of age and present, and who demand that the sale be made for cash, it shall be made for cash, for a sufficient sum to cover the portion coming to them, and on a credit for the balance on the terms prescribed by the otlier heirs. But, on the partition of the proceeds of the sale, the whole amount shall be reduced to its ca&h value, by deducting from the whole sum to 181 OF SUCCESSIONS. 181 be paid eight per cent, per annum, and those heirs who require their portion in cash shall receive it on the whole amount thus reduced. 1 A. 212. AuT. 1265. — Any co-heir of age, at the sale of the hereditary effects, can become a purchaser to the amount of the portion owing to him from the succession, and he is not obliged to pay the surjilus of the purchase money over tlie portion coming to him, until this portion has been de- finitively fixed by a partition. See amendment to Art 1139 ; 14 L. Ill ; 19 L. .5.57 ; 3 R. 439 ; 4 R. 87 ; 12 R. 666 ; 2 A. 412 ; 5 A. 20>. Art. 12G6. — The minor co-heirs may also become purchasers of the hereditary effects, by the intervention of their tutors or curators, or by their assistance, if they have been specially authorized thereto by the judge, with the advice of the family meeting. Art. 12G7. — "When the judge has ordered the partition, and regu- lated the manner in which it shall be made, as well as the collations, if the case require it, he shall refer the parties to a notary appointed by him to continue the judicial partition to be made between them. 1 R. 512. Art. 1268. — If the heirs who have instituted the suit for partition be of age, and present, and the judge has fixed the mode of making it, whether in kind or otherwise, nothing shall prevent the heirs from con- tinuing their partition amicably and in the manner they think proper. § 4. — HoiD the Notary is hound to j>i'occed in the Judicial Partition. Art. 1269. — The notary appointed to make the partition is bound, within fifteen days at farthest from the notice of his appointment, to notify the heirs or their representatives, in writing, of the day, hour, and place in which he is to commence his work, sufficient time previous thereto, t6 enable them to attend, if they think proper. 4L. 59; 16 L. 157. Art. 1270. — As the business of partitions sometimes requires several days, the notary may divide his proces-verbal, and make as many vaca- tions or sittings as he thinks proper. lie can even defer the closing of it, if one of the parties re(iuires it, in case any contestation arise on the manner of effecting it, and it becomes necessary to refer to the judge to have them terminated before proceeding further. Art. 1271. — On the day appointed for the partition, the notary shall begin by settling the accounts which each of the heirs may owe to the succession. 6 A. 561. Art. 1272. — The notary shall include in these accounts: 1. The sums which each of the co-heirs owes to the deceased; 2. Those which each of the coheirs may have received or disbursed on account of the succession, whether for the payment of debts or for necessary and useful expenses on the effects of the succession ; 182 OF SUCCESSIONS. 3. Those •nliicli each of the co-heirs may ovrc by reason of damages or injur}', which have been caused by his fault to the effects of the sue- cession. 11 L. 262 ; 3 K. 48 ; 4 A. S ; 5 A. 561. Art. 1273. — The accounts being thus settled, the notary must de- duct from the effects of the succession the things which have been be queathed by the deceased, either to any of the co-heirs beyond his por- tion when the collation is dispensed with, or to any other persons, as these things ought not to be included in the mass of the effects to be divided. Art. 1274. — If the partition is to be made between children or legitimate descendants inheriting from their father, mother or other ascendant, and a collation is to be made, the notary shall cause the de- cree of the judge to be exhibited to him, by which it is decided whether the collation is to be made in kind or by taking less. Art. 1275. — -If the collation is to be made in kind, the notary is bound to include the property collated in the number of the effects of the succession, for its estimated value, which shall have been fixed by experts appointed by the judge, as is said above. Art. 1276. — If, on the contrary, the collation is to be made by taking less, the notary shall add to the credit of the estate the sum due by the heir who is bound to make the collation, according to the appraise- ment which shall have been made by experts appointed by the judge, separately from the other articles of the succession, in order that the other heirs may have a sum of money, or some object equal to the esti- mated value of the property subject to collation. Art. 1277. — The notary shall then proceed to the formation of the active mass of the succession. Art. 1273. — This active mass shall be composed: 1. Of all the movables, slaves and real estate of the succession, which have not been sold, mention being made of their value, as stated in the inventory of the effects of the succession, or in the new appraise- ment which may have been made by experts appointed by the judge ; 2. Of the price of the movables, slaves and real estate, which have been sold to effect the partition ; 3. Of all the objects collated by the heirs, whether in kind or by taking less, in proportion to the appraised value given to them by the experts appointed by the judge ; 4. Of all the sums which the heirs may owe to the succession, ac- cording to the settled account ; 5. Of all the debts due to the succession by other persons. 8 E. 48. 183 OF succp:ssions. 183 Art. 1279. — The active mass of the succession being thus formed, if there be no colhition, or if the collations are made in kind, the notary proceeds to the deductions to be made from the mass, in order to ascer- tain the balance to be divided. Art. 1280. — By deduction is understood a portion or thing which an heir has a right to take from the mass of the succession, before any partition takes place. Art. 1281. — The deductions which are to be made before the parti- tion of the succession, consist : 1. Of the sums due to one or more of the heirs for a debt due them by the deceased, or advances made to the succession, or expenses on its effects, according to the amount settled among the heirs ; 2. Of tlie amount owing to the heirs to whom a collation is due, when the collation is made by taking less, in order that the heirs may receive a portion equal to the amount of the collation which is due ; 3. Of the privileged debts due or paid on account of the succession, which have been incurred since the death of the deceased, or in order to effect the partition. Art. 1282. — When the collations have been made in kind, or when there is none to be made, the deductions are taken from the active mass of the succession, and the balance remaining forms the mass to be divided. Art. 1283. — But when the collation is made fictitiously and by taking less, the notary having formed the active mass of the succession, including the collation, deducts the sum at which the property collated is estimated, and on the mass thus reduced the deduction is made. Art. 1284. — When the deduction wliich is to be made in favor of the heir to whom the collation is due, has been ascertained and esta- blished, according to the preceding article, if there be among the effects of the succession any movables and immovables which this heir wishes to take at the estimated value, in payment of the amount of the collation due to him, he can take them at his choice, and the notary shall give them to him. Art. 1285. — If there be two or more heirs who liave a right to re- ceive the collation due to them in the property and effects of the succes- sion, and they cannot agree on the partition of the effects wliich they have thus chosen, the notary shall appoint ex}:*rts to form allotments of these effects, for wliich the parties entitled to the collation shall ilraw lots, in the same manner as is hereafter prescribed for the formation and drawing of the lots of the definitive partition. Art. 128G. — When the deductions have been made, and those to wlmni the collations were due have received them, as is said in the pre- ceding article, the notary divides what remains into as many equal lots as there are heirs or roots entitled to a share. Art. 1287. — In the formation and composition of the lots, care must be taken to avoid as much as possible the cautling of tenement.^, and 184 OF SUCCESSION'S. not to separate what is necessary for the same ciiltiratiou. And there ought to be included, if possible, in each lot, the same quantity of movables, immovables, rights and credits of the same nature and value. 5 A. 20S. Art. 1288. — When the lots are of unequal value, such inequality is compensated by means of a return of money, which the co-heir, hav ing a lot of more value than the other, pays to his co-heirs. Art. 1289. — The lots are formed by experts chosen for that purpose, and sworn by the notai'y charged with the partition, and are afterwards drawn for by the co-heirs. 4 A. 9. Art. 1290. — If, in the course of a partition referred to a notary, contestations should arise, the notary shall make a proces-verbal of the objections and declarations of the parties, suspend his proceedings and refer the parties to the judge having cognizance of the partition, for his decision thereon. 11 L. 404 ; 12 E. 315 ; 4 A. 9 ; See 1 R. 415 ; 11 L. 439. Art. 1291. — If there are several minors who have opposite inter- ests in the partition, and who have the same tutor and curator, there shall be appointed to each of them a special tutor, whose functions shall cease as soon as the partition is terminated. Emancipated minors must also be assisted by a special curator dur- ing the proceeding of the partition before the notary. 1 E. 512 ; 5 A. 20S. Art. 1292. — The rules established for the division of estates to be divided, are equally applicable to the sub- divisions to be made between the individual co-proprietors claiming under the same root. 2 A. T49. Art. 1293.^No partition is made of the passive debts of the suc- cession, each heir remains bound for the part he takes in the succession ; but in order to equalize the shares, those heirs who take the largest allotments may be charged with the payment of a larger portion of the debts. Art. 1294. — Partitions made agreeably to the above rules by tutors or curators of minors, or by curators of interdicted or absent persons, are definitive ; but they are only provisional, if the rules have not been observed. Art. 1295. — When the partition is only provisional, absentees, mi- nors, persons interdicted, and married women may, if they find them- selves injured thereby, demand that another be made, as provided by the section relative to the res6ission of partitions. A minor may institute this action even before he attains the age of majority, but a married woman cannot attack the provisional partition made by her husband until the dissolution of their community. Art. 1296. — When the partition has been terminated by the no- tary, one of the parties must deposit an authentic copy thereof in the office of the judge who has ordered the partition, and make a motion that his co-heirs be summoned to show cause, if any they have, in ten days after notice of the order of the judge to that effect, why the parti- tion should not be homologated. 6 N. S. 350; 16 L. 157 ; See 12 E. 815. 185 OF SUCCESSIONS. 186 Art. 1297. — If the co-heirs, thus notified, have any objections to make against the manner in which the partition has been made, they are bound to file a written opposition to the homologation, within the time given them for that purpose, and they are bound to state in that opposition the errors, vices, and irregularities which they believe the partition contains to their prejudice. 1 K. 415 ; 6 N. S. 350 ; See 12 K. 815. Art. 1298. — If the judge finds that this opposition is well founded in whole or in part, he shall order the partition to be rectified accord- ingly, and shall refer the parties to the notary who shall make a supple- mentary act of partition in conformity with the decision of the judge of which an authentic copy shall be deposited in the office of the judge in the same manner as the original act is ordered to be deposited. Seel2E. 815; C. P. 1031. Art. 1299. — If, on the contrary, the judge finds that the opposition of the co-heirs is not well founded, he shall order the act of partition to be homologated, which shall be final between the parties, provided the formalities of the law have been fulfilled. 16 L. 15T. Art. 1300. — The form in which the notary is directed to make the act of partition, as is above described, is not a matter of such strict law that nullity results from the act, in ease of this officer making any change in the form ; provided all the provisions of the law relating to the formation of the accounts between the parties, the deductions the composition of the mass of the succession, the appointment and oaths of the experts, the making and drawing of the lots, have been observed in the partition, and the parties interested therein, or their representa- tives, have been duly notified to be present at the same. Art. 1301. — After the partition, delivery must be made to each of the co-heirs of the title papers of the objects fallen to his share. The title papers of a divided property remain in the possession of the heir who has the most considerable part of it, under the obligation of producing them, when required by the co-proprietors of the other part of the property. Titles common to the whole inheritance shall be delivered to the person chosen by all tlic heirs to be the depositary of them, on condi- tion of producing them as often as required. If they should not agree on that choice, such deposit shall be made by the order of the judge. Art. 1302. — If, after the partition, a discovery should be made of some property not included in it, the partition must be amended or made over again, either in totality, or of the discovered property alone. Art. 1303. — If, after the partition, an heir appears, whose death has been presumed on account of his long absence, or whose right was not known, as if a second testament unknown until then, should entitle him to inherit with tlie otlicrs, the first partition must be annulled, and another must be made of all the property remaining in kind, and of the value of whatever has been consumed or alienated, in order that he may have the share of the whole to which he is entitled. Art. 1304. — All the rules established in the present section, with the exception of that which relates to the collations, are applicable to 186 OF SUCCESSIONS. partitions between co-proprietors of tlie same thing, when among tlie co-proprietors any are absent, minors, or interdicted, or when tlie co- proprietors of age and present cannot agree on the partition and on the manner of making it. But in these kinds of partition, the action must be brought before the judge of the place where the property to be divided is situated, wherever the parties interested may be domiciliated. 2 A. 829 ; S L. 202 ; 19 L. 557 ; 5 N. S. 551 ; Seo C. P. 1G5 ; 3 N. S. 553. Section II. — Of Collations. § 1. — What Collation is^ and hy icliom it is due. Art. 130."5. — The collation of goods is the supposed or real return to the mass of the succession, which an heir makes of property which he received in advance of his share or otherwise, in order that such property may be divided together with the other eifects of the succes- sion. 4N. S. .557; 8 L. 228. Art. 1306. — Children or grandchildren, coming to the succession of their fathers, mothers, or other ascendants, must collate what they have received from them by donation inter vivos., directly or indirectly, and they cannot claim the legacies made to them by such ascendants, unless the donations and legacies have been made to them expressly as an ad- vantage over their co-heirs, and besides their portion. This rule takes place whether the children or their descendants suc- ceed to their ascendants as legal or as testamentary heirs, and whether they have accepted the succession unconditionally, or with the benefit of inventory. 5 N. S. 223 ; 12 E. 589. Art. 1307. — The obligation of collating is founded on the equality which must be naturally observed between children and other lawful descendants, who divide among them the succession of their father, mother, and other ascendants ; and also on the presumption that what was given or bequeathed to children by their ascendants, was so dis- posed of in advance of what they might one day exjject from their suc- cession. 12 M. 421 ; 7 E. 429 ; 12 R. 509. Art. 1308. — Collation must take place whether the donor has for- mally ordered it, or has remained silent on the subject ; for collation is always presumed, where it has not been expressly forbidden. Art. 1300. — But things given or bequeathed to children or other descendants by their ascendants, shall not be collated, if the donor has formally expressed his will, that what he thus gave, was an advantage or extra part, unless the value of the object given exceed the disposable portion, in which case the excess is subject to collation. 7 R. 429. , Art. 1310. — The declaration that the gift or legacy is made, as an advantage or extra portion, may be made, not only in the instrument where such disposition is contained, but even afterwards by an act pass- ed before a notar\ and two witnesses. 187 OF SUCCESSIOlNbJ. 187 Art. 1311.— The declaration that the gift or legacy is intenled aa an advantage or extra portion, may be made in other equivalent terms, provided they indicate, in an unequivocal manner, that such was the will of the donor. n ^ . ^i Art. 1312. If, upon calculation of the value of advantages thus given, and of the other effects remaining in the succession, such remain- ing part should prove insufficient to give to the other children their legiti- mate portion, the donee would then be obliged to collate the sum by him received, as far as necessary to complete such portion, though he_ would wish to keep the donation and renounce the inheritance ; and in this calculation of the legitimate portion, the property given or bcpieathed by the ascendants, not only to their children, but even to all other per- sons, whether relations or strangers, must be included. See 7 Pv. 429. Art. 1313.— The obligation of collating is confined to children or descendants succeeding to their fathers and mothers or other ascendants, whether ab intcstato or by virtue of a testament. Therefore this collation cannot 'be demanded by any other heir, nor even by the legatees or creditors of the succession to which the collation is due. Sec 7 R. 429. Art. 1314. — Such children or descendants only are obliged to collate, who have a right to a legitimate portion in the succession of their fa- thers, or mothers, or other ascendants. Therefore natural children, inheriting from their mother or fothcr, m the cases prescribed by law, are not liable to any collation between them, if they have not been exprassly subjected to it by the donor, because the law gives them no right to a legitimate portion in their succes- sions. 1 1 T Art. 131.5.— If children, or other lawful descendants holding pro- perty or legacies to be collated, should renounce the inheritance of the ascendant, from whom they have received such property, they may re- tain the gift, or claim tlie legacy to them made, without being subject to any collation. " If, however, the remaining amount of the inheritance should not he sufficient for the legitimate portion of the other children, including \\\ the estate of the deceased tlie property which the person renouncing would have collated, had he become heiu, he shall then be obliged to collate up to the sum necessary to complete such legitimate portion. Art. 131G. To make legitimate descendants liable to collation, as prescribed in the preceding articles, they must appear in the quality of heirs to tlie succession of the ascendant from whom they immediately have received the gift or legacy. Therefore, grandchildren, to whom a gift was made or a legacy iett by their grandfather or grandmother, after the death of their father or mother, arc obliged to collate, when they are called to the inheritance of the grandfather or grandmother, jointly with the other grandchildren, or by representation with their uncles or aunts, brothers or sisters of their father or mother, because a legitimate portion is due to them in the estate of their grandfather or grandmother, ou which it is presumed that 188 OF SUCCESSIONS. their grandfather or grandmother had intended to make the gift, or leav« the legacy by anticipation. 4 N. S. 557 ; 12 L. 5S9. Art. 1317. — But gifts made or legacies left to a grandchild by his grandfather or grandmother during the life of his father, are ahvays re- puted to be exempt from collation, because, while the father is alive, there is no legitimate portion due to the grandchild in the estate of his grandfather. The father, inheriting from the grandfather, is not liable to collate tho gifts or legacies left to his child. 12 L. 589. Art. 1318. — In like manner, the grandchild, when inheriting in liis own right from the grandfather or grandmother, is not obliged to refund the gifts made to his father, even though he should have accepted his succession ; but if the grandchild comes in only by right of representa- tion, he must collate what had been given to his father, even though he should have renounced his inheritance. 4 N. S. 55T ; 8 L. 228. Art. 1319. — What has been said in the three preceding articles, of grandchildren inheriting from their grandfather or grandmother, must be understood of the great-grandchildren and other lawful descendants called to inherit from their ascendants, either in their own name or by right of representation. § 2. — To wliom the Collation is due, and ichat things are suhjcct to it. Art. 1320. — The collation is only made to the succession of the donor. Thus, in case of a father having alone settled a dowry on one of his children, the collation is only due to his succession. But, if the father and mother have jointly settled the dowry, the collation is to be made by halves to each of their successions, conformably to the rules esta- blished in the title of the marriage contract. 2 A. C30 ; 5 N. S. 228. Art. 1321. — Collation is due for what has been expended by the father and mother to procure an establishment for their legitimate de- scendant coming to their succession, for the settlement of dowry, or for the payment of his debts. Art. 1322. — Neither the expenses of board, support, education or apprenticeship are subject to collation, nor are marriage presents which do not exceed the disposable portion. 6 N. 8. 148. Art. 1323. — The same rule is establis'ned with respect to things given by a father, mother, or other ascendant, by their own hands to one of their children for his pleasure or other use. Art. 1324.— The heir is not bound to collate the profits he has made from contracts made with his ascendant to whom he succeeds, un- less the contracts, at the time of their being made, gave the heir some indirect advantage. 189 OF SUCCESSIONS. 189 Art. 1325. — Also no collation is due for a partnei'sliip made with- out fraud with the deceased, if the conditions of the partnership are proved by an authentic act. Art. 1326. — The advantage which a father bestows on his son, though in any other manner than by donation or legacy, is likewise sub- ject to collation. Thus, when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, or has spent money to improve his son's estate, all that is subject to colla- tion. Art. 1327. — The obligation of collation does not exclude the child or descendant, coming to the succession of his father, mother, or other ascendant, from claiming wages which may be due to him for having administered the property of the ascendant or for other services. Art. 1328. — Ileal estate given by a father, mother, or other ascend- ant, to one of their children or descendants, and which has been destroy- ed by accident while in the possession of the donee, and without his fault, previous to the opening of the succession, is not subject to colla tion. If, on the contrary, it is by the fault or negligence of the donee that the real estate has been destroyed, he is bound to collate to the amount of the value which the estate would have had at the time of the opening of the succession. § 3. — How Collations are made. Art. 1329. — Collations are made in kind or by taking less. Art. 1330. — The collation is made in kind when the thing which has been given, is delivered up by the donee to be united to the mass of the succession. Art. 1331. — The collation is made by taking less, when the donee diminishes the portion he inherits, in proportion to the value of the ob- ject he has received, and takes so much less from the surplus of the effects of the succession, which is carried into effect as is explained in the section which treats of partitions. Art. 1332. — In the execution of the collation it must first be con- sidered whether the things subject to it are movables, real estate, or slaves. 6 L. 17. Art. 1333. — If a real estate has been given, and the donee hath it in his possession at the time of the partition, he has the choice to make the collation in kind or by taking less, unless the donor has imposed on him the condition of making the collation in kind, in which case it can- not be made in any other manner than that prescribed by the donor, un- less it be with the consent of the other heirs, who must be all of age, present, or represented in this State. 7 N. S. 20. Art. 1334. — The donee who collates real estate, which has been given to him in kind, must be reimbursed by his co-heirs for the ex- penses which have improved the estate, in proportion to the increase of value which it has received thereby. Art. 1335. — The co-heirs arc bound to allow to the donee the ne- 190 OF SUCCESSIONS. cessary expenses which he has incurred for the preservation of the estate though they may not have augmented its value. Art. 1336. — As to works made on the estate for the mere pleasure of the donee, no reimbursement is due to him for them, he has however the right to take them away, if he can do it without injuring the estate and leave things in the same situation they were at tlie time of the do- nation. Ar.t 1337. — Expenses made on real estates are distinguished into three kinds ; necessary, "useful, and those for mere pleasure. Necessary expenses are those which are indispensable to the preser- vation of the tiling; Useful expenses are those which increase the value of the estate, but without which tlie estate can be preserved ; Expenses for mere pleasure are those which are only made for the accommodation or convenience of the proprietor or possessor of the estate, and which do not increase its value. Art. 1338. — The donee who collates in kind the real estate given to him, is accountable for the deteriorations and damage which have dimin- ished its value, when caused by his fault or negligence. Art. 1339. — If within the time and in the form prescribed in the section which treats of partitions, the donee has made his election to collate in kind the real estate which has been given to him, and it is afterwards ddltroyed, without the act or fault of the donee, the loss is borne by the succession, and the donee shall not be bound to collate the value of the estate. Art. 1340. — If the real estate be only destroyed in part, it shall be collated in the state in which it is. Art. 1341. — But if the real estate is destroyed after the donee has declared that he wishes to collate by taking less, the loss is his, and he is bound to take less from the succession in the same manner as if the estate had not been destroyed. Art. 1342. — When the collation is made in kind, the elFccts are united to the mass of inlieritance free from all charges created by the donee, but creditors, liolding mortgages, may intervene in the partition, and make opposition to the collation which may injure their rights. 12 E. 450. Art. 1343. — In the case mentioned in the preceding article, if the property mortgaged, which has been collated in kind, falls by the parti- tion to the donee, the mortgage continues to exist thereon as if it had never been collated ; but if the donee receives for his portion other movables or immovables of the succession, the creditor sliall have a pri- vilege for the amount of his mortgage on the property which has thus fallen to his debtor by the partition. 12 K. 450. Art. 1344. — When the gift of a real estate, made to a lawful child or descendant, exceeds the portion which the ascendant could legally dispose of, the donee may make the collation of this excess in kind, if such excess can be separated conveniently. over an Art. 134.5. — If, on the contrary, the retrenchment of the excess r and above the disposable portion cannot conveniently be made, the 191 OF SUCCESSIONS. 19 donee is bound to collate the excess by taking less, as is hei'cafter pre scribed for the cases in which the collation is made of real estate giver him otherwise than as an advantage or extra ijortion. Art. 1346. — The donee, who makes the collation in kind of the real estate given to him, may keep possession of the same, until the final reimbursement of tlie sums to him due for the nccessai'y and useful ex- penses, which he has made thereon, after deducting the amount of the damage the estate has suffered through his fault or neglect, as is before provided. AuT. 1347. — When the donee has elected to collate the real estate given him by taking less on the part which comes to him from the suc- cession, the collation must be made according to the value wliich the real estate had at the opening of the succession, a deduction being made for the expenses incurred thereon, in conformity with what has been heretofore prescribed. Art. 1348. — If the donee has voluntarily alienated the real estate which has been given him as an advantage or extra portion, if he has permitted it to be seized and sold for the payment of his debts, or if it has been destroyed by his fault or negligence, he shall not be the less bound to make the collation of it, according to the value which the es- tate would have had at the time of the opening of the succession, de- ducting expenses, as is provided in the foregoing article. Art. 1349. — But if the donee has been forced to alienate the real estate, he shall be obliged to collate by taking less, the price he has received from this sale and no more. As, for example, if the donee shall be obliged to submit to a sale of the estate for some object of public utility, or to discharge a mort- gage imposed by the donor, or because the estate was held in common with another person who has prayed for the sale in order to obtain a partition of it. Art. 1350. — -If the real estate, which has been given, has beei\ sold by the donee, and afterwards is destroyed by accident in the possession of the purchaser, the donor shall only be obliged to collate, by taking less, the price he received for the sale. Art. 1351. — -AVhcn the collation is made by taking less, the co-heirs to whom the collation is due, have a right to require a sale of tlie pro- perty remaining to the succession, to be paid from the proceeds of this sale, not only the collation which is due to them, but the part which comes to them from the surplus of these proceeds, unless they prefer to pay tliemselves the amount of the collation due to them, by taking such movables and immovables of the succession as they may choose, accord- ing to the appraisjement in the inventory, or the appraisement which serves as a basis to the partition. Art. 1352. — If the co-heirs, to whom the collation is made by taking less, wi.sh that the effects of the succession be sold, in order that they may be paid wluit is due them, they are bound to decide thereon, in three days from tlicir being notified of the motion of the donee to that effect, before the judge of the partition, otherwise they shall be deprived of this right, and shall be considered as having con.sented to receive payment of the collation due them in effects and property of the succes- sion, or otherwise, from the hands of the donee. 192 OF SUCCESSIONS Art. 13u3. — "When the co-heirs, thus notified, require the sale of the eflFects of the succession to pay themselves the collation due them, the sale shall be made at public auction, in the same manner as when it is necessary to sell property held in common, in order to effect a parti- tion. Art. 1354. — If, on the contrary, the co-heirs to whom the collation is due, prefer to be paid the amount thereof in property and effects of the succession, or are divested of their right to require the sale of these effects, they shall be paid the amount of the collation in movables, im movables and other effects of the succession, in the same manner as it prescribed in the section which treats fj/'^wr/vV/o^^s. But in no case will these heirs be obliged to receive in payment ci'edits of the succession. Art. 1355. — If there are no effects in the succession, or not suffi- cient to satisfy the heirs to whom the collation is due, the amount of the collation, or the balance due on it, shall be paid them by the heir who owes the collation. Art. 1356. — This heir shall have one year to pay the sum thus by him due, if he furnish his co-heirs with his obligation payable at that time, with ten per cent, interest, and give a special mortgage to secure the payment thereof, either on the real estate subject to the collation, if it is in his possession, or in want thereof, on some other immovable property which may suit the co-heirs. See amendment to Art. 2S95. Art. 1357. — If the heir, who has been allowed to furnish his obliga- tion as mentioned in the preceding article, fails to fulfil his engagement at the expiration of the year granted to him, the heirs, in whose favor this obligation has been made, or their representatives, have a right to cause the property mortgaged to them to be seized and sold, without any appraisement, and at the price offered at the first exposure for sale. Art. 1358. — If the property, thus seized and sold, is the same which was subject to the collation, the co-heirs seizing, or their repre- sentatives, shall be paid the amount of their debt due for the collation, by privilege and in preference to all the creditors of the donee, even to those to whom he may have mortgaged the property for his own debts or engagements, previous to the opening of the succession, saving to these mortgage creditors their recourse against other property of the donee. Art. 1359. — If the donee, who owes the collation, has, before the opening of the succession, voluntarily sold the real estate given to him, and his other property is not sufficient to satisfy his co-heirs for the collation due them, the co-heirs, after a previous discussion of the effects of the donee, shall have the right of claiming the real estate thus sold, from those wlio may be the purchasers or detainers thereof, who shall be compelled to give it up as an object which had never belonged to the donee. Art. 1300. — The third purchaser or possessor of the real estate subject to collation may avoid the effect of the action of the revendica- tion, by paying to the co-heirs of the donee, to whom the collation is due, to wit : the excess of the value of the property above the disposable 193 OF SUCCESSIONS. • 193 portion, if the donation has been made as an advantage or extra portion, or the whole of the value thereof, if the donatioii has been made without this provision, by fulfilling in this respect all the obligations by which the donee himself was bound towards the co-heirs. Art. 13G1. — When slaves have been given, the donee is not per- mitted to collate them in kind ; he is bouiul to collate for them by taking less, according to the value of the slaves at the time of the donation. 14 L. 352. Art. 1362. — Therefore the donation of slaves contains an absolute transfer of the rights of the donor to the donee in the slaves thus given. They are at the risk of the donee, who is bound to support their loss or deterioration, at the same time that he profits by the children born of them ; and if the donee dispose in good faith of all or any of the slaves, the action of revcndication for recovering the slaves on the part of his co-heirs for the collation due to them, will not lie against those who are the purchasers or liolders of the slaves. 11 L. 353. Art. 1363. — The dispositions, contained in the two preceding arti- cles, also take effect, when the donation, subject to the collation, consists in movable eff"ects ; the only difference is that the collation of movables given, must be according to their appraised value, if there be any annexed to the donation, and, in default thereof, recourse may be had to other evidence to establish the value of these movables at the time of the donation. Art. 1364. — The collation of money may be made in specie, or by taking less, at the choice of the donee who is bound to decide thereon, in the same manner as is prescribed for the collation of real estate. Art. 1365. — If it be slaves, movables or money, of which the donee wishes to make the collation by taking less, he has the right of com- pelling his co-heirs to pay themselves the collation due to them in money, and not otherwise, if there be sufficient in the succession to make these payments with. Art. 1366. — But if there is not sufficient money in the succession to pay such heirs the collation due to them, they shall pay themselves by taking an equivalent in the other movables or immovables of the succession, as is directed with respect to the collation of real estate. Art. 1367. — In case there be no property or eff"ectsin the succession to satisfy the collations due for slaves, movables or money given, the donee shall have, for the payment of the sum due to his co-heirs, the same terms of payment as are given for the payment of the amount of collations of real estate, and under the same conditions as are before prescribed. Section III. — Of the Payment of Debts. Art. 1368. — There are two principal things to be considered relative to the payment of the debts of a succession : 13 194 OF SUCCESSIONS. 1. The actions of tlie creditors to cause themselves to be paid what is due them, and the persons against whom these actions can be brought ; 2. The contribution which is to be made between these latter persons. Art. 1369. — Contribution is the division which is made, among the heirs of the succession, of the debts with which the succession is charged, according to the proportion which each is bound to bear. Art. 1370. — The creditors of a succession haA^e three kinds of action to cause themselves to be paid the debts due them by the deceased, to wit: 1. A personal action against the heirs, or those who stand in the place of heirs ; 2. An hypothecary action against the detainers or possessors of the property mortgaged for their debts ; 3. And the action of the separation of the patrimony of the deceased from that of the heir. 1 A. 228; §2; 1 jV. 204; 2 A. 462. ■ Art. 1371. — The personal action, which the creditors of a succession can exercise against the heirs, has for its basis the obligation, which the heirs are under, to discharge the debts of the deceased. This action is modified according as the deceased has left one or several heirs. Art. 1372. — The heirs by the fact alone of the simple acceptance of a succession left them, contract the obligation to discharge all the debts of such succession, to whatever sum they may amount, though they fur exceed the value of the effects composing it.* This rale has no exception, but when the heirs, before meddling with the succession have caused a true and faithful inventory thereof to be made, as is prescribed in the section of this title which relates to the acceptance of successions and the benefit of inventory ; for in this case they are only bound for the debts to the amount of the value of the eflFects found in the succession. Art. 1373. — Universal legatees, or legatees under an universal title, being in every respect assimilated to heirs, are subject to the payment of the debts of the succession, according to the same rules and under the same exceptions as heirs. Art. 1374. — But though the heirs and other universal successors, who have not made an inventory as is before prescribed, are bound for the payment of all the debts of the succession to which they are called, even when the debts exceed the value of the property left them, they are not bound, in solido and one for the other, for the payment of the debts. 6 L. 17. Art. 1375. — When the deceased has left one sole heir, or has be- queathed all his property universally to the same person, this heir or universal legatee is bound for the payment of the whole of the debts of the succession, and may be sued directly and personally as such by those who are the creditors of the succession. Art. 1376. — If, on the contrary, the deceased has left two or more heirs, they are bound to contribute to the payment of those debts, only in proportion to the part which each has in the succession. 195 OF SUCCESSIONS. 195 Thus the creditors of the succession must divide among the heirs the personal action which they have against tlicm, and cannot sue one for the portion of the other, or one for the whole debt. 6 L. 17. Art. 1377. — If the succession is divided by roots, the subdivision of debts takes place among the representatives of each root, in the same manner as when there are several heirs. _ If then the deceased leaves for heirs two children and four grand- children, the issue of another child deceased, each of the children is bound only for one-third of the debts, and each of the grandchildren for one twelfth. Art. 1378. — If one of the heirs be a creditor of the deceased, con- fusion will only take place for his part in the debt, and he may 'claim from the co-heirs the part which each is bound to contribute for the payment of this debt. Art. 1379.— The legatee under an universal title shall contribute with the heirs to the payment of the debts, in proportion to the part bequeathed to him in the succession ; but the legatee under a particular title is not liable for the debts of the succession, though he may be obliged to contribute to them indirectly, as is hereafter explained. 5 A. W9. Art. 1380. — If the testator has bequeathed more than his disposable effects amounted to, or if there does not remain sufficient property in the succession to pay all the debts, the legatees may be made to give up what they have received above what the testator was permitted to be- queathe, or the deficit necessary to discharge the debts of the succession. In the first case, each legatee suffers a retrenchment or proportional diminution of the amount of his legacy for its excess above the dispos- able portion ; in the second he is compelled to bring back out of what he has received his proportional sum of what is necessary for the dis- charge of the debts. But this action on the part of the creditors of the succession against the legatees, is prescribed by three years, to be calculated from the opening of the succession. 1 A. 214; 5 A. 190. Art. 1381. — The particular agreements which the heirs may make among themselves, or with third persons,, relative to the payment of the debts, do not affect their obligations towards the creditors of the suc- cession. Thus, though one of them be charged by the partition with the pay- ment of the whole of a certain debt, each of them can be compelled by the creditor, by means of a personal action, to pay his proportion, saving to the latter his recourse against the person who is bound to guarantee him against it. Art. 1382. — Although the heirs and other successors under an uni- versal title are personally bound for the debts of the succession to any creditor, only in proportion to their respective shares in the succession yet one heir may be bound to pay the whole of a debt by an hypothecary action, when the property fallen to his share has been mortgaged by the deceased ; but he has recourse against his co-heirs, or the other succcs- igb OF SUCCESSIONS. sors standing in tlicir place, for the amount ■wliieli lie lias been boimd tc pay for the discharge of the mortgage debt. 2 L. 187 ; 1 A. 204. Art. 1383. — The particular legatee who has satisfied the debt for which the bequeathed immovable was mortgaged, is and remains sub- rogated to the rights of the creditor against the heirs and legatees on an universal title. Art. 1384. — The heir or successor under an universal title, who, by the effect of the action of mortgage exercised against him, has been obliged to pay more than his share of the common debt, has recourse against his co-heirs only for so much as each of them is bound to sup- port personally, even though the co-heir or other successor, having paid the debt, should have caused himself to be subrogated to the rights of the mortgage creditor. 2 L. 137. Art. 1385. — But if, at the time when this recourse is exercised, one of the heirs is insolvent, the portion which this heir was bound to contribute, shall be borne proportionally by the other solvent heirs and him who has paid the debt. Art. 138G. — If all the immovables of a succession are incumbered with a legal or judicial mortgnge, each heir who has in his possession one or more of these immovables, may be sued by the hypothecary action for the whole, at the choice of the creditor ; but the heir so sued has his recourse against his co-heirs, as is before said. 2 L. 137. Art. 1387. — The heir who is in possession of a mortgaged property which has fallen to him by the partition, may release himself from the hypothecary action instituted against him, by abandoning the property, so that it may be sold by the creditor who sues him, and the debt dis- charged out of the proceeds of the sale, but he has his recourse against his co-heirs for the payment of their proportions of the value. 1 A. 20i Art. 1388. — But this abandonment of the property Avill not release the heir from his personal responsibility to the amount of the portion which he inherits, in case the mortgaged property will not sell for a sufficient sum to satisfy the debt for which it is given. Art. 1389. — If a property which is bequeathed to any one has been mortgaged by the testator for his own debt, or that of a third person, the particular legatee is liable to the hypothecary action for the pay- ment of this debt, at the instance of the creditor, saving to the legatee the right of abandoning the property mortgaged, in order to release himself from the hyj)oth(;cary action, in the same manner as is permitted to the heir against whom this action is- brought. Art. 1390. — The particular legatee, who, in consequence of the hypothecary action, has paid the debt, or abandoned the property mort- gaged, has no recourse against the heir of the testator, because by re- ceiving the legacy, he is considered as having received it with the incumbrances with which it was charged. Art. 1391.— On the contrary, if the heirs of the testator are obliged to pay this debt on the personal action which the mortgage creditor can institute against them, they have their recourse against the legatee, to 197 OF SUCCESSIONS. 197 cause themselves to be reimbursed for having discharged and disengaged the object bequeathed, which they were not obliged to do. Art. 1392. — But if the mortgage which the testator has given on the property bequeathed, be for a debt of a third person, the legatee who, at the suit of the mortgage creditor, pays the debts or abandons the property, has his recourse against the debtor for the debt for Avhich the testator gave th^ mortgage. Art. 1393. — The provisions contained in this section, relating to the manner in which heirs, or other universal successors are bound to contribiite to the payment of debts, does not prevent the contribution from being otherAvise regulated by the agreement of the parties, or the will of the testator, provided that by the dispositions made by the tes- tator in this respect, the rights of the lawful heir are not prejudiced. 5 A. 199. Art. 1391. — But these agreements or dispositions can only have effect between the heirs and other universal successors, they can in no manner alter their ol^Jigations towards the creditors of the succession for the payment of the debts, as is before said. Art. 1395. — Titles which carry execution against the deceased, are also executory against the heir personally ; nevertheless the creditors cannot obtain execution on them, until ten days after the notification of them be made to the person, or left at the domicil of the heir. 3N. S. 182; 1 A. 204. Art. 1396. — The heir, on being notified thereof, may oppose the execution, before the tribunal having cognizance of the matter, on'* his simple motion; and if he proves that he has claimed the delays for deliberating, the execution shall be suspended until the delays have ex- pired. 1 A. 204. Art. 1397. — The creditors of the succession may demand, in every case and against every creditor of the heir, a separation of the property of the succession from that of the heir. This is what is called the sep- aration of patrimony. 1 A. 228. Art. 1398. — The object of a separation of ])atrimony is to prevent property out of which a particular class of creditors have a right to be paid, from being confounded with other property, and by that means made liable to the debts of another class of creditors. 1 A. 228. Art. 1399. — The effect of this demand, on the part of the creditors of a succession, is to cause them to be paid from the effects of the suc- cession in preference to the creditors of the heir. Art. 1400. — This separation may be demanded by all the creditors of the deceased, whatever they may be. It is not neccs.sary that these debts be demandable in order to enable them to possess this right. Art. 1401. — Even those, whose right is eventual, or depending on an uncertain condition, are admitted to make this demand, and as, before the condition happens, they cannot prevent the creditors of the heir from being paid, they are permitted to require security from them that they will refund, in case the condition happens. 198 OF SUCCESSIONS. Art. 1402. — The legatees may also demand the separation in order to secure the payment of their legacies after the payment of the debts of the succession. 2 A. ST. Art. 1403. — The heir in part, who is a creditor of the succession, as confusion only takes place for the amount of his property, and as he remains a creditor for the balance, may also demand this separation from his co-heirs. 2 A. 87. Art. 1404. — The benefit of this separation may be claimed against all the creditors of the heirs, whether privileged or not. 1 A. 22S. Art. 1 405. — The creditors of a succession, in which there are several heirs, may demand this separation from some of the heirs, without being obliged to require it from the others. Art. 1406. — The creditors, who demand this saparation of the effects of the succession, cannot include in it the eflfects, which the deceased has given to one of his children by act inter vivos, and which the child is bound to collate ; for these effects do not belong to the succession, and the collation, which the child who is the donee, is bound to make of them, is only established in favor of his co-heirs. 1 A. 228. Art. 1407. — The right of demanding the separation cannot be ex- ercised, if there has been a novation in the debt due by the deceased. See 8 L. 321. Art. 1408. — There is a novation in the debt of the deceased, when the creditor has accejited a new title from the heir, or a pledge or mort- gage of the property of the latter, or if the creditor has granted him a term for payment, or a delay. But there is no novation, if the creditor has merely commenced suit against the heir, or received from him the interest due the creditor. Art. 1409. — The suit of separation of patrimony must be instituted within three months from the express or tacit acceptance of the li-eirs ; after the expiration of this term, it is not admitted. Art. 1410. — The petition for separation of patrimony shall not be received, unless it be accompanied with the sworn declaration of the cre- ditor or creditors parties to it, that they believe the heir is embarrassed with debts, and that they have reason to believe that his personal debts will absorb the effects of the succession to their prejudice. Art. 1411. — In the interval between the openhig of the succession and the three months allowed for the institution of the suit for the sep- aration of patrimony, the heir cannot alienate, affect, nor sell the effects of the succession, nor any of them to the prejudice of the creditors; and if he does it, the creditors may cause the acts to be declared null, as done in fraud of their rights. Art. 1412. — The creditors of the heir, have also the right of de- manding of the creditors of the succession, the separation of the effects of the heir from those of the succession, and the suit must be conducted 199 OF SUCCESSIONS. 199 in the same manner, and instituted within the same period, as that at the instance of the creditors of the succession, and produces the same eifects in favor of the creditors of the heir. Art. 1413. — When the creditors of the succession have sued for a separation of patrimony, if there are not effects therein sufficient to pay them, they liave their recourse against the property of the heir, after his own creditors have been paid. Art. 1414. — The creditors of the heir, who have sued for the sepa- ration, enjoy the same right to cause themselves to be paid, from tho balance of the eifects of the succession, what is due them by the heir, in case the otlier property of the lieir be not sufficient to pay them. Art. 1415. — AVhen there is competition between the creditors of the deceased only, and they have no privilege nor mortgage, they have an equal right against the effects of the succession, and the property of tho heir ; and each receives in proportion to his debt, if there is not property enough to pay them all. * Art. 1416. — If, in the case of the preceding article, there are some creditors by mortgage, they shall be paid out of the effects of the suc- cession, according to the order of their mortgages ; and out of the prop- erty of the heir in competition with the other creditors who have no mortgage. Art. 1417. — But creditors by mortgage, or other creditors of the deceased, who have acquired the first mortgage upon the property of the heir, either by a new title, or by a judgment obtained against him, shall have a preference over the other creditors on the estate of the heir. Art. 1418. — The heir, or other univeral successor is not bound for the legacies, except to the amount of the value of the effects of the suc- cession, and he can therefore free himself from them by abandoning to the legatees what remains of the succession, after the payment of the debts. Art. 1419. — If it be the lawful heir, who makes the abandonment to the legatees, he has a right to reserve to himself, from the effects of the succession, the legitimate portion secured to him by law, and shall deliver up the balance to the legatees. Section IV. — Of the Effect of Partition. § 1. — Of the Warranty of Partition. Art. 1420. — Partition is a sort of exchange, which the co-heirs make among themselves, one giving up his right in the thing, which he abandons, for the right of the other in the thing he takes. 10 L. 172. Art. 1421. — The co-heirs remain respectively bound to warrant, one to the other, the property falling to each of their shares against the disturbance and eviction which they may suffer, when the disturbance or eviction proceeds from a cause anterior to the partition. Art. 1422. — The warranty does not take place, if the kind of cvic tion suffered has been excepted by a particular and express clause of the act ; but it cannot be stipulated in a partition, by a general clause, that 200 OF SUCCESSIONS. there shall be bo warranty among the co-heirs for any kind of disturb- ance W'liatcver. Art. 1423. — The warranty ceases, if it be by the fault of the co- heir, that he has suffered the eviction. Art. 1424. — Each of the co-heirs is personally bound, in proportion to his hereditary share, to indemnify his co-heir for the loss which the eviction has caused him. Art. 1425. — But the indemnity is only for the sum for which the object has been given by the partition to the heir who has suffered th eviction, and for the proportion which each of the heirs is bound to con- tribute, the amount of his own portion being extinguished by confusion ; and the heir in this case has no right to claim remuneration from his co-heirs for any damages which he may have suffered by the eviction. Art. 142(3. — If one of the co-heirs happens to be insolvent, the portion, for which he is bound, must be divided equally, between the one who is guaranteed, and the othe» co-heirs who are solvent. Art. 1427. — Warranty between co-heirs has two different effects, according to the two kinds of property which may exist in the suc- cession ; One composed of things which corporeally exist, whether they be real or personal, with regard to which, warranty goes no further than assuring them to belong to the succession. The other kind consists of active debts and other rights ; and with respect to these, they are not only guaranteed as belonging to the suc- cession, but also as being such as they appear to be, that is to say, as being really due to the succession, and due by debtors solvent at the time of the partition, and who shall be so w^hen the debt becomes pay- able, if it be not then due. Art. 1428. — The warranties mentioned in the preceding article exist of right, so that they are always implied, and the heirs arc bound to them, though no mention .be made thereof in the partition. Art. 1429. — The wari-anty of the solvency of the debtor of a rent- charge, cannot be claimed after the lapse of five years'from the partition. Art. 1430. — Where, after the partition, the thing decays by its nature, or perishes by accident, such loss gives rise to no action of warranty. Art. 1431. — If, since the partition, debts or charges before unknown are discovered, such new charges, whatever they may be, shall be sup- ported by all the heirs, and they shall mutually guarantee each other. Art. 1432. — The tacit mortgage which resulted from the partition for the execution of all the obligations contained therein, no longer exists ; but the heirs may stipulate a special mortgage. Art. 1433. — The action of warranty among co-heirs is prescribed, as ordinary actions are ; and the time commences to run, to wit : for the property included in the partition, from the day of the eviction ; and for debts, from the day that the insolvency of the debtor is estab- lished by the discussion of his effects. n L. 426. Art. 1434. — The heir, to whose share an immovable or some other thing liable to be mortgaged, has fallen, is not bound by the mortgages which his co-heirs may have given on their individual shares of the 201 OF SUCCESSIONS. ^Ul same, previous to the partition ; and these mortgages are dissolved of right, except upon the property which falls to the heirs who have given the mortgages, if the property is susceptible of being mortgaged See Arts. 1342, 134:3 ; 12 E. 450. § 2. — Of the Rescission of Partitiov. Art. 1 435. — Partitions made, even with persons of full age, may be rescinded, like other covenants, for radical vices, such as violence, fraud or error. Art. 1436. — They may even be rescimlod, on account of lesion; and as equality is the base of partitions, it suffices, to cause the rescission, that such lesion be of more than one-fourth part of the true value of the property. Art. 1437. — When partitions, in which minors, persons interdicted, or absentees are interested, liave been made with all the formalities prescribed by law for judicial partitions, they cannot be rescinded for any other than those which would authorize the rescission of partitions made by persons of age and present. Art. 1438. — But if these formalities have not been fulfilled, as the partition is only considered as provisional, it is not necessary to sue for the rescission of it, but a new partition may be demanded for the least lesion, which the minor, person interdicted or absentee, may have suffered. 5 L. 882 ; 7 L. 156. Art. 1439 — The mere omission of a thing, belonging to the suc- cession, is not ground for rescission, but simply for a sui^plement of partition. Art. 1440. — The action of rescission mentioned in the foregoing articles, takes place in the cases prescribed by law, not only against all acts bearing the title of partition, but even against all those which tend to the division of property between co-heirs, whether such acts be called sales, exchanges, compromises, or by any other name. 6 L. 346. Art. 1441. — But, after the partition, or the act operating the same effect, the action of rescission can no longer be admitted against a com- promise made to put an end to disputes arising in consequence of the first act, although there should be no suit commenced on the subject. Art. 1442. — The action of rescission is not admitted against a sale of hereditary rights, made without fraud to one of the heirs and at his risk by the other co-heirs or any of them. Art. 1443. — The sale of hereditary rights of one heir to his co-heir is not subject to rescission, if the purchaser has run no risk, as, for ex- ample, if the vendor remains bound for the payment of the debts. Art. 1444. — In order that the purchaser be not liable to this action, it is besides necessary that the vendor should have ceded to him all his hereditary rights, that is, all the rights he had in the succession. If he has only .sold his part in the immovables to be divided, this sale shall be subject to rescission for lesion beyond a fourth. 202 OF SUCCESSIONS. Art. 1445. — This sale shall be subject to rescission if it be proved that, at the time it was made, the purchaser alone knew the value of the succession, and permitted the vendor to remain in ignorance of it. Art. 1446. — The defendant in the suit for rescission may stop its course and prevent a new partition, by offering and giving to the plain- tiff the supplement of his hereditary portion, either in money or in kind, provided the rescission is not demanded for cause of violence or fraud. Art. 1447. — When the defendant is admitted to jjrevcnt a new par- tition, as is said in the preceding article, if he furnishes the supple- ment tn money, it must be with interest from the day of the institution of the suit, if he furnishes it in effects, he is bound to restore the fruits from tne same day. Art. 1448. — The co-heir, who has alienated his share or part of it, is no longer admitted to bring the action of rescission for fraud or vio- lence, if the alienation he has made was posterior to the discovery of the fraud, or to the cessation of the violence. Art. 1 449. — If the partition has been regulated by the father among his children, no restitution can take place, even in favor of minors, when, by such partition, one or more of the heirs have received more than the others, unless that overplus should exceed the portion which the father had a right to dispose of. Art. 1450. — The minor who obtains relief against a partition, re- lieves those of full age ; for the partition cannot subsist for one, and be annulled for another. Art. 1451. — Suits for the rescission of partitions are prescribed by the lapse of ten years from the date thereof, and in case of error and fraud, from the day in which they are discovered. 3R. 313; See Art. S50T. Art. 1452. — This prescription, in case of lesion, runs against minora as well as against persons of age, when the partition has been made ju- dicially and with all the forms prescribed by law. 203 OF DOITATIONS AND TESTAMENTS. 20S TITLE II. OF DONATIONS INTER VIVOS (BETWEEN LIVING PERSONS) AND MOR- TIS CAUSA (IN PROSPECT OF DEATH). CHAPTER I. GENERAL DISPOSITIONS. Art. 1453. — Property can neither be acquired nor disposed of gra- tuitously, unless by donations infer vivos or mortis causa, made in the forms hereafter established for one or the other of these acts. 17 L. 144; 3R.TS; 2 A. 80. Art. 1454. — A donation inter vivos (between living persons) is an act by which the donee divests himself at present and irrevocably of the thing given, in favor of the donee who accepts it. 10 L. S5 ; 15 L. 562. Art. 1455. — A donation mortis causa (in prospect of death) is an act to take effect, when the donor shall no longer exist, by which he dis- poses of the whole or a part of his property, and which is revocable. 8 E. 7S ; 15 L. 502 ; 17 L. 144 ; 19 L. 528 ; 2 A. .30 ; See 4 L. 423. CHAPTER II. OF THE CAPACITY NECESSARY FOR DISPOSING AND RECEIVING BY DONA- TION INTER VIVOS AND MORTIS CAUSA. Art. 1456. — All persons may dispose of or receive by donatiou iritcr vivos or mortis causa, except such as the law expressly declares inca- pable. 14 L. 542 ; See 2 A. 667. Art. 1457. — The incapacities are absolute or relative: Absolute incapacities prevent the giving or receiving indefinitely with regard to all persons ; Relative incapacities prevent the giving to certain persons, or re- ceiving from them. 8 A. 494. Art. 1458. — It is sufficient if the capacity of giving exists at the moment the donation is made. 3 A. 494 Art. 1459. — AVith regard to the capacity of receiving, it is sufficient, if it exists at the moment of the acceptance of the donation inter vivos or at the opening of the succession of the testator. 19 L. 52S; 3 A. 494. Art. 14G0. — When the donation depends on the fulfilment of a con- dition, it is sufficient if the donee is capable of receiving at the moment the condition is accomplished. 17L.46; 19L.52S. 204 OF DONATIONS AND TESTAMENTS. Art. 1461. — To make a donation either inta- vivos or mortu causa, one must be of sound mind. Art. 1462. — Slaves cannot dispose of, or receive by donation i?ite7 vivos or mortis causa, unle^ they have been previously and expressly enfranchised conformably to lavs^, or unless they are expressly enfran- chised by the act itself by which the donation is made to them. Art. 1463. — The minor under sixteen years cannot dispose of any property, save, however, the dispositions contained in, the ninth chapter of this title. Art. 1 464. — The minor above sixteen can dispose only inortis causa (in prospect of death). But he may dispose in this manner of the same amount as a person of full age can do, even to the prejudice of the usufruct granted by law to the father and mother of the minor not emancipated, during mar- riage ; and the usufruct in that case, will cease to the advantage of the person in whose favor the minor had disposed of it if the minor dies, being still under the power of his father and mother ; and to make such disposition the minor has no need of the authorization or concurrence of his curator. 2 E. 42T. Art, 1465. — Nevertheless, the minor who has a right to dispose by donation mortis causa, cannot make such disposition in favor of his curator ad bona, nor of his preceptors or instructors whilst he is under their authority. Art. 146(5. — The minor, even when he comes of age, cannot dis- pose of property either by donation inter vivos or mortis causa in fa- vor of the person who has been his tutor or curator ad bona, iiuless the final account of the tutorship or curatorship has been previously rendered and settled. The two eases above mentioned do not apply to the relations of the minor who have been his tutors, curators, or iustitutors. Ar.t. 1467. — A married woman cannot make a donation inter vivos without the concurrence or special consent of her husband, or unless she be authorized by the judge, conformably to what is prescribed under the title of husband and wife. But she needs neither the consent of her husband nor any judicial authorization to dispose by donation mortis causa. Art. 1468. — Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables ; and if they make a do- nation of movables, it cannot exceed one-tenth part of the whole value of their estate. Those who afterwards marry are excepted from this rule. 6 L. 8S0 ; IT L. 144 ; 10 R. 143 ; 2 A. 51T, 946 ; 3 A. 239 ; 6 A. 323, 350. Art. 1469. — In order to be capable of receiving by donation inter vivos, it sviffices to be conceived at the time of the donation. In order to be capable of receiving by last will, it suffices to be con- ceived at the time of the decease. But the donations or the last will can have eflPect only in case the child should be born alive. IT L. 46 ; 8 A. 494. 205 OF DONATIONS AND TESTAMENTS. 205 Art. 1470. — Natural children or acknowledged bastards cannot re- ceive from their natural parents, by donations inter vivos or morti$ causa beyond what is strictly necessai-y to procure them sustenance, oi an occupation or profession which may maintain them, whenever the fa- ther or the mother who has thus disposed in their favor, leaves legiti- mate children or descendants. Those donations shall be reducible in case of excess, according to the rules laid down under the title of father ami child. IL. 495; 14 L. 542; C A. 161. Art. 1471. — When the natural mother has not left any legitimate children or descendants, natural children may acquire from her by do- nation inter vivos or mortis causa, to the whole amount of her succes- sion. 4 A. 30S. Art. 1 472. — But if she has left them only a part, and has disposed of the rest in favor of other persons, her natural children have no action against her heirs for any thing more than so much as is wanting to sup- ply the maintenance that is secured to them by law, in case what she has left them be not sufficient for their support. Art. 1473. — When the natural father has not left legitimate chil- dren or descendants, the natural child or children, acknowledged by him may reocive from him, by donation inter vivos or mortis catcsa, to the amount of the following proportions, to wit : One-fourth of his property, if he leaves legitimate ascendants or legitimate brothers or sisters or descendants from such brothers and sisters; and one-third, if he leaves more remote collateral rela.ions. S L. 459 ; 14 L. 542 ; 10 R. 512; 12 R. 56, 5.52 ; 6 A. 15G, 161 ; s'ce 4 L. 267. Art. 1474. — In all cases in which the father disposes in favor of his natural children, of the portion permitted him by law to dispose of, he is bound to dispose of the rest of his property in favor of his legitimate relations ; every other disposition shall be null, except those which he may make in favor of some public institution. S L. 4.-.9 ; 10 R. 512 ; 12 R. 56, 552. Art. 1475. — Natural fathers and mothers can, in no case, dispose of property in favor of their adulterine or incestuous children, unless to the mere amount of what is necessary to their sustenance, or to procure them an occupation or profession by which to support themselves. Art. 1476. — Doctors of physic or surgeons, who have professionally attended a person during the sickness of which he dies, cannot receive any benefit from donations inter vivos or moi'tis cavsa made in their favor by the sick person during that sickness. To this, however, there are the following exceptions : 1. Remunerative dispositions made on a particular account, regard being had to the means of the disposer and to the services rendered ; 2. Universal dispositions in case of consanguinity. The same rules are observed with regard to the ministers of religious worship. Art. 1 477. — Donations inter vivos and mortis causa may be jnade in favor of a stranger, when the laws of his country do not prohibit eimilar dispositions from being made in favor of a citizen of this State,* 17 L. 312. Art. 1478. — Every disposition in favor of a person incapable of re- 206 OF DONATIONS AND TESTAMENTS. ceiving shall be null, whether it be disguised under the form of an oner- ous contract, or be made under the name of persons interposed. The father and mother, the children and descendants, and the hus- band or wife of the incapable person, shall be reputed persons inter- posed. 1 L. 495 ; U L. 542 ; 17 L. 4G ; 12 E. 56. Art. 1479. — Proof is not admitted of the dispositions having been made through hatred, anger, suggestion, or captation. 9L.458. CHAPTER III. OF THE DISPOSABLE rORTION, AND OF ITS REDUCTION IN CASE 01 EXCESS. Section I. — Of the Disposable Portion and the Legitime. Art. 1480. — Donations inter vivos or mortis cmisa cannot exceed two-thirds of the property of the disposer, if he leaves at his decease, a legitimate child ;, one-half, if he leaves two children ; and one-third if he leaves three or a greater number. » Under the name of children are included descendants of whatever degree they be, it being understood that they are only counted for the child they represent. 1 L. 234; 4 L. 353; 14 L. 542; 12 R. 539; 2 A. 80, 293; See 1 A. 142. Art. 1481 — Donations inter vivos cfr mortis causa cannot exceed two-thirds of the property, if the disposer, having no children, leave a father, mother or both. 7N. S. 414; See 1 A. 142. Art. 1482. — In the cases prescribed by the two last preceding arti- cles, the heirs are called forced heirs, because the donor cannot deprive them of the portion of his estate reserved for them by law, except in cases where he has a just cause to disinherit them. TN. S. 414; Seel A. 142. Art. 1483. — Where there are no legitimate descendants, and in case Df the previous decease of the father and mother, donations inter vivos or mortis cansa, may be made to the whole amount of the property of the disposer, saving the reservation made hereafter. 4 L. 853 ; 14 L. 542 ; See 1 A. 142. Art. 1484. — The donation inter vivos shall in no case divest the donor of all his property ; he must reserve to himself enough for sub- sistence ; if he does not do it, the donation is null for the whole. 11 R. 802; 6 A. 495; See 1 A. 142. Art. 1485. — The legitimate portion of which the testator is forbid- den to dispose to the prejudice of his descendants, being once fixed by the number of children living or represented at the death of the testa tor, does not diminish by the renunciation of one or any of them. The part of those who renounce goes to those who accept. 2 A. 30 ; See 1 A. 142. Art. 1486. — If the disposition made by donation inter vivos or 207 OF DONATIONS AND TESTAMENTS. 207 mortis cansa^ be of an usufruct, or of an annuity, the value of which exceeds the disposable portion, the forced heirs have the option, either to execute the disposition, or to abandon to the donee the ownership of such portion of the estate as the donor had a right to dispose of. Art. 1487. — The value in full ownership of property which has been alienated, cither for an annuity for life, or with reservation of an usufruct, to one of those who succeed to the inheritance in the direct descending line, shall be imputed to the disposable portion, and the sur- plus, if any there be, shall be brought into the succession ; but this im- putation and this collation cannot be demanded by any of the heirs in the direct descending line who have consented to those alienations. 7N. S. 414; See 1 A. 142. Art. 1488. — The disposable quantum may be given in whole or in part, by an act inter vivos or mortis causa, to one or more of the dis- poser's children or successible descendants, to the prejudice of his other children or successible descendants, without its being liable to be brought into the succession by the donee or legatee, provided it be expressly declared by the donor that this act is intended to be over and above the legitimate portion. This declaration may be made, either by the act containing the dis- position, or subsequently by an instrument executed before a notary public, in presence of two witnesses. See5M.408;l A. 142. Section II. — Of the Reduction of Dispositions Inter Vivos or Mortis Causa ; of the Manner in xvhich it is made ; and of its Effects. Art. 1489. — Any disposal of property, whether inter vivos or mor- tis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum. T N. S. 414 ; S L. 459 ; 19 L. 528 ; 11 K. 302 ; 12 R. 552 ; Sco 1 A. 142. Art. 1490. — A donation inter vivos, exceeding the disposable quan- tum, retains all its effect during the life of the donor. Art. 1491. — On the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for only by forced heirs, or by their heirs or assigns : neither the donees, legatees, nor creditors of the deceased, can require that reduction nor avail themselves of it. 8 L. 469 ; 14 L. 542 ; 19 L. 523 ; 3 R. 78 ; 11 R. 302 ; See T R. 429. Art. 1492. — To determine the reduction to which the donations, cither iiiter vivos or mortis causa are liable, an aggregate is formed of all the property belonging to the donor or testator at the time of his decease ; to that is fictitiously added the property disposed of by dona- tion iiitcr vivos, according to its value at the time of the donor's de- cease, in the state in which it was at the period of the donation. The sums due by the estate are deducted from this aggregate amount, and the disposable quantu.m is calculated on the balance, tak- ing into consideration the number of heirs and their qualities of ascend- ant or descendant, so as to regulate their legitimate portion by the rules above established. 1 A. 1 12, 237. 208 OF DONATIONS AND TESTAMENTS. Art. 1493. — In' the fictitious collation of effects given by act intci vivos by tlie deceased, those which have perished by accident in the hands of the donee, are not included; those which have perished through his fault only are to be included. AuT. 14SU. — Donations inter vivos can never be reduced, until the value of all the property comprised in donations moi'tis causa, be ex- hausted ; and when that reduction is nccessar}'^, it shall be made by be- ginning with the last donations, and thus successively ascending from the last to the first. Art. 1495. — When the last donee is insolvent, the heir can, aftei the previous discussion of his effects, claim from the donee, which pre- cedes the last, his legitime, and so on to the one preceding him. Art. 1496. — If the donation inter vivos, subject to reduction, was made to one of those who succeed to any part of the estate, the latter is authorized to retain of the property given the value of the portion that would belong to him as heir in the property not disposable, if it be of the same nature. Art. 1497. — When the value of donations inter vivos exceeds or equals the disposable quantum, all dispositions mortis causa are with- out efiiect. Art. 1498. — When the dispositions mortis causa exceed, either the disposable quantum or the portion of that quantum that remains after the deduction of the value of the donations inter vivos, the reduction shall be made ^jro rata, without any distinction between universal dispo- sitions and particular ones. 11 L. 429. Art. 1499. — Nevertheless, in case the testator has expressly de- clared that any particular legacy should be paid in preference to the others, that preference shall take place, and the legacy, that is, the ob- ject of it, shall not be reduced, if the value of the others does not fall short of the legal reservation. Art. 1500. — Remunerative donations can never be reduced below the estimated value of the services rendered. 2 K. 292. Art. 1501. — Donations, by which charges are imposed on the donee, can never be reduced below the expenses, which the donee has incurred to perform them. Art. 1502. — The donee restores the proceeds of what exceeds the disposable portion, only from the day of the donor's decease, if the de- mand of the reduction was made within the year ; otherwise from the day of the demand. Art. 1503. — Immovable property, that is brought into the succession through the effect of reduction, is brought into it without any charge of debts or mortgages created by the donee. Art. 1504. — The action of reduction or revendication may be brought by the heirs against third persons holding the immovable pro- perty, which has been alienated by the donee, in the same manner and order that it may be brought against the donee himself, but after dis- cussion of the property of the donee. 1 L. 505 ; 11 R. 302. 209 OF DONATIONS AND TESTAMENTS. 209 Art. 1 505. — If the donee has successively sold several objects of real estate, liable for an action of revendication, that action must be brought against third persons holding the property, according to the order of their purchases, beginning with the last, and ascending in suc- cession from the last to the first. CHAPTER IV. OF DISPOSITIONS RErROBATED BY LAW IN DONATIONS INTER VIVOS AND MORTIS CAUSA. Art. 1506. — In all dispositions inter vivos or mortis causa, impos- sible conditions, those which are contrary to the laws or to morals, are reputed not written. 12 R. 56. Art. 1507. — Substitutions smdfidci commissa arc and remain pro- hibited. Every disposition by which the donee, the heir or legatee, is charged to preserve for or to return a thing to a tliird person, is null, even with regard to the donee, the instituted heir or legatee. In consequence of this article, the trebellianic portion of the civil law, that is to say, the portion of the property of the testator, which the instituted heir had a right to retain, when he was charged with afidei commissa or fiduciary bequest, is no longer a part of our law. 4 L. 502, 212 ; 6 L. 231 ; 12 L. 19 ; 13 L. 1 ; 18 L. 21 ; 4 N. S. 45 ; 1 E. 115 ; 2 A. 377 ; 8 A. 482, 494; 5 A. 476. Art. 1508. — The disposition by which a third person is called to take the gift, the inheritance, or the legacy, in case the donee, the heir or the legatee does not take it, shall not be considered a substitution and shall be valid. 3 A. 491 Art. 1509. — The same shall be observed as to the disposition ^nter vivos or mortis causa, by which the usufruct is given to one, and the naked property to another. 7N. S. 414; IE. 115; 3 A. 494. CHAPTER V. OF THE DONATIONS INTER VIVOS (BETWEEN LIVING PERSONS.) Section I. — General Dispositions. Art. 1510. — There are three kinds of donations i?itcr vivos: The donation purely gratuitous, or that which is made without con- dition and merely from liberality ; The onerous donation, or that which is burdened with charges im- posed on the donee ; The remunerative donation, or that the object of which is to recom- pense for services rendered. Art. 1511. — The onerous donation is not a real donation, if the 14 210 OF DONATION'S AND TESTAMENTS. value of the object given does not manifestly exceed that of the charges impossed on the donee. Art. 1512. — The remunerative donation is not a real donation, if the value of the services to be recompensed thereby being appreciated in money, should be little inferior to that of the gift. 2 K. 292 ; See 6 L. SSO. Art. 1513. — In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges or of the services. 6 L. 8S0 ; 11 E. 302 ; 3 A. 230. Art. 1514. — A donation inter vivos can comprehend only the pre- sent property of the donor. If it comprehends property to come, it shall be null with regard to that. lOL. 85; 2 A. T76. Art. 1515. — The donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals. Art. 1516. — Every donation inter vivos made on conditions, the execution of which depends on the sole will of the donor, is null. Art. 1517. — It is also null if it was made on condition of paying other debts and charges than those that existed at the time of the dona- tion, or were expressed either in the act of donation, or in the act that was to be annexed to it. Art. 1518. — In case the donor has reserved to himself the liberty of disposing of any object comprised in the donation or of a stated sum on the property given, if he dies without having disposed of it, that ob- ject or sum shall belong to the heirs of the donor, any clause or stipu- lation to the contrary notwithstanding. Art. 1519. — The four preceding articles are not applicable to do- nations of which mention is made in the eighth and ninth chapters of the present title. 15 L. 562. Art. 1520. — The donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but cannot reserve it for himself. 11 R. 302; 4 A. 36. Art. 1521. — The donor may stipulate the right of return of the ob- jects given, either in case of his surviving the donee alone, or incase of his surviving the donee and his descendants. That right can be stipulated for the advantage of the donor alone. 6 L. 231 ; 12 L. 207. Art. 1522. — The effect of the right of return is, that it cancels all alienations of the property given, that may have been made by the do nee or his descendants, and causes the property to return to the donor free and clear of all incumbrances and mortgages, except, however, the mortgage for the dowry and matrimonial agreements, if the other pro- perty of the husband, being the donee, be not sufl&cient, and only in case the donation was made to him by the same marriage contract, which gave rise to such rights and mortgages. 211 OF DONATIONS AND TESTAMENTS. 21 Section II. — Of the form of Donations inter vivos. Art. 1.523. — An act shall bo passed before a notary public and two witnesses of every donation inter vivos of immovable property, of slaves or incorporeal things, such as rents, credits, rights or actions, under tho penalty of nullity. S N. S. 12G ; 2 L. 209 ; IG L. 271 ; 3 R. 73; 12 K. 76; 1 A. 237; 2 A 724 Art. 1524. — No feigned delivery of immovables or slaves given shall have effect against third persons. Art. 1525. — A donation inter vivos, even of movable effects, will not be valid, unless an act be passed of the same, as is before pre- scribed. Such an act ought to contain a detailed estimate of the effects given. 4 N. S. 464 ; 17 L. 305 ; 3 E. 78 ; 6 A. 766. Art. 1526. — The manual gift, that is, the giving of corporeal mov- able effects accompanied by a real delivery, is not subject to any forma- lity. See 12 R. 76. Art. 1527. — A donation inter vivos shall be binding on the donor, and shall produce effect only from the day of its being accepted in pre- cise terms. The acceptance may be made during the lifetime of the donor by a posterior and authentic act, but in that case the donation shall have effect, with regard to the donor, only from the day of his being notified of the act establishing that acceptance. 6 L. 231, 245 ; 13 L. 404. Art. 1528. — Yet if the donation has been executed, that is, if the donee has been put by the donor into corporal possession of the effects given, the donation, though not accepted in express terms, has full effect. 2 L. 88. Art. 1529. — If the donee be of full age, the acceptance may bo made by him, or in his name by his attorney in fact having special power to accept the donation which is made, or a general power to accept tho donations that have been or may be made. Sec 6 L. 231 ; 2 L. 335. Art. 1530. — The acceptance can only be made by the donee person- ally, or by his attorney in fact during his life. If he refuse or neglect to accept, his creditors cannot accept it in his stead, under the pretext that the refusal has been in fraud of their rights. Art. 1531. — If the donee die before having accepted, the acceptance cannot be made by his heirs, and tho donation remains without effect. Art. 1532. — A married woman cannot accept a donation without the consent of lier husband, and in case of the husband's refusal, with- out being authorized by the judge, conformably to what is prescribed in the title of husband and ivife. Art. 1533. — A donation made to a minor under the age of puberty, must be accepted by his tutor. A minor arrived at the age of puberty, but not emancipated, must accept it under the authorization, or with the concurrence of his curator. 212 OF DONATIONS AND TESTAMENTS. Nevertheless the parents of a minor, whether he be arrived at the age of puberty or not, whether he be or be not emancipated, and the other legitimate descendants, even in the lifetime of the parents, though they be neither tutors nor curators to the minor, ma^- accept for him. 6 L. 231, 245. Art. 1534. — If a donee, being of full age, be under interdiction, the acceptance is made ibr him by his curator. Art. 1535. — A person deaf and dumb, knowing how to write, may accept for himself, or by an attorney in fact. If he cannot write, the acceptance shall be made by a curator ap- pointed by the judge for that purpose. Art. 153G. — Donations made for the benefit of an hospital, of the poor of a community, or of establishments of public utility, shall be ac- cepted by the administrators of such communities or establishments. ITL. 46, 312; 2 E. 4.3S. Art. 1537. — A donation duly accepted is perfect by the mere con- sent of the parties ; and the property of the objects given is transferred to the donee, without the necessity of any other delivei-y. Art. 1538. — The property given passes to the donee with all its charges, even those which the donor has imposed between the time of the donation and that of the acceptance. Art. 1539. — The universal donee is bound to pay the debts of the donor which existed at the time of the donation, but he can discharge himself therefrom by abandoning the property given. Art. 1540. — If the whole of the effects of the donor have been given to several donees, each for a certain proportion, each of them is bound for the debts for the portion of which he is the donee. Art. 1541. — When the donation comprehends property that may legally be mortgaged, the act of donation, as well as the act of accept- ance, whether the acceptance be made by the same or a separate act, must be registered within the time prescribed for the registry of mort- gages, in a separate book kept for that purpose by the register of mort- gages, Avhich jjook shall be open to the inspection of all parties requiring it. Art. 1542, — This registry shall be made at the instance of the hus- band, when the property has been given to his wife ; and if the husband does not comply with this formality, the wife may cause it to be com- plied with, without requiring authorization for that pvirpose. Art. 1543. — When the donation is made to minors, to persons under interdiction, or to public establishments, the registry shall be made at the instance of the tutors, curators or administrators. Art. 1544. — The want of registry may be pleaded by all persons concerned except the donor, those persons whose duty it was to cause the registry to be made, and their representatives. Art. 1545. — Minors, persons under interdiction, or married women, are not entitled to relief for the want of acceptance or registry of dona- tions ; but they have in such case their resource against their tutors, curators or husbands ; and even in case of the insolvency of such tutors, curators or husbands, they shall not be entitled to relief by way of res- titution. 213 OF DONATIONS AND TESTAMENTS. 212 Section III.— 0/" the Exception to the Rule of the Irrevocability oj Donations Inter Vivos. Art. 1546. — Donations ijiter vivos are liable to be revoked or d-.s- solvcd on account of the following causes : 1 . The ingratitude of the donee ; 2. The non-fulfilment of the eventual conditions which suspend their consummation ; 3. The non-performance of the conditions imposed on the donee ; 4. The donor's having children after the donation ; 5. The legal or conventional return. 17 L. 365. Art. 1547. — Revocation on account of ingratitude can take place only in the three following cases : 1. If the donee has attempted to take the life of the donor; 2. If he has been guilty towards him of cruel treatment, crimes or grievous injuries ; 3. If he has refused him food when in distress. 17 L. 865; It E. 302. Art. 1548. — An action of revocation for cause of ingratitude must be brought within one year from the day of the act of ingratitude, imputed by the donor to the donee, or from the day that the act was made known to the donor. This revocation cannot be sued for by the donor against the heirs of the donee, nor by the heirs of the donor against the donee ; unless in the latter case the suit was brought by the donor, or he died within the year in which the act of ingratitude was committed. 17 L. 365. Art. 1549. — Revocation for cause of ingratitude affects neither the alienation made by the donee nor the mortgages, nor the real incum- brances he may have laid on the thing given, provided such transactions were anterior to the bringing of the suit of revocation. Art. 1550. — In case of revocation for cause of ingratitude, the donee shall be obliged to restore the value of the thing given, estimating such value according to its worth at the time of bringing the action, and the proceeds from the day that it is brought. Art. 1551. — Donations in consideration of marriage are not revo- cable for cause of ingratitude, when there are children of that marriage. When there are not, the revocation takes place with regard to the donee, but without impairing the rights resulting from the marriage in favor of the other party to the marriage. Akt. 1552. — When an eventual condition, which suspends the exe- cution of a donation, can no longer be accomplished, as if the donation was to be executed on the arrival of a certain vessel, and the vessel is lost, the donation is dissolved of right. Art. 1553. — But if the condition be potestative, that is, if the donee is obliged to perform or prevent them, their non-fulfilment does not, of riglit, operate a dissolution of the donation ; it must be sued for and decreed judicially. Art. 1554. — An action of revocation or rescission of a donation on account of the non-execution of the conditions imposed on the donee, is 214 OF DONATIONS AND TESTAMENTS. subject only to the usual prescription, which runs only from the day that the donee ceased to fulfil his obligations. Art. 1555. — In case of revocation or rescission on account of the non-execution of the conditions, the property shall return to the donor free from all encumbrances or mortgages created by the donee ; and the donor shall have, against any other persons possessing the immovable property given, all the rights that he would have against the donee himself Art. 155G. — All donations mter vivos, made by persons having neither children nor descendants actually living at the time of the donation, of whatever value those donations may be, and on whatever account they may have been made, should they even be mutual, not excepting such as were made in favor of marriage by any but the ascendants of the married persons, or by the one of them to the other, shall be considered as revoked up to the disposable portion by the birth of children to the donor, even of a posthumous child, or by the legiti- mation of a natural child by a subsequent marriage, if the child be born since the donation. 17 L. 805 ; 3 E. 441 ; See 8 M. 707 ; 1 N. S. 465. Art. 1557. — That revocation takes place even though the child of the donor Avere conceived at the time of the donation. Art. 1558. — The property comprised in a donation revoked shall return to the estate of the donor, free from all charges and mortgages, impo'^ed upon it by the donee. It is not liable to the restitution of the dowry of his wife, or to any other matrimonial obligations whatever, even in default of other property ; and this shall takte place even though the donation be made in favor of the marriage of the donee, and inserted in the contract, and though the donor bound himself as security by the donation to the execution of the contract. Art. 1559. — Donations, thus revoked, cannot be revived nor become again effectual, cither by the death of the donor's child or by any con- firmative act ; and if the donor desires to give the same property to the same donee, either before or after the death of the child, by whose birth the donation has been revoked, he can do it only by a new disposition. Art. 15G0. — Every clause or agreement, by which the donor may have renounced the revocation of the donation on account of the birth of a child, shall be held null and of no effect. Art. 15G1. — The donee, his heirs or assigns cannot plead prescrip- tion in support of the donation revoked by the birth of a child, until after a possession of thirty years, to commence only after the day of the birth of the last of the donor's children, be the children even posthu- mous : and this prescription is liable to all legal interruptions. Art. 1562. — In all cases, in which the donation is revoked or dis- solved, the donee is not bound to restore the fruits by him gathered previous to the demand for the revocation or rescission. ]iut in case of the non-fulfilment of conditions, which the donee is bound to fulfil, if it be proved to have proceeded from liis fault, he may be condemned to restore the fruits by him received since his neglect to fulfil the conditions. 215 OF DONATIONS AND TESTAMENTS. 2 IS CHAPTEK VI. OF DISPOSITIONS MORTIS CAUSA (IN PROSPECT OF DEATH). Section I. — Of the Testament. Art. 15G3, — No disposition mortis causa shall henceforth be made otherwise than by last will or testament. All other form is abrogated. But the name given to the act of last will is of no importance, and dispositions may be made by testament under this title, or under that of institution of heir, of legacy, codicil, donation mortis causa, or under any otlier name indicating the last will, provided that the act be clothed with the forms required for the validity of a testament, and the clauses it contains, or the manner in which it is made clearly establish tliat it is a disposition of last will. Thus an act of last will, by which an individual disposes of his property or of part tliereof, in any manner whatsoever, whether he has instituted an heir or only named legatees, whether he has or has not charged any one with the execution of his last will, is considered as a testament, if it be, in other respects, clothed with the formalities re- quired by law. 3K. 78, 411; 17 L. 144; 2 A. 30. Art. 1564. — A testament is the act of last will clothed with certain solemnities, by which the testator disposes of his property, either uni- versally or by universal title, or by particular title. Art. 1565. — A testament cannot be made by the same act, by two or more persons, either for the benefit of a third person, or under the title of a reciprocal or mutual disposition. Art. 1566. — The custom of willing by testament, by the intervention of a commissary or attorney in fact is abolished. Thus the institution of heir and all other testamentary dispositions committed to the choice of a third person, are null, even should that choice have been limited to a certain number of persons designated by the testator. Section II. — General Rules on the Form of Testaments. Art. 1567. — All testaments are divided into three principal classes, to wit : 1. Nuncupative or open testaments; 2. M3'6tic or sealed testaments ; 3. Olographic testaments. Art. 1568. — Testaments, whether nuncupative or mystic, must be drawn up in writing, either by the testator himself or by some other per- son, under his dictation. C L. 722. Art. 1 569. — The custom of making verbal testaments, that is to say, resulting from tlie mere deposition of witnesses, who were present when the testator made known to them his will, without his having committed it or caused it to be committed to writing, is abrogated. 216 OF DOXATIOXS AND TESTAMENTS. Art. 1570. — Nuncupative testaments may be made by public act, or by act under private signature. Art. 1571. — The nuncupative testaments by public act must be re- ceived by a notary public, in presence of three witnesses residing in the place where ihe will is executed, or of five witnesses not residing in the place. This testament must be dictated by the testator, and written by the notary as it is dictated. It must then be read to the testator in presence of the witnesses. Express mention is made of the whole, observing that all those for- malities must be fulfilled at one time, without interruption and without turning aside to other acts. 5 L. 100 ; 9 L. 458; 11 L. 361 ; 12 L. 114. 4^9 ; 13 L. 104 ; 10 L. SO ; 15 L. 25; 12 K. 35, C39 ; 5 A. 5G5; 1 N. S. 73 ; 3 N. S. 367 ; 6 N. S. 143 ; 6 N. S. 263 ; 3 N. S. 458. Art. 1572. — This testament must be signed by the testator ; if he declares that he knows not how, or is not able to sign, express mention of his declaration, as also of the cause that hinders him from signing, must be made in the act. See 12 L. 439. Art. 1573. — This testament must be signed by the witnesses, or at least by one of them for all, if the others cannot write. Art. 1574. — A nuncupative testament, under private signature, must be written by the testator himself or by any other person, from his dic- tation ; or even by one of the witnesses, in presence of five witnesses residing in the place where the will is received, or of seven witnesses residing out of that place ; Or it will suffice if, in the presence of the same number of witnesses, the testator presents the paper, on which he has written his testament, or caused it to be written out of their presence, declaring to them that that paper contains his last will. 6 L. 722 ; 12 L. 483 ; 15 L. 28 ; 17 L. 4 ; 1 E. 48, 359 ; 2 A. 721 ; 1 N. S. 577. Art. 1575. — In either case, the testament must be read by the tes- tator to the witnesses, or by one of the witnesses to the rest, in presence of the testator; it must be signed by the testator, if he knows how or is able to sign, and by the witnesses or at least by two of them, in case the others know not how to sign, and those of the witnesses who do not know how to sign, must affix their mark. This testament is subject to no other formality than those prescribed by this and the preceding article. 2 A. 724; 6 A. 21.3. Art. 1576. — In the country it suffices for the validity of nuncupa- tive testaments under private signature, if the testament be passed in the presence of three witnesses residing in the place where the testa- ment is received, or of five witnesses residing out of that place, provided that in this case a greater number of witnesses cannot be had. 6 L. 722 ; 12 L. 483 ; 15 L. 28 ; 1 E. 48, 359 ; 2 A. 724 ; See 1 N. S. 4SS ; 12 M. 503. Art. 1577. — The mystic or secret testament, otherwise called the closed testament, is made in the following manner : The testator must sign his dispositions, whether he has written them himself, or has caused them to be written "by another person. 217 OF DONATIONS AND TESTAMENTS. 217 The paper containing those dispositions, oi- the paper serving as their envelope, must be closed and sealed. The testator shall present it thus closed and scaled to the notary and to seven witnesses, or he shall cause it to bo closed and sealed in their presence. Then he shall declare to the notary, in presence of the wit- nesses, that that paper contains his testament written by himself, or by another by his direction, and signed by him the testator. The notary shall then draw up the act of superscription, which shall be written on that paper or on the sheet that serves as its envelope, and tliat act shall be signed by the testator, and by the notary and the witnesses. 5L. 8S7; 10 L. 319; 15 L. 88. Art. 1578. — All that is above prescribed shall be done without in- terruption or turning aside to other acts ; and in case the testator, by reason of any hindrance that has happened since the signing of the tes- tament, cannot sign the act of superscription, mention shall be made of the declaration made by him thereof, without it being necessary, in that case, to increase the number of witnesses. 1 N. S. 73 ; 10 L. 319 ; 15 L. SS ; Sec 12 R. 639. Art. 1579. — Those Avho know not how or are not able to write, and those who know not how or are not able to sign their names, cannot make dispositions in the form of the mystic will. Art. 1580. — If any one of the witnesses to the act of superscription know not how to sign, express mention shall be made thereof. In all cases, the act must be signed at least by two witnesses. Art. 1581. — The olographic testament is that which is written by the testator himself. In order to be valid, it must be entii-ely written, dated and signed bj the hand of the testatoi-. It is subject to no other form, and may.be made any where, even out of the State. IT L. 4 ; 2 K. 42T ; 3 A. 579; Seo 12 M. 713 ; 5 M. 1C9. Art. 1582. — Erasures not approved by the testator are considered as not made ; and words added by the hand of another, as not written. If the erasures are not so made as to render it impossible to distin- guish the words covered by tliem, it shall be left to the discretion of the judge to declare if he considers them important, and in this case only to decree the nullity of the testament. Art. 1583. — It suffices, for the validity of a testament, that it be valid under any one of the forms prescribed by law, however defective it may be in the form under which the testator may have intended to make it. 15 L. 28; 6 N. S. 203 ; 5 M. 169 ; 12 E. 35 ; 2 A. 607. Art. 1584. — The following persons are absolutely incapable of being witnesses to testaments : 1. Women of what age soever; 2. Male children who have not attained the age of sixteen years com- plete ; 3. Persons insane, deaf, dumb or blind ; •1. Persons whom the criminal laws declare incapable of exercising civil functions; 218 OF DONATIONS A^D TESTAMENTS. 5. Slaves. nL.361; 12 1*25; 2 A. 667. Art. 15S5. — Neither can testaments be Avitucssed by those who ar^ constituted heirs or named legatees, under whatsoever title it may be. 12 R. 638. Art. 1586. — Mystic testaments are excepted from the preceding ar- ticle. Art. 1587. — By the residence of the witnesses in the place where the testament is executed, is understood their residence in the parish where that testament is made ; that residence is necessary only when it is expressly required by law. 5L.100; 6L. 722. Art. 1588. — The formalities, to which testsnnents are subject by the provisions of the present section, must be observed ; otherwise the tes- taments are null and void. 5L. 100,387; 6 L. 722 ; 10 L. 319; IGL.SO; 12 R.G5; 3A.579; 6 A. 243. Art. 1589. — But testaments made in foreign countries, or in the other States and territories of tlie Union, sliall take eflFect in this State, if they be clothed with all the formalities prescribed for the validity of wills in the place where they have been respectively made. 8 L. 635 ; S N. S. 232 ; 7 L. 135 ; 3"R. 235 ; 3 A. 579 ; See C. P. Ai-t 924 and amendments ; Sec 6 M. 568, C42 ; 5 N. S. 48. Section III. — Particular Rules on the Form of crtain Testaments. Art. 1590. — The wills of persons employed in armies in the field, or in a military expedition, may be received by a commissioned officer, in presence of two witnesses. Art. 1591. — If the testator is sick or wounded, they may be received by the physician or surgeon attending him, assisted by two witnesses. Art. 1592. — These testaments are subject to no other formalities than that of being reduced to writing, and being signed by the testator, if he can write, by the persons receiving them, and by the witnesses. Art. 1593. — The testament, made in the form abo^e prescribed, sliall be null, six months after the return of the testator to a place, where he has an opportunity to employ the ordinary forms. Art. 1594. — Testaments, made during a voyage at sea, may \q re- ceived by tlie captain or master, in i^resence of three witnesses taken by preference from among the passengers ; in default of passengers, from among the crew. Art. 1595. — The testament made at sea, can contain no disposition in favor of any of the persons employed on board the vessel, unless they be relations of the testator. Art. 1596. — This testament, like the preceding one, is subject to no other formality than that of being reduced to writing, and being signed by the testator, if he can write, by him who receives it, and by those in whose presence it is received. 219 OF DONATIONS AND TESTAMENTS. 219 Art. 1597. — The testament made at sea shall not be valid unless the testator dies at sea, or within three months after he has landed in a place, where he is able to make it in the ordinary forms. Section IV. — Of Testamentary Disjjositions. Art. 1598. — Testamentary dispositions are either universal, under an universal title, or undqr a particular title. Each of these dispositions, whether it be made under the name of institution of heir, or under the name of legacy, shall have its effect, ac- cording to the rules hereafter established for universal legacies, for lega- cies under an universal title, and for particular legacies. 8 L. 489 ; IT L. 46. § 1. — Of Unitersal Legacies. Art. 1599. — An universal legacy is a testamentary disposition, by which the testator gives to one or several persons the whole of the pro- perty which he leaves at his decease. 2 R. 1 ; 10 R. 512 ; 12 R. 5G. Art. 1600. — When, at the decease of the testator, there are heirs to whom a certain proportion of the property is reserved by law, these heirs are seized of right, by his death, of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the effects included in the testament. 8 K 489 ; 15 L. 5G2 ; 3 A. 805. Art. 1601. — Nevertheless, in the same case, the universal legatee will have the enjoyment of the effects included in the testament, from the day of the decease, if the demand for the delivery lias been made within a year from that period ; if not, this enjoyment will only commence from the day of the judicial demand, or from the day on which the delivery has been agreed upon. Art. 1602. — When, at the decease of the testator, there are no heirs, to whom a proportion of his proj^erty is reserved by law, the universal legatee, by the death of the testator, is seized of right of the effects of the succession, without being bound to demand the delivery thereof. 8 L. 489 ; 15 L. 562 ; 10 R. 512 ; 8 A. 705 ; 12 R. 56. Art, 1603. — The universal legatee, who concurs witli an heir to whom the law has reserved a certain proportion of the effects of the suc- cessj^i, is bound for the debts and cliarges of the succession personally for his part and proportion, and in case of mortgage on his part, for the whole ; and he is bound to discharge all the legacies, saving the case of reduction. 2R. 382; 10 R. 512; 12 R. 56. § 2. — Of Legacies under an Universal Title. Art. 1604. — The legacy, under an universal title, is that by which a testator bcqueatlies a certain proportion of the effects of which the law permits him to dispose, as an half, a third, or all his immovables, or all his movables, or a fixed proportion of all hie immovables or of all hia movables. 8L.48; 12U. 56; 5 A. 199. 220 OF DONATIONS AND TESTAMENTS. Art. 1605. — Legatees under an xmivcrsal title arc bound to demand the delivery of the heirs, to whom a proportion of the effects is reserved by law; in default of heirs, of the universal legatees; and in default of those, of the next heirs in the order established in the title of succes- sions. Art. 1606. — The legatee under an universal title is bound, like the universal legatee, for the debts and charges of the succession, personally for his part, and in case of mortgage on his portion, for the whole. SL. 43; 5 A. 199. Art. 1607. — When the testator has disposed only of a part of the disposable portion, and has done it under an universal title, the legatee under this title is bound to contribute with his natural heirs to the payment of particular legacies. Art. 1608. — In no case can the instituted heir, under whatever title he may be, claim the falcidian portion, that is, the fourth which the law authorized the testamentary heir to retain from the succession, in case more than three-fourths of it were absorbed by the legacies ; this right being abolished. § 3. — Of Disinherison. Art. 1609. — Forced heirs may be deprived of their legitime, or legal portion, and of the seisin granted them by law, by the effect of disinherison by the testator, for just cause, and in the manner hereafter prescribed. Art. 1610. — A disinherison, to be valid, must be made in one of the forms prescribed for testaments. Art. 1611. — The disinherison must be made byname and expressly, and for a just cause, otherwise it is null. Art. 1612. — There are no just causes of disinherison but thoso expressly recognized by law, in the following articles. Art. 1613. — The just causes for which pirents may disinherit their children, are ten in number, to wit : 1. If the child has raised his or her hand to strike the parent, or if he or she has really struck the parent ; but a mere threat is not suffi- cient ; 2. If the child has been guilty, towards a parent, of cruclt}^, of a crime or grievous injury; 3. If the child has attempted to take the life of cither parent ; 4. If the child has accused a parent of any capital crime, except, however, that of high treason ; 5. If the child has refused sustenance to a parent, having the meauf* to afford it ; 6. If the child has neglected to take care of a parent, become insane ; 7. If the child refused to ransom them, when detained in captivity ; 8. If the child used any act of violence or coercion to hinder a parent from making a will ; 9. If the child has refused to become security for a parent, having the means, in order to take him out of prison ; 221 OF DONATIONS AND TESTAMENTS. 221 10. If the son or daughter, being a minor, marries without the con sent of his or her parents. 2 L. 581 ; 2 A. 293. Ai;t. 1G14. — The ascendants may disinherit their legitimate de- scendants, coming to their succession, for the first nine causes expressed in the preceding article, when the acts of ingratitude there mentioned have been committed towards them, instead of towards their parents ; but they cannot disinherit their descendants for the latter cause. Art. 1615. — Legitimate children, dying without issue, and leaving a parent, cannot disinherit him or her, unless for the seven following causes, to wit : 1. If the parent has accused the child of a capital crime, except, however, the crime of high treason ; 2. If the parent has attempted to take the child's life ; 3. If the parent has, by any violence or force, hindered the child from making a will ; 4. If the parent has refused sustenance to the child in necessity, having the means of aifording it ; 5. If the parent has neglected to take care of the child, while in a state of insanity ; 6. If the parent has neglected to ransom the child, when in cap- tivity ; 7. If the father or mother have attempted the life the one of the other, in which case the child or descendant, making a will, may disin- herit the one who has attempted the life of the other. Art. 1616. — The testator must express in the will for whal reasons he disinherited his forced heirs or any of them, and the other heirs of the testator are moreover obliged to prove the fr.cts on which the disin- herison is founded, otherwise it is null. Art. 1617. — When all the forced heirs have been legally disin- herited, the heir instituted universally is seized in full right of the succession, without being bound to demand the delivery of it, in the same manner' as if there were no forced heirs, conformably to what is prescribed above. § 4. — Of FarticuJar Legacies. Art. 1618. — Every legacy, not included in the definition before given of universal legacies and legacies under an universal title, is a legacy under a particular title. Art. 1619. — Every legacy under a particular title gives to the legatee, from the day of the testator's death, a right to the thing be- queathed, which right may be transmitted to his heirs or assigns ; and this takes place as well in testamentary dispositions, universal or under an universal title, as in those made under a particular title. Nevertheless, the particular legatee can take possession of the thing bequeathed, or claim the proceeds or interest thereof, only from the day the demand of delivery was formed, according to the order herein before established, or from the day on which that delivery was voluntarily granted to him. 17 L. 812. 222 OF DONATIONS AND TESTAMENTS. Art. 1620. — The legatee is not bound to demand the delivery of the legacy, if the thing bequeathed to him is in his possession at the time of the opening of the succession, but he is bound to give it up for the purpose of contributing to the payment of debts, in case it be liable for any. Art. 1G21. — Neither is the testamentary executor, who has the seisin of the effects of the succession, and who is at the same time a legatee, bound to demand the delivery of his legacy : he can retain it in his possession, subject to the same restitution. Art. 1622. — The legatee who, of his own authority, takes possession of his legacy, is bound to restore the fruits and pay the interest of all moneys of which he may have possessed himself. 5 A. 265. Art. 1623. — The delivery of legacies under a particular title must be demanded of the testamentary executor, who has the seisin of the succession. If the testamentary executor has not the seisin, or if his functions have expired, the legatees must apply to the heirs. Art. 1624. — The interest or proceeds of the thing bequeathed shall accrue to the benefit of the legatee, from the day of the decease, without his having brought suit for the same : 1 . When the testator has expressly declared in his will to that effect ; 2. When an annuity or pension has been bequeathed by way of main- tenance. Art. 1625. — The costs of suing for delivei'y shall be at the charge of the succession, unless the testator has directed otherwise, and pro- vided also that those costs shall cause no deduction of the legitime re- served to the forced heirs. Art. 1626. — The heirs of the testator, or the debtors of a legacy, shall be personally bound to discharge it, each in proportion to the part that falls to him in the succession. They shall be bound by mortgage for the whole, to the amount of the value of the immovable property of the succession withheld by them. 8 A. 491. Art. 1627. — Particular legacies must be discharged in preference to all others, even though they exhaust the whole succession, or all that re- mains after the payment of the debts and the contributions for the legitimate portion, in case there are forced heirs. 8L. 48; 11 L. 429; 17 L. 312. Art. 1628. — If the effects do not suffice to discharge the particular legacies, the legacies of a certain object' must first be taken out. The surplus of the effects must then be proportionally divided among the legatees of sums of money, unless the testator has expressly declared that sucb a legacy is given as a recompense for services. 11 L. 429. Art. 1629. — The legacy bequeathed shall be delivered with every thing that appertains to it, in the condition in which it was on the day p£ the donor's decease. 2 N. S. 44C. 223 OF DONATIONS AND TESTAMENTS. 223 AuT. 1630. — When a person who has bequeathed the property of an "mmovable, has afterwards augmented it by new purchases, the property 30 purchased, though it be contiguous, shall not, without a new disposi- tion, be considered as making part of the legacy. It is otherwise as to improvements or new buildings raised on the ground bequeathed, or an inclosure of which the testator has enlarged the area. Art. 1631. — If prior to the testament or subsequently, the thing has been mortgaged by the testator for his own debt or for tliat of an other, or if it be burdened with an usufruct, he who is to pay the legacy is not bound to discharge the thing bequeathed of the encumbrance, un- less he be required to do it by an express disposition of the testator. 8 A. 175. Art. 1632. — When the testator has bequeathed a thing belonging to another person, the legacy shall be null, whether the testator knew or knew not that the thing did not belong to him. Art. 1633. — When the legacy is of an indeterminate thing, the heir is not obliged to give it of the best quality, nor can he offer it of the worst. Art. 1634. — A legacy made to a creditor shall not be deemed to be in compensation of the debt, nor a legacy made to a servant in compen- sation of his wages. Art. 1635. — The legatee by a particular title shall not be liable to the debts of the succession, except the reduction of the legacies as is before provided, and except the action of mortgage of the creditors. 6 M. 70T. Art. 1636. — The legacy of a certain object is extinguished by the loss of the object ; but if the object is only destroyed in part, as if a house bequeathed has been destroyed by fire, the legacy subsists for what remains, that is, for the land on which it was situated. Section V. — Of the Opening and the Proof of Testaments^ and of Testamentary Executors. Art. 1637. — No testament can have effect unless it has been pre- sented to the judge of the parish in which the testator died, if he died within the State, or in which his principal estates lie, if he died out of the State ; the judge shall order the execution of the testament after its being opened and proved, in the cases prescribed by law. 7L. 37; 10 L. 350; 12 L. 357; 3N. S. 473; 16L. 80; 6 A. 104. Art. 1638. — The execution of a testament shall not be ordered un- til the decease of the testator has been sufficiently proved to the judge to whom the testament is presented. Art. 1639. — When the decease of the testator has been sufficiently proved to the judge, to whom the testament is presented, he shall immediately proceed to open it, if it be scaled, and to the proof of it in presence of the notary and tlic witnesses who were present at the mak ing of it, and who are on the spot, or duly called. Art. 1640. — Nuncupative testaments, received by public acts, do 224 OF DONATIONS AND TESTAMENfS. not require to be proved, that their execution may be ordered , ihey arc full proof of themselves, unless they are alleged to be forged. 5L. 100; 10 L. 80; 17 L. 4. Art. 1641. — Nuncupative testaments under private signature can- not be executed, until they have been proved by the declaration on oath of at least three of the witnesses, vrho were present yrhen they were made. Art. 1642. — The declaration of the witnesses required for such proof must state in substance, not only that they recognize the testa- ment presented to them as being the same that was written in their pre-j sence by the testator himself or by another person by his direction, or which the testator had written or caused to be written out of their pre- sence, and which he declared to them contained his last will, as the case may be ; but also that they recognize their signatures and that of the testator at the foot of the testament, if they have signed it, or the sig- nature of him who signed for them respectively, in case of their not having signed for want of knowing how. Art. 1643. — The execution of mystic testaments cannot be ordered until they have been in like manner proved by the declaration on oath, of at least four of the witnesses who were present at the act of super- scription. Art. 1644. — The declaration of the witnesses required for the proof of mystic testaments, must state in substance, that they recognize the sealed packet presented to them to be the same that the testator deliver- ed to the notary in their presence, declaring to him that it contained his testament ; and also that they recognize their signatures and that of the notary at the foot of the superscription, if they have signed it, or the signature of him who signed for them respectively, if, not knowing how to write, they did not themselves sign the act of superscription. Art. 1645. — When the notary who has passed the act of superscrip- tion is one of the witnesses appearing, his declaration on oath, with that of two witnesses only, is sufficient proof of a testament. Art. 1 646. — If any of the witnesses who were present at the making of the nuncupative testament under private signature, or at the act of ' superscription of the mystic testament, be dead or absent, so that it be not possible to procure the number of witnesses prescribed by law for proving the testament, it will be sufficient to prove it by the declarations of the witnesses living, who are in the State. Art. 1647. — If none of the persons who were present at such acts are living in the State, but all are absent or deceased, it will be sufficient for the proof of the testament if two credible persons make a declaration on oath that they recognise the signatures of the different persons who have signed the will or the act of superscription. Art. 1648. — The olographic testament shall be opened, if it be sealed ; and it must be acknowledged and proved by the declaration of two credible pei'sons, who must attest that they recognise the testament as being entirely written, dated and signecT in the testator's handwriting, as having often seen him write and sign during his lifetime. 2 R. 427. 225 OF DONATIONS AND TESTAMENTS. 225 Art. 1G49. — When a nuncupative testament lias been put under an envelope, or sealed, merely through precaution on the part of the testa- tor, without any act of superscription or any indication of the names of the witnesses who have signed the testament, the judge shall open it in presence of the party requiring it, and of two witnesses called in for that purpose. 2 R. 427. Art. 1G50. — When the judge has complied with all the formalitie? required for opening and proving a testament, he shall order its execu- tion, and he shall moreover direct that such testaments as have not beci? passed by public act, be filed, after having inscribed on them bis parapt nc varietur, at the top and bottom of each page. 2 K. 42T. Art. 1651. — The execution of the dispositions contained in testa- ments, is usually confided by the testator to one or more testamentary executors. Art. 1652. — The testator may give his testamentary executor the seisin of the whole of his succession, or only of a certain determinate portioi, according as he has expressed himself, saving the restrictions contained in the following articles. But this seisin cannot continue beyond a year and a day from the decease of the testator, if he died in the State, or from the day on which his death was first known, if he died out of the State. If the testator has not granted the seisin to the testamentary execu- tor, the latter cannot require it. 1 L. 165 ; 6 L. 97 ; 10 L. 29 ; Seo 5 A. 645 ; 15 L. 69. Art. 1653. — The testator may express bis intention to grant the seisin of his estate to the testamentary executor, either in express terms, by authorizing him to take possession of the ivhole^ or apart of the estate of his succession after his death., or by merely appointing him testamen tary executor and detainer of his estate, the word detainer sufficiently announcing that the executor is to be seized of the property of the suc- cession. But if the executor testamentary be merely appointed testamentary executor without any other power, his functions are, confined to see to the execution of the legacies contained in the will, and to cause the inventoiy and other conservatory acts of the property of the succession to be made. 10 L. 29 ; 12 L. 73 ; See 15 L. 69. Art. 1654. — When of the testator's heirs some are absent and not represented in the State, the judge shall appoint for them a counsel, whose duty it shall be to assist for them at the inventory of the cS'ects left by the testator, to take care of their interests, and to oppose every thing which may prejudice the same. 7 N. S. 615 ; 6 L. 653 ; 12 L. 73 ; 15 L. 66, 69 ; 7 R. 167. Art. 1655. — It shall also be the duty of this counsel to inform, with all possible diligence, those whom he represents, of the opening of the Buccession, and to correspond with them ; and when he has once accept- ed this charge, he cannot divest himself of it until the heirs have sent their power of attorney, or until the succession is liquidated. 6 L. 653 ; 16 L. 66, 69. 15 226 OF DONATIONS AND TESTAMENTS. Art. 1656. — He who cannot obligate himself cannot be a testamen tary executor. AuT. 1657. — A married woman cannot accept a testamentary execu- torship without the consent of her husband. If there is between them a separation of property, she may accept it with the consent of her husband, or, on his refusal, she may be author- ized by the court, conformably to what is prescribed by the title of hus- band and wife. 3 Pv. 8C8. Art. 1658. — A minor cannot be testamentary executor, even with the authorization of his tutor or curator. Art. 1659. — The testamentary executor shall cause the seals to be affixed, if there be any minor, interdicted or absent heirs; he shall cause an inventory of the property of the succession to be made in the different parishes in which the testator has left property, by the parish judge or by any notary public duly authorized to that effect by the judge. 12 L. 357 ; See 15 L. 69. Art. 1660. — The presumptive heirs present, and the counsel of the absent heirs, must be notified to attend at the taking of the inventory. Art. 1661. — In default of funds sufficient to discharge the debts and legacies of sums of money, the testamentary executor shall cause himself to be authorized by the court to sell the movables and the slaves not employed on plantations, and if they are insufficient, the immovables to a sufficient amount to satisfy those debts and legacies. 6 L. 167; 17 L. 812 ; See 15 L. 69. ^ Art. 1662. — Except in the cases provided for in the preceding article, he cannot cause the immovables, nor the slaves employed there- on, to be sold, unless he is authorized by the will to do so. Art. 1663. — The testamentary executor shall proceed to the sale above mentioned and to the payment of the debts of the succession, in the same manner as is prescribed for curators of vacant successions. * 14 L. Ill; 15L. 69; 17 L. 812. Art. 1664. — The heirs can at any time take the seisin from the tes- tamentary executor, on offering him a sum sufficient to pay the movable legacies. See amendment to art. 1005 : 7 L. 3S4 ; 17 L. 312 ; 13 L. 1 ; 2 E. 8S2 ; 8 E. 819 ; 10 E. 193 ; 8 A. 705 ; G A. 64. Art. 1665. — The testamentary executor is bound, even after the expiration of his seisin, to see the testament faithfully executed. IL. 165; See IDE. 193. Art. 1 666. — He must render an account of his administration at the expiration of the year, commencing from the moment in which he had the seisin. Stat, loth March, 1837, j 96. — ^ G. All executors, administrators, curators of vacant successions and syndics, shall at least once in every twelve months render to the probate court a full, fair and perfect account of their administration, and on failure so to do, shall be dismissed from office, and pay ten per cent, per annum interest, on all sums for which he may be responsible from the date of the expiration of the twelve months aforesaid. 1 N. S. 243; 12 L. 613 ; 15 L. 69; 2 E. 851. 227 OF DONATIONS AND TESf AMENTS, 227 Art. 1667. — But after the rendition of this account, the judge may continue him in his functions, if the absent lieirs have not appeared or have not claimed their rights, on obliging him to give security for the sum or effects remaining in his hands. 6L. 167; 13 L. 1; 2 E. 851. Art. 1668. — If the testamentary executor is not continued in his functions, he must pay into the treasury of the State the balance in ftivor of the succession, in ten days after the approval and final settlement of his account, if he lives within fifty miles of the treasurer's oflace, and if he reside at a further distance, he shall be allowed one day for every twenty miles in addition to the above time. Art. 1669. — The testamentary executor, even after the expiration of his administration, is bound to continue to defend the suits commenced by or against him on account of the succession, until the heirs appear or cause tliemselves to be represented. See auiondment to art. 1179 ; 7 N. S. 615 ; in L. 435 ; 16 L. 344. Art. 1670. — The testamentary executor is not bound to accept the executorship, nor to give security, when he does accept it. Art. 1671. — If the testator has omitted to name a testamentary executor, or if the one named refuses to accept, the judge shall appoint one ex officio. 10 L. 530 ; 17 L. 4S6 ; 18 L. 392, 394 ; 2 R. 391 ; 3 A. 565 ; C. P. 924, 5, 7, 8. Art. 1672. — The testamentary executor, thus appointed by the judge, and called the dative testamentar}- executor, is bound to give security in the same manner as curators of vacant successions. IS L. 894. Art. 1673. — The powers of the testamentary executor do not go to his heirs. Art. 1674. — If there be several executors who have accepted, any one of them may act for them all, but they shall all be jointly and sev- erally accountable for the property subject to the executorship, unless the testator has divided their functions, and each of them has confined himself to that which to him was allotted. HE. 109; 1 A. 214; 3 A. 574. Art. 1675. — The expenses incurred by the executor for aflixing the seals, for the inventory, for the accounts and the other charges relative to his functions, shall be defrayed out of the succession. 3 A. 624. Art. 1676. — An executor who has had the seisin of all the estate of the succession, whether he were charged to sell it or not, shall be en- titled, for his trouble and care, to a commission of two and a half per cent, on the whole amount of the estimate of the inventory, making a deduction for what is not productive, arfid for what is due by insolvent debtors. 6 L. 324 ; 7 L. C62 ; 10 L. 29 ; 12 L. 73 ; 1 K. 400 ; 2 R. 446 ; 8 A. 624 ; 6 A. 487 ; See 5 N. S. 229 ; 3 L. 464 ; 4 A. 3S6 ; Sec 1062, 11S7, 1188. Art. 1677. — If the executor has not had a general seisin, his com- mission shall only be on the estimated value of the object which he has had in his possession, and on the sums put into his hands for the pur- pose of paying the legacies and other charges of the will. 10 L. 29; 12 L. COS. 228 OF DONirriONS AND TESTAMENTS. AuT. 1G78. — The commission shall be shared among the executors. if there be several, and if their functions are not divided by the testa tor. In this latter case, they shall be entitled to a commission on what has fallen to the administration of each respectively. 6 L. 324 ; 11 L. 224. Art. 1679. — Testamentary executors, to whom the testator has be- queathed any legacies or other gifts by his will, shall not be entitled to any commission, unless the testator has formally expressed the intention that they should have the legacies over and above tlieir commission. C L. 824 ; 15 L. 224 ; 1 A. 129 ; 3 A. 705 ; See 4 K. S97. Akt. 1680. — In no case shall the commission allowed to the testa- mentary executors aifect the legitime reserved to the forced heirs of the testators. Art. 1681. — Testaments made in foreign countries and other States of the Union, cannot be carried into effect on property in this State, without being registered in the court within the jurisdiction of which the property is situated, and the execution thereof ordered by the judge. 6 N. S. 621 ; 13 L. 221 ; 17 L. 4, 486 ; IS L. 570. Art. 1682. — This order of execution shall be granted without any other form than that of registering the testament, if it be established that the testament has been duly proved before a competent judge of the place where it was received. In the contrary case, the testament cannot be carried into eflect, without its being first proved before the judge of whom the execution is demanded. 8 N. S. 5S5 ; 13 L. 293 ; 17 L. 4 ; 2 E. 427 ; 3 E. 31 ; 6 E. 235. Section VI. — Of the Revocation of Testaments and of their Caducity. Art. 1683. — Testaments are revocable at the will of the testator until his decease. The testator cannot renounce this right of revocation, nor obligate himself to exercise it only under certain words and restrictions, and if he does so, such declaration shall be considered as not written. 2 A. T8. Art. 1684. — The revocation of testaments by the act of the testator is express or tacit, general or particular. It is express when the testator has formally declared in writing that he revokes his testament, or that he revokes such a legacy or a particu- lar disposition. It is tacit, when it results from some other disposition of the testa- tor, or from some act which supposes a change of will. It is general, when all the dispositions of a testament are revoked. It is particular, when it falls on some of the dispositions only, with- out touching the rest. 3 E. 31 ; 2 A. 78. Art. 1685. — The act by which a testamentary disposition is revoked, must be made in one of the forms prescribed for testaments, and clothed with the same formalities. 229 OF DONATIONS AND TESTAMENTS. 229 Art. 1686. — Posterior testaments, which do not in an express man- ner, revoke the prior ones, annul in the latter only such of the disposi- tions there contained as are incompatible with the new ones, or contrary to them, or entirely different. 11 L. 220 ; 12 L. 19 ; 3 E. 31 ; 1 A. 444; 2 A. 7S. Art. 1687. — A revocation made in a posterior testament has its en- tire effect, even though this new act remains without execution, either through the incapacity of the person instituted, or of the legatee, or through his refusal to accept it ; provided it is regular as to its form. 4 L. 423. Art. 1688. — A donation i)itcr vivos or a sale made by the testator of the whole or a part of the thing bequeathed as a legacy, amounts to a revocation of the testamentary disposition, for all that has been sold or given, even though the sale or donation be null, and the thing have returned into the possession of the testator, whether by the effects of that nullity, or by any other means. Art. 1689. — The sale, made by the testator, of an object bequeathed, even by act under private signature, after the date of the testament, produces a revocation of the legacy, if the act be entirely written, signed and dated with his hand. Art. 1690.— The testamentary disposition becomes without effect, if the person instituted or the legatee does not survive the testator. 17 L. 4G. Art. 1691. — Every testamentary disposition made on a condition depending on an uncertain event, so that in the intention of the testator the disposition shall take place only iuasmuch as the event shall or shall not happen, is without effect, if the instituted heir or the legatee dies before the accomplishment of the condition. Art. 1692. — A condition which, in the intention of the testator, does but suspend the execution of the disposition, does not hinder the insti- tuted heir or the legatee from having a right acquired and transmissible to his heirs. Art. 1693. — The legacy falls, if the thing bequeathed has totally perished during the lifetime of tlie testator. Art. 1694. — It likewise falls, if the thing has perished since his death, without the act or fault of tlie heir, although the latter may have delayed to deliver it, when it must equally have perished in the posses- sion of the legatee. Art. 1695. — In case of an alternative legacy of two things, if one of them perishes, the legacy subsists as to that which remains. Art. 1696. — The testamentary disposition falls, when the instituted heir or the legatee rejects it, or is incapable of receiving it. IT L. 46. Art. 1697. — Legatees under an universal title, and legatees under a particular title, benefit by the failure of those particular legacies which they were bound to discharge. 10 R. 512; 12 R. 56. Art. 1698. — The testament falls by the birth of legitimate children of the testator, posterior to its date. Art. 1699. — The right of accretion relative to testamentary dispo- 230 OF DONATIONS AND TESTAMENTS. sitions, shall no longer subsist, except in the cases provided for in the two following articles. Art. 1700. — Accretion shall take place for the benefit of the lega- tees, in case of the legacy being made to several conjointhj. The legacy shall be reputed to be made conjointly, when it is made by one and the same disposition without the testator's having assigned the part of such co-legatee in the thing bo(|ueathed. 4 N. S. 246 ; 8 L. 43 ; 10 E. 512 ; G A. 12. Art. 1701. — It shall also be reputed to be made conjointly, when a thing, not susceptible of being divided without deterioration, has been given by the same act to several persons, even separately. 10 E. 512. Art. 1702. — Except in the cases prescribed in the two preceding articles, every portion of the succession remaining undisposed of, either because the testator has not bequeathed it, either to a legatee or to an instituted heir, or because the heir or the legatee has not been able, or has not been willing to accept it, shall devolve upon the legitimate heirs. 10 E. 512 ; 12 E. 56. Art. 1703. — The same causes which, according to the foregoing pro- visions of the present title, authorize an action for the revocation of a donation inter vivos, are sufficient to ground an action of re^'oeation of testamentary dispositions ; provided, however, that no charges or con- ditions can be imposed by the testator on the legitimate portion of forced heirs, nor can they lose their inheritance for any act of ingratitude to the testator, prior to his decease. That he has not disinherited them shall be sufficient evidence of his having forgiven the offence. Art. 1704. — If the action be founded on a grievous injury done to the memory of the testator, it must be brought within a year from the day of the offence. Section VII. — General Rtdcsfor the Interpretation of Legacies. Art. 1 705. — In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the jDroper signification of the terms of the testament. T L. 226 ; 8 L. 43, 4S0. Art. 1 706. — A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none. r L. 226. Art. 1707. — In ease of ambiguity or obscurity in the description of the legatee, as, for instance, when a legacy is bequeathed to one of two individuals bearing the same name, the inquiry shall be which of the two was upon terms of the most intimate intercourse or connection with the testator, and to him shall the legacy be decreed. Art. 1708. — When, from the terms made use of by the testator, his intention cannot be ascertained, recourse must be had to all circv^i- stances which ma}^ aid in the discovery of his intention. 1 A. 444 ; 2 A. 580. 231 OF DONATIONS AND TESTAMENTS. 031 Art. 1709. — A mistake in the name of an object bequeatliecl, is of no moment, if it can be ascertained what the thing was which the testator intended to bequeathe. Art. 1710. — If it cannot be ascertained whether a greater or less quantity has been bequeathed, it must be decided for the least. 8 L. 489 ; 12 L. 73. Art. 1711. — A general legacy does not embrace those things inclu- ded under the genus, which have been acquired after the death of the testator, though by his order. Art. 1712. — A general legacy docs not embrace the things included under the genus, which have been bequeathed in particular to other persons. Art. 1713. — A disposition, couched in terms present and past, does not extend to that wliich comes afterwards. For example, a legacy of all the books a testator possesses does not include those which he has purchased after the date of tlie testament. 8 L. 489. Art. 1714. — A disposition, couched in the future tense, refei'S to the time of the death of the testator. Thus, a legacy of all tlie furniture there shall be in the house of the testator, includes that which he has purchased since the date of the testament as well as the rest. 8 L. 4S9. Art. 1715. — A disposition, the terms of which express no time neither past nor future, refers to the time of making the will. Thus, when the testator expresses simply that he bequeathes his plate to such a one, the plate that he possessed at the date of the will, is only included. 8 L. 489. Art. 171G. — When a person has ordered two things, which are con- tradictory, that which is last written, is presumed to be the Avill of the testator, in which he has persevered, and a derogation to what has before been written to the contrary. CHAPTER VII. OF PARTITIONS MADK BY PARENTS AND OTHER ASCENDANTS AMONG THEIR DESCENDANTS. Art. 1717. — Fathers and mothers and other ascendants may make a distribution and partition of their property among their children and legitimate descendants, cither by designating the quantum of the parts and partitions Avhicli they assign to each of them, or in designating the property that shall compose their respective lots. Art. 1718. — Those partitions may be made by act inter vivos or by testament. Art. 1719. — Those made by an act inter vivos can have only pre- sent property for tlioir object, and are subject to all the formalities and jonditions of donations inter vivos. 232 OF DONATIONS AND TESTAMENTS. Art. 1720. — Those made by testament, must be made in the forms prescribed for acts of that kind, and are subject to the same rules. Art. 1721. — If the partition, whether intxr vivos or by testament, has not comprised all the property that the ascendant leaves on the day of his decease, the property, not comprised in the partition, is divided according to law. Art. 1722. — If the partition, whether ifiter vivos or by testament, be not made amongst all the children living at the time of the decease and the descendants of those predeceased, the partition shall be null and void for the whole ; the child or descendant, who had no part in it, may require a new partition in legal form. Art. 1723. — Partitions, made by ascendant^, may be avoided, when the advantage secured to one of the co-heirs exceeds the disposable por- tion. Art. 1724. — The child who objects to the partition made by the as- cendant, must advance the expenses of having the property estimated, and must ultimately support them and the costs of suit, if his claim be not founded. Art. 1725. — The defendant in the action of rescission may arrest it by offering to the plaintiff the supplement of the portion to which he has a right. Art. 1726. — The rescission of the partition does not carry with it the nullity of a donation made as an advantage. CHAPTER VIII. OF DONATIONS MADE BY MARRIAGE CONTRACT TO THE HUSBAND OR WIFE, AND TO THE CHILDREN TO BE BORN OF THE MARRIAGE. Art. 1727. — Every donation inter vivos, though made by marriage contract to the husband and wife or to either of them, is subject to the general rules jDrescribed for the donations made under that title. It cannot take effect for the benefit of children not yet born. 16 L. 2T1. Art. 1728. — Fathers and mothers, the other ascendants, the collate- ral relations of either of the parties to the marriage, and even strangers, may give the whole or a part of the property they shall leave on the day of their decease, both for the benefit of the parties, and for that of the children to be born of their marriage, in case the donor survive the donee • Such a donation, though made for the benefit of the parties to the marriage, or for one of them, is always, in case of the survivorship of the donor, presumed to be made for the benefit of the children or descend- ants to proceed from that marriage. Art. 1729. — A donation, in the form specified in the preceding ar- ticle, is irrevocable only in this sense, that the donor can no longer dis- pose of the objects comprised in the donation, on a gratuitous title, unless it be for moderate sums, by way of recompense or otherwise. The donor retains till death the full liberty of selling and mortgaging, unless he has formally barred himself of it in the whole or in part. 233 OF DONATIONS AND TESTAMENTS. 233 Art. 1730. — A donation in favor of marriage may be made cumula- tively of the ijroperty present and future, provided that to tlie act be annexed a statement of the debts and charges of the donor, existing on the day of the donation, in which case the donee, on the decease of the donor, may accept merely the present property, renouncing the surplus of the property of the donor. 19 L. 52S. Art. 1731. — If the statement, mentioned in the preceding article, has not been annexed to the act containing a donation of present and future property, the donee shall be obliged to accept or reject that do- nation wholly ; and in case of acceptance, he shall claim only the pi-o- perty existing on the day of the donor's decease, and he shall be liable to the payment of all the charges and debts of the succession. Art. 1 732. — Donations made by marriage contract cannot be im- peached or declared void on pretence of a want of acceptance. Art. 1733. — p]vcry donation made in favor of marriage, falls, if the marriage docs not take place. 4 A. ,337. Art. 1734. — Donations made to the husband or the wife, on the terms of articles 1728 and 1730, fiill, if the donor survive the donee and his or her posterity. Art. 1735. — All donations made to [quarried cou^ilc by tlieir mar- riage contract, are, at the time of the oplettig of the succession of the donor, reducible to the portion that the law permitted him to dispose of 8 M. TOT; 6 N. S. 19G; Sec 7 11. 429. CHAPTER IX. OF DONATIONS BETWEEN MARRIED PERSONS, EITHER BY MARRIAGE CON- TRACT OR DU*IING THE MARRIAGE. Art. 1736 — Married persons can, by marriage contract, make to each other reciprocally, or the one to the other, what donations they think proper, under the modifications hereafter expressed. 1 N. S. 4C5 ; 19 L. 52S. , Art. 1737. — Every donation 'i?itcr vivos, of present property, made between married persons by marriage contract, shall not be deemed to be done on the condition of the survivorship of the donee, if that condi- tion be not formally expressed, and it is subject to all the rules above prescribed for those kinds of donations. Ifl L. 271 ; 19 L. 528. Art. 1738. — A donation of property in future, or of property present and in future, made between married pea'sons by marriage contract, whether simple or reciprocal, shall be subject to the rules established by the preceding chapter, Avith regard to similar donations made to them by a third person, except that it shall not be transmissive to tlie chil- dren, the issue of the marriage, in case of the death of the donee before the domr. 19 L. 52S. Art 1739. — One of the married couple may, either by marriage 234 OF DONATIONS AND TESTAMENTS. contract or during the marriage, in case of his or her icai^mjr "ac rhutiien nor legitimate descendants, give to the other in full piopcrty^ all that he or she might give to a stranger. And in case the donor leaves children or legitimate descendants, he can give to the other either a tenth part in full property, or the usufruct only of one-fifth of all his property. Stat. 21 March, 1850, p. 228. — Article one thousand seven hundred and thirty-nine of the Civil Code, which reads thus : " One of the mar- riage couple may either by marriage contract, or during the marriage, in case of his or her leaving no children nor legitimate descendants, give to the other in full property, all that he or she might give to a stranger. " And in case the donor leaves children or legitimate descendants, he can give to the other either a tenth part in full property, or the usufruct only of one-fifth of all his property," be and the same is hereby altered and amended so as to read as follows : " Either of the married couple may either by marriage contract, or during the marriage give to the other in full property, all that he or she might give to a stranger." 1 N. S. 465 ; 6 L. 231 ; 15 L. 563 ; 19 L. 52S ; 1 A. 142 ; 2 A. 30. Art. 1740. — The husband or wife, if a minor emancipated, can, by marriage contract, give t© each other, either by simple or by reciprocal donation whatever can be given by one of the parties who has attained the age of majority. Art. 1741. — A minor, not being emancipated, can give only with the consent of those relations whose consent is requisite for the validity of the marriage, and with that consent he or she can give all that the law permits a married person of full age to give to his or her consort. If the relations, whose consent is necessary, be dead, the minor not emancipated cannot give without the authorization of a court of justice. Art. 1742. — All donations made between married persons, during marriage, though termed inter vivos, slAill always be revocable. The revocation may be made by the wife, without her being autho- rized to that eifect by her husband or by a court of justice. Art. 1743. — Those donations shall not be revoked by the birth of children, provided they do not exceed the quantum, which married per- sons are permitted to dispose of to each other, to the prejudice of their children, or legitimate descendants, as is above provided. Art. 1744. — Married persons cannot, during marriage, make to each other, by an act, either inter vivos or mortis causa, any mutual or reci- procal donation by one and the same act. 10 M. 188. Art. 1745. — A man or woman who contracts a second or subsequent marriage having children by a former one, can give to his wife, or slae to her husband, only the least child's portion, and that only as an usufruct ; and in no case shall the portion, of which the donee is to have the usu- fruct, exceed the fifth part of the donor's estate. 0. C. p. 258; Arts. 226, 22" ; 2 A. 30; 19 L. 52S ; See 7N. S. 065. Art. 174G. — If a person who marries a second time has children of his or her preceding marriage, he or she cannot, in any manner, dispose of the property given or bequeathed to him or her by the deceased spouse, 235 OF OBLIGATIONS. 235 or whicli came to liim or her from a brother or sister of any of the chil- dren which remain. This property, by the second marriage, becomes the property of the chiklren of the preceding marriage, and the spouse, who marries again, only has the usufruct of it. 6N. S. 81; 15 L. 106; 1 A. 142. Art. 1747. — Husbands and wives cannot give to each other, indi- rectly, beyond what is permitted by the foregoing dispositions. AH donations disguised, or made to persons interposed, shall be null and void. 6 A. GT:? ; 1 L. 179. Art. 1 748. — All donations made by one of the married parties to the children or to any one of the children of the other party by a former marriage, and such as are made by the donor to relations to whom the other party is presumptive heir on the day of the donation, although the latter m^y not survive the relation who is the donee, shall be deemod made to persons interposed. TITLE III. OF OBLIGATIONS. CHAPTER I. OF THE NATURE AND DIVISION OF OBLIGATIONS. Art. 1749. — An obligation is, in its general and most extensive sense, synonymous with duty. Art. 1750. — Obligations are of three kinds : imperfect obligations, natural obligations, and civil or perfect obligations. 1. If the duty created by the obligation operates only on the moral sense, without being enforced by any positive law, it is called imperfect obligation, and creates no right of action, nor has it any legal operation. The duty of exercising gratitude, eliarity, and tlie other merely moral duties, is an example of this kind of obligation. 2. A natural obligation is one which cannot be enforced by action, but which is binding on the party who makes it, in conscience and ac- cording to natural justice. 3. A civil obligation is a legal tie, whicli gives the party with whom it is contracted, the right of enforcing its performance by law. Art. 1751. — Natural obligations are of four kinds: 1. Such obligations as the law has rendered invalid for the want of certain forms or for some reason oC general policy, but which are not in themselves immoral or unjust ; 2. Such as are made by persons having IJie discretion necessary to 236 OF CONVENTIONAL OBLTGATIONS. , enable them to contract, but avIio are yet rendered incapable of doing so by some provision of law ; 3. Wlien tlie action is bai'red by prescription, a natm-al obligation still subsists, although the civil obligation is extinguished ; 4. There is also a natural obligation on those who inherit an estate, either under a will or by legal inheritance, to execute the donations or other dispositions which the former owner had made, but which are de- fective for want of form only. 2 L. 42S ; 2 A. GC7. Art. 1752. — Although natural obligations cannot be enforced by action, they have the following effect : 1 . No suit will lie to recover what has been paid, or given in com- pliance with a natural obligation ; 2. A natural obligation is a sufficient consideration for a new con- tract. Art. 1753. — Civil obligations in relation to their origin, are of two kinds : 1. Such as are created by the force of the law ; 2 L. 42S ; 14 L. 34 ; 15 L. 3TS ; 19 L. 154, 1S5 ; 4 R. 495 ; 7 R. 5'29 ; 12 R. 273 ; 1 A. 2G5. 2. Such as arise from the consent of the parties who are bound by them, which are called contracts or conventional obligations ; 3 A. 101, 501 ; 4 A. 401 ; 5 A. 669 ; Soo 3 A. 492 ; 7 R. 522 ; 9 R. 324 ; 4 A. 550. Each of these divisions will form the subject of a separate title." TITLE IV. OF CONVENTIONAL OBLIGATIONS. CHAPTER I. GENERAL PROVISIONS. Art. 1754. — A contract is an agreement, by which one person obli- gates himself to another, to give, to do, or permit, or not to do some- thing expressed or implied by such agreement. ^ 6 L. 415. Art. 1755. — A contract must not be confounded with the instru- ment in writing by which it is witnessed. The contract may subsist, although the written act may, for some defect, be declared void ; and the written act may be good and authentic, although the contract it wit- nesses be illegal. The contract itself is only void for some cause or defect determined by law. 1 N. S. 420 ; 4 L. 77. Art. 175G. — In any contract, for the breach of which damages could be recovered, or which could be specifically enforced between the origi- nal parties, the obligation is incurred, and the right is vested in their 237 OF CONVENTIONAL OBLIGATIONS. 2o7 repres(;ntatlves, although they arc not specially named, unless it results from the nature of the agreement. Art. 1757. — All things that are not forbidden by law may legally be- come the subject of, or the motive for, contracts ; but different agree- ments are governed by different rules adapted to the nature of each contract, to distinguish whicli it is necessary in cvei'y contract to consi- der : 1. That -which is the essence of the contract, for the want whereof there is either no contract at all, or a contract of another description. Thus a price is essential to the contract of sale ; if there be none, it is cither no contract, or if the consideration be other property, it is an exchange ; 2. Things which, altliough not essential to the contract, yet are im- plied from the nature of such agreement, if no stipulation be made re- specting them, but which the parties may expressly modify or renounce, without destroying the contract or changing its description ; of this na- ture is warranty, which is implied in every sale, biit which may be mo- dified or renounced, without changing the character of the contract or destroying its effect ; 3. Accidental stipulations, which belong neither to tlie essence nor the nature of the contract, but depend solely on the will of the parties. The term given for the payment of a loan, the place at which it is to be paid, and the nature of the rent payable on a lease, are examples of ac- cidental stipiilations. What ]jelongsto the essence and to the nature of each parti: ular de- scription of contract, is determined by the law defining such cu:itracts ; accidental stipulations depend on the will of the parties, reguhited by the general rules applying to all contracts. V. art 2255 ; 5 M. 422 ; 1 N. S. 456 ; 2 R. 109 ; 4 L. 22 ; Seo 1-3 L. 257. Art. 1758. — To all contracts there must be at least two parties, one who does, or engages to do or not to do, another to whom the en- gagement is made. If this latter party make no express agreement on his part, the contract is called unilateral, even in cases where the law attaches certain obligations to his acceptance. It is called a reciprocal contract, when the parties expressly enter into mutual engagements. Seo 7 L. 233, 240. Art. 1759. — No contract is complete without the assent of both parties. In reciprocal contracts it must be expressed. In some uni- lateral contracts, the law provides that under certain circumstances it shall be presumed. 1 L. 18S ; 18 L. 539. Art. 1760. — Contracts, considered in relation to their substance, are cither commutative, or independent, principal or accessory. Art. 1761. — Commutative contracts are those in which what is done, given, or promised by one party, is considered an equivalent to, or a consideration for what is done, given, or promised by the other. Art. 1762. — Independent contracts are those in which tlic mutual acts or promises have no relation to each other, either as equivalents or aa coDsidcratioDs. 238 OF CONVENTIONAL OBLIGATIONS Akt. 1 763 — A contract, containing mutual covenants, shall be pre- sumed to be commutative, unless the contrary be expressed. Art. 1764. — A principal contract is one entered into by both parties, on their accounts, or in tlie several qualities they assume. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others, such as suretyship, mortgage and pledge. Art. 1765. — Contracts, considered in relation to the motive for ma king them, are either gratuitoiis or onerous. 6 L. 231, 2U ; See 1 A. 132. Art. 176G. — Ho be gratuitous, the object of a contract must be to benefit the person with whom it is made, without any profit or advantage, received or promised as a consideration for it. It is not, however, the less gratuitous, if it proceed either from gratitude for a benefit before received, or from the hope of receiving one hereafter, although such bene- fit be of a pecuniary nature. Art. 1 767. — Any thing given or promised as a consideration for the engagement or gift, any service, interest or condition, imposed on what is given or promised, although unequal to it in value, makes a contract onerous in its nature. Art. 1768. — Considered in relation to their effects, contracts are either certain or hazardous. Art. 1769. — A contra'et is hazardous, when the performance of that which is one of its objects, depends on an uncertain event. It is certain, when the thing to be done is supposed to depend on the will of the party, or when in the usual course of events it must happen in the manner stipulated. Art. 1770. — Contracts in general, under whatever denomination they may come, and whether they may or maj^ not be included in any of the above divisions, are subject to certain rules, which are the subject of this title. 6 L. 231, 244. Art. 1771. — Certain contracts are regulated by rules, which are established in the parts of the code which treat of those contracts. 1 A. 249. CHAPTER II. OF THE REQUISITES TO THE FORMATION OF A VALID AGREEMENT. Art. 1772. — Four requisites are necessary to the validity of an agreement : 1. Parties legally capable of contracting; 2. Their consent legally given ; 3. A certain object, which forms the matter of agreement; ,4. A lawful purpose. Seel A. 176; See 2 K. 163. 239 OF CONVE^sTIOXAL OBLIGATIONS. 239 Section I. — Of the Parties to a Contract, and of their CapubiJity to Contract. Art. 1773. — Those only are parties to a contract, who have given their assent to it, either expressly or by implication. 13 L. 264. Art. 1774. — The cases, in which assent is implied, are particularly determined by law. Art. 1775. — KW persons have the capability to contract, except those whose incapacity is specially declared by law. These are persons of insane mind, slaves, those who are interdicted, minors, married wo- men. 5 N. S. 527, 651 ; 7 N. S. bil ; 15 L. 13 ; 5 E. 295 ; 11 R. 506 2 A. 418 ; 5 A. 1 ; Sec 379, 1T7S, 1S67, 2222, 2420. Art. 1776. — All cases of incapacity are subject to the following mo- difications and exceptions. Art. 1777. — Persons interdicted can, in no cases whatever, make a valid contract after the petition has been presented for their interdiction, until it be legally removed. Art. 1778. — Minors emancipated may contract in the cases already provided by law, and when not emancipated, their contracts are valid, if made with the intervention of their tutors or curators, and with the assent of a family meeting, in the cases where by law it is required. When the minor has no tutor or curator, or they neglect to supply him with necessaries for his support or education, a contract or quasi con- tract for providing him with what is necessary for those purposes, is valid. A minor is also capable of accepting the contract of mandate, under the restrictions and modifications contained in the title on that subject. His stipulations in a marriage contract, if made with the assent of those whose authority is in sucli case required by law, are also valid. The obligation arising from an offence or quasi offence, is also bind- ing on the minor. In all other cases, the minor is incapacitated from contracting, but his contracts may be rendered valid by ratification, either expressed or implied, in tlie manner and on the terms stated in this title under the head of nullity or rescission of agreements. 5 N. S. 651 ; 15 L. 18 ; 2 A. 367 ; See 879, 1775, 1867 ; See 1 N. S. 537 ; 3 N. S. 400 ; 8 N. S. 196. Art. 1779. — The incapacity of the wife is removed by the authori- zation of the husband, or, in cases provided by law, by that of the judge. 3 K. 829 ; See 10 L. 101 ; 11 L. >')3S ; 1 E. 230 ; 11 E. 506. The authorization of the liu.sband to the commercial contracts of the wife is presumed by law, if he permits her to trade in her own name ; to her contracts for necessaries for herself and family, where he docs not himself provide them ; and to all her cither contracts, when he is himself a party to them. 10 L. 163; 3R. 329; 6E. 292. The unauthorized contracts made by married women, like the acts of minors, may be made valid, after the marriage is dissolved, either by express or implied assent. 240 OF CONVENTIONAL OBLIGATIONS. Art. 1780. — A married woman may act as mandatary, and her acts will bind the mandator and the person with whom she contracts in her name ; although she be not authorized by her husband, but the manda- tor has no action against her on the contract. Art. 1781. — The contract, entered into by a person of insane mind, is void as to him for the want of that assent, which none but persons, in possession of their mental faculties, can give. It is not the judgment of interdiction, therefore, that creates the incapacity, it is evidence only of its existence, but it is conclusive evidence, and from these principlea result the following rules : 1. That, after the interdiction, no other evidence than the interdic- tion itself is necessary to prove the incapacity of the person, and to invalidate any contract he may have made after the day the petition for interdiction was presented, and tliat no evidence to show that the act was made during a lucid interval, or to contradict the judgment of inter- diction, can be admitted ; 2. As to contracts, made prior to the application for the interdiction, they can only be invalidated by proving the incapacity to have existed at the time the contracts were made ; v 3. But in order to prevent imposition, it is not enough to make the proof mentioned in the last rule ; it must also, in that case, be shown that the person interdicted was known by those who generally saw and conversed with him, to be in a state of mental derangement, or that the person, who contracted with him, from that or other circumstances, was acquainted with his incapacity ; 4 L. 114. 4. That, except in the case of death hereafter provided for, no suit can be brought, nor any exception made, to invalidate a contract on account of insanity, unless judgment of interdiction be pronounced before bringing the suit, or at least applied for before making the exception ; 5. That if the party die within thirty days after making the act or contract, the insanity may be shown by evidence, without having applied for the interdiction ; but if more than that time elapse, the insanity cannot be shown to invalidate the act or contract, unless the interdiction shall have been applied for, except in the case provided for in the follow- ing rule ; 6. That if an instrument or other act of a person deceased shall contain in itself evidence of insanity in the party, then it shall be declared void, although more than thirty days have elapsed between the time of making the act and the death of the party, and although no petition shall have been presented for his interdiction ; 6 A. 104. 7. In the case mentioned in the preceding rule, other proofs of insanity may be offered by the party, who alleges the incapacity, or may be required by the judge ; 8. That, where insanity is alleged to avoid a donation or other gra- tuitous contract, it is not necessary to show that the incapacity was generally known ; it will be sufficient to show that it existed, and if the party be dead, without having been interdicted, it is not necessary in this case to show that the interdiction was applied for ; 241 OF CONVENTIONAL OBLIGATIONS. 241 9. That evidence of general and habitual insanity in order to avoid a contract, may be rebutted by showing that the contract or act waa made during a lucid interval ; but where general insanity, even with some intervals, is shown, the burden of showing that the particular act in dispute was made during such an interval, is thrown on the party, who supports the validity of the act or contract; 4 L. 114. 10. That insanity may be alleged and proved to invalidate a testa- ment, although no interdiction have been applied for, nor in that case is it necessary to prove that the insanity was notorious ; 6 A. 104. 11. The allegation in a testament that the testator was of sound mind, cannot prevent pi'oof of the contrary being given in evidence, even by the witnesses to the will ; 12. That, when these rules refer to the time of presenting the petition for interdiction, as a period which is to determine the validity of a contract or other act, such petition is meant as has not been with- drawn or dismissed ; 13. That, while the judgment of interdiction is in force, it is conclu- sive evidence of incapacity ; but that it may be annulled, whenever the insanity ceases, but it can only be annulled by a judgment. 4 L. 114. Art. 1782. — A temporary derangement of intellect, whether arising from disease, accident or other cause, also creates an incapacity pending its duration, provided the situation of the party and his incapacity was apparent. Art. 1783. — The only case, in which slaves can contract on their account, is for their emancipation. They may contract for their masters, when authorized by them. 3 A. 136. Art. 1784. — Besides the general incapacity, which persons of cer- tain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as a husband and wife, tutor and ward, w'hose contracts with each other are forbidden ; or in relation to the subject of the contract, such as purchases, by the admin- istrator of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of the husband, to alien- ate her dotal property, or to become security for his debts. These take place only in the cases specially provided by law, under different titles of this code. See Amendment to Art 1139 ; 9 L. 5S5 ; 14 L. 111. 122 ; 1 K. 220 ; 12 E. 82 ; 1 A. 129, 301 ; 3 A. 533 : 6 A. 465 ; 9co 2412. Art. 1785. — The persons who have treated with a minor, the person interdicted, or of insane mind, or with a married woman, cannot plead the nullity of the agreement, if it is sought to be enforced by the party, when the disability shall cease, or by those who legally administer the rights of such person during the disability. Even a contract made with a slave may bo enforced by the master, if he chooses to affirm it for hia benefit. 6L.231; 10 L. 506; 19 L. 441. 16 242 OF CONVENTIONAL OBLIGATL >NS. Art. 1 786. — If the contract be reciprocal, it must not be enforced on one side only; and if the minor, or other incapacitated person, opposes his incapacity against any part of the agreement, the whole of the con- tract is void. See 4 L. 463. Art. 1787. — If, in a contract with an incapacitated person, or in a contract void for want of form, entered into with any one for the benefit of such incapacitated person, any consideration be paid or given, and the contract be afterwards invalidated on account of such incapacity or want of form, the consideration so paid or given must be restored, if it was applied to the necessary use or benefit of the incapacitated person. 4 L. 305 ; 6 L. 215. Art. 1788. — A person, who, being ignorant of the incapacit}^ of one unable to contract, shall make an agreement with such person, may, immediately after he has discovered the incapacjity, call on the party, if the incapacity has ceased, or on the person having the legal administra- tion of his affairs, if it have not, to confirm or annul the contract ; and if it be a contract of such kind, as the administrator might have made, then his assent shall confirm it, or his dissent shall free the contracting party from the obligation on his part. If the assent of a family meeting would have been necessary to authorize the contract, it may be called, on the application of the party, and their decision shall havfe the same effect in confirming or invalidating the contract, that it would have had on its formation. 6L. 215; 2 A. 727; 4 A. 85. Art. 1789. — If a contract, made by a person incapacitated from contracting, shall be confirmed by him after his incapacity shall cease, the rights of third persons acquired before such confirmation are not impaired thereby, even if such riglits were acquired with notice of the invalid act. 7 N. S. 374 ; 11 E. 98 ; 12 E. 221. Art. 1790. — Those who may be interdicted from the enjoyment of their civil rights, in consequence of a conviction for crime, cannot op- pose their incapacity against the performance of any contract they may have made, unless it be against some person having power over them during their confinement, nor can any person with whom they contract, plead such incapacity. Section II. — Of the Coiuent necessary to give Validity to a Contract § 1. Of the Nature of the Assent, and how it is to he shotcn. Art. 1791. — When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect, unless it be evinced in some manner that shall cause it to be understood by the other parties to the contract. To prevent error in this essential point, the law esta- blishes, by certain rules adapted to the nature of the contract, what cir- cumstances shall be evidence of such assent, and how those circum- 243 OF CONVENTIONAL OBLIGATIONS. '243 stances shall be proved : these come within the purview of the law of evidence. 1 N. S. 420; 11 L. 99; See 7 L. 283. Art. 1792. — As there must be two parties at least to every contract, so there must be something proposed by one, and accepted and agreed to by another, to form the matter of such contract, the will of both par- ties must unite on the same point. Art. 1793. — It is a presumption of law that, in every contract, each party has agreed to confer on the other the right of judicially enforcing the performance of the agreement, unless the contrary be expressed, or may be implied. Art. 1794. — -The contract consisting of a proposition and the con- sent to it, the agreement is incomplete, until the acceptance of the per- son to whom it is proposed. If he who proposes, should before that assent is given, change his intention on the subject, the concurrence of the two wills is wanting, and there is no contract. 1 L. ISS ; 5 A. 124. Art. 1795. — The party proposing shall be presumed to continue in the intention, which his proposal expressed, if, on receiving the unquali- fied assent of him to whom the proposition is made, he do not signify the change of his intention. 2 L. 504. Art. 1796. — He is bound by his proposition, and the signification of his dissent will be of no avail, if the proposition be made in terms which evince a design to give the other party the right of concluding the contract by his assent; and if that assent be given within such time as the situation of the parties and the natm*c of the contract shall prove that it was the intention of the proposer to allow. 2 L. 504 ; 3 A. 523 ; 5 A. 124 Art. 1797. — But when one party proposes, and the other assents, then the obligation is complete, and by virtue of the right each has im- pliedly given to the other, either of them may call for the aid of the law to enforce it. Art. 1798. — The acceptance needs not be made by the same act, or in point of time, immediately after the proposition, if made at any time before the person who oflfers or promises has changed liis mind, or may reasonably be presumed to have done so, it is sufficient. 8 A. 523. Art. 1799. — The acceptance to form a contract must be in all things conformable to the offer ; any condition or limitation contained in the acceptance of that which formed the matter of the offer, gives him •who makes the offer, the right to withdraw it. 1 L. ISS, 190 ; 6 K. 97. Art. 1800. — This takes place even when more is promised than was demanded, or wlien less is offered than was required ; for example, if a request is made to borrow fifty dollars, and the party answers that he will lend one hundred dollars ; or, if the request be to borrow one hun- dred dollars, and the answer that fifty will be lent, there is no obliga- tion in either case without a further assent of the borrower to take the one hundred, in the first case, and the fifty in the other; for the propo- 244 OF CONVENTIONAL OBLIGATIONS. sal to borrow fift}- docs not necessarily imply an assent to bon jw one hundred, nor does the proposal to lend one hundred necessarily imply a desire to lend only fifty. The modification or change of the proposition is, in all respects, considered as a new ofi"cr, and the party making it ia bound by the acceptance in the same manner as if the original proposi- tion had been made by him. Art. 1801. — "When, however, from the circum.stanccs of the case the oflFer necessarily implies an assent to the modification of the accept- ance, then the obligation is complete, altliough there be a diff'erence in terms between the one and the other. If, for example, one offers to sell a certain article for one hundred dollars, and the other, not having yet received the offer, should on his part propose to give two hundred dollars, the proposal to give the greater sum necessarily implies an assent to take it for a less, and the contract is complete at the luwest sum. Art. 1802. — But a consent to give any thing else, although of a greater value than that contained in the offer, or to give the same or a larger sum at a different term of payment, docs not imply an assent to the offer, and there is in that case no obligation. Art. 1803. — The obligation of a contract not being complete, until the acceptance, or in cases where it is implied by law, until the circum- stances which raise such implication are known to the party proposing ; he may therefore revoke his offer or proposition before such acceptance, but not without allowing such reasonable time as from the terms of his offer he has given or from the circumstances of the case he may be sup- posed to have intended to give to the party, to communicate his determi- nation. 5 A. 124. Art. 1804. — If the party, making the offer, die before it is accepted, or he to whom it is made, die before he has given his assent, the repre- sentatives of neither party are bound, nor can they bind the survivor. But if the contract be accepted before the death of the party ofl'ering it, although he had no notice of it, the obligation is complete ; but if the representatives assent to an acceptance of the surviving party in the first instance, or the survivor assent to an acceptance made by the re preseutatives in the second instance, then it becomes a new contract be- tween the representatives and the surviving party. 11 K. 298. Art. 1805. — The proposition as well as thj assent to a contract may be express or implied ; Express, when evinced by words, eitlicr written or spoken; 19 L. 425; 5 R. 2.10; 1 A. 259; 3 A. 4CS, 523; Implied, when it is manifested by actions, even by silence or by in- action, in cases in which they can from circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent. 11 L. 280, 288; 19 L, 42T; Sec 17 L. 39G; See 1810, 1811. Art. 180G. — Express consent must be given in a language under- 245 OF CONVENTIONAL OBLIGATIONS. 245 stood by the party wlio accepts, and the words by which it is conveyed must be in themselves unequivocal : if they mean different things, they give rise to error, which, as is hereinafter provided, destroys the effect of a contract. ' Art. 1807. — Even when words are unequivocal and expressive of as- sent, they are not always obligatory, when from the context, if in writing, or from what in speech is equivalent to it, the words which immediately precede, or follow, it appears that the party did not intend to obligate himself. Art. 1808. — Unequivocal words, expressive of mere intent, do not make an obligation. 9 L. \U. Art. 1809. — A positive promise, that, from the manner in which it is made, shows that there was no serious intent to contract, creates no obligation. Art. 1810. — Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circum- stances that naturally imply a consent to such contract. To receive goods from a merchant without any express promise, and to use them, implies a contract to pay the value. If an offer is made of an article in deposit, and the article is received, the contract of deposit is complete. If a mandate is acted on, the mandatary is bound in the same manner as if he had accepted in w^riting. In all those cases and others of the like nature, all the conditions, which he, who gives or proposes, annexed to the delivery or the acceptance of the proposition, arc also presumed to have been accepted by the act of receiving. If the merchant, in deliver- ing the goods, declare that they must be paid for by a certain time, if the depositor designate how the deposit is to be kept, or the mandatary in what manner his commission is to be executed, he who receives and acts is obligated to the performance of all these conditions. 1 A. 11, 197; 8 A. 101. Art. 181 1. — Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation ; if, after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease, is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other. 18 L. 517 ; 1 A. 11 ; 3 A. i6S ; See 2 L. 149 ; 4 L. 195, 642 ; 17 L. 399, 897. Art. 1812. — Where the law docs not create a legal presumption of proposition, acceptance or consent from certain facts, then, as in the case of other simple presumptions, it must be left to the discretion of the judge, whether assent is to be implied from them or not. 1 A.11. § 2. — What dffccU of foment will invalidate a Contract. Art. 1813. — Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate 246 OF CONVENTIONAL OBLIGATIONS. exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied, as-is provided in the preceding paragraph, but also where it has been produced by Error ; Fraud ; Violence ; Threats. lOR. 65; See 19 L. 362. § 3. — Of Erroi\ its Division and Effects. Art. 1814. — Error, as applied to contracts, is of two kinds: 1. Error of fact; 2. Error of law. ^ S«e 6 L. 511. Art. 1815. — That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none. 13 L. 249 ; 4 E. 290 ; Sec 7 L. 554. Art. 1816. — He is under an error of law, who is truly informed of the existence of facts, but who draws from them erroneous conclusions of law. Art. 1817. — Errors may exist as to all the circumstancs and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself § 4. — Of Error in the ^otive. Art. 1818. — The reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there be no such cause where one was supposed to exist, or if it be falsely repre- sented, there can be no valid consent. 4 L. 352; 5 L. 114; 19 L. 140; 10 II. 05; See 4 L. 34T. Art. 1819. — The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are seve- ral ; this principal cause is called the motive, and means that considera- tion without which the contract would not have been made. n L. 445. Art. 1820. — No error in tlie motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agree- ment, or unless from the nature of the transaction it must be presumed that he knew it. 15 L. 221 ; IT L. 445. Art. 1821. — But wherever the motive is aj^parent, although not made an express condition, if the error bears on that motive, the contract is void. A promise to give a certain sum to bear the expenses of a mar 247 OF CONVENTIONAL OBLIGATIONS. 247 riage, wliicla the party supposes to Lave taken place, is not obligatory, if there be no marriage. Art. 182-2. — Thus, too, if a suit be brought on an obligation purport- ing to have been made by the ancestor of the defendant, and, supposing it to be true, the defendant enters into a compromise or promise to pay, the compromise or promise is void, if it should be afterwards discov- ered that the obligation was forged. Art. 1823. — In the same manner a compromise of a suit, and any obligation made in consequence of it, is void, if, at the time, but unknown to the parties, the suit be finally decided. But if the- decision be not final, but subject to appeal or revision, the compromise is valid. Art. 1821. — A compromise also is void, where one of the parties is ignorant of the existence of a paper, which, being afterwards discovered, shows that the other had no right, and this, whether the other party knew the existence of the paper or not. Art. 1825. — But if the compromise be of all differences generally, and there were other subjects of dispute, besides that in which the error existed, of sufficient importance to raise a presumption that, even if the error had been discovered, the compromise would still have been made, then such error shall not invalidate the contract. 9 L. 141. Art. 1826. — In all cases, however, when the information, which would have destroyed the error, has been withheld by the other party to the contract, it comes under the head of fraud, and invalidates the con- tract. Seo 15 L. 280. Art. 1827. — Error in the motive also is shown in the case either of an insurance on property or an annuity on lives. If the propcrt}' be lost, or the life be at an end, at the time of making the contract, there is no obligation, unless, in the case of the insurance, it be expressly stipulated that the insurer takes the risk of those events, from a period prior to the contract. If the same express stipulation take place in the case of the annuity, it then becomes an insurance, and is valid for the same reason. 5 L. lU. § 5. — Error as to the Person. Art. 1828. — Error as to the person with whom the contract is made, will invalidate it if the consideration of the person is the principal or only cause of the contract, as it is always in the contract of marriage. Art. 1829. — In contracts of beneficence, the consideration of the person is presumed by law to be the principal cause. Art. 1830. — In onerous contracts, such as sale, exchange, loan for interest, letting and hiring, the consideration of the person i.s by law ge- nerally presumed to be an incidental cause, not a motive for a contract. Art. 1831. — There are exceptions to the rule contained in the last preceding article. If, from the nature of the onerous contract, it results that any parti- cular skill or quality be required in its execution, which the party with 248 OF CONVENTIONAL OBLIGATIONS. whom the contract is made, is supposed to possess, then the considera- tion of the person is presumed to be the principal cause, and error as to the person invalidates the contract. Thus, if intending to eniplo}^ an architect of great eminence, the party addresses himself by mistake to one of the same name, who has little or no skill, the promise made to him for compensation is void ; but if any thing be done by the person thus employed, who was ignorant of the mistake, a compensation, pro- portioned to his service, is due. Art. 1832. — Error as to the quality or character in which the party acts, as well as a mistake as to the person himself, invalidates a contract, when such a quality or character is the principal cause of the agreement. Thus, a compromise with one who is supposed to be the heir of a de ceased creditor of the party contracting, is void, if he be not really the heir. 4 L. 456. Art. 1833. — But if the person who is i-eally entitled to the quality assumed by the one with whom the contract is made, has contributed to the error by his neglect or by design, it will not vitiate the agreement. And in the case above stated, a payment to, or a compromise with one, whom the true heir suffered to remain in possession of the inheritance, and to act as heir, without notice, would be valid. Art. 1834. — Contracts which could only be made by persons possess- ing certain powers, either delegated by contract, given by virtue of any private or public office, or vested by the operation of law, are also void, when there is error as to the character, quality or office, under color of which such contract was made. Contracts entered into under forged or void powers or assignments, or with persons without authority assuming to act as public or j^rivate officers, are governed by this rule. Contracts, however, made in the name of another, under void powers, will be valid if ratified by the princijial, before the other contracting party has signi- fied his dissent to the agreement. § G. — Of Error as to the Nature and Object of tlie Contract. Art. 1835. — Error as to the nature of the contract will render it void. The nature of the contract is that which characterizes the obligation which it creates. Thus, if the party receives property, and from error or ambiguity in the words accompanying the delivery, believes that he has purchased, while he who delivers intends only to pledge, there is no contract. 4 L. 852 ; Sec 4 L. 34T ; G L. 500. Art. 183G. — Error as to the thing which is the subject of the con- tract, does not invalidate it, unless it bears on the substance or some substantial quality of the thing. See 1 A. 232. Art. 1837. — There is error as to the substance, when the object is of a totally different nature from that which is intended. Thus, if the object of the stipulation be supposed by one or both the parties to be an 249 OF CONVENTIONAL OBLIGATIONS. 249 ingot of silver, and it really is a mass of some other metal that resembles silver, there is an error bearing on the substance of the object. See 1 A. 232. Art. 1838. — The error bears on the substantial quality of the object when such quality is that which gives it its greatest value. A contract relative to a vase, supposed to be of gold, is void if it be only plated with that metal, 4 L, 852. Art. 1839. — Error as to the other qualities of the object of the con- tract, only invalidates it, when those qualities are such as were the prin- cipal cause of making the contract. § 7. — Errors of Law. Art. 1840. — Error in law, as well as error in fact, invalidates a contract, where such error is its only or principal cause, subject to the following modifications and restrictions : 1. Although the party may have been ignorant of his right, yet if the contract, made under such error, fulfilled any such natural oljligation as might from its nature induce a presumption that it was made in con- sequence of the obligation, and not from error of right, then such error shall not be alleged to avoid the contract. Thus, the natural obligation to perform the will of the donor, prevents the donee from reclaiming legacies or gifts he has paid under a testament void only for want of form ; 4 L. 456, 460. 2. A contract, made for the purpose of avoiding litigation, cannot be rescinded for error of law ; 4 R. 207 ; See 5 L. 113 ; 7 L. 554 ; 13 L. 100. 3. Error of law can never be alleged as the means of acquiring, though it may be invoked as the means of preventing a loss or of reco- vering what has been given or paid under such error. The error, under which a possessor may be as to the illegality of his title, shall not o-ivc him a right to prescribe under it ; 4. A judicial confession of a debt shall not bo avoided by an allega- tion of error of law, though it may be by showing an error of fact ; 5. A promise or contract, that destroys a prescriptive right, shall not be avoided by an allegation that the party was ignorant or in an error with regard to the law of prescription ; G. If a party has an exception, that destroys the natural as well aa the perfect obligation, and, througli error of law, makes a promise or contract that destroys such exception, he may avail 'himself of such er- ror; but if the exception destr lys only the perfect, but not the natural obligation, error of law shall not avail to restore the exception. 250 OF CONVENTIONAL OBLIGATIONS. § 8. — Of the Xullity resulting from Fraud. Art. 1841. — Fraud, as applied to contracts, is the cause 3f an error bearing on a material part of the contract, created or continued by arti- fice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the othei'. From which definition are drawn the following rules : 1 . Error is an essential part of the definition ; an artifice that can- not deceive, can have no effect in influencing the consent, and cannot in- jure the validity of the contract ; 2. The error must be on a material part of the contract, that is to say, such part as may reasonably be presumed to have influenced the party in making it ; but it needs not be the principal cause of the con- tract, as it must be in the case of simple error without artifice ; 3. A false assertion as to the value of that which is the object of the contract, is not such an artifice as will invalidate the agreement, pro- vided the object is of such a nature and is in such a situation that he, who is induced to contract by means of the assertion, might with ordi- nary attention have detected the falsehood ; he shall then be supposed to have been influenced more by his own judgment than the assertion of the other ; 4. But a false assertion of the value or cost, or quality of the object, will constitute such artifice, if the object be one that requires particular skill or habit, or any difficult or inconvenient operation to discover the truth or falsity of the assertion. Sales of articles, falsely asserted to be composed of precious metals, sales of merchandise by a false invoice, of any article by a false sample, of goods in packages or bales, which cannot without inconvenience be unpacked or inspected, or where the party making the sale avoids the inspection with intent to deceive, of goods at sea or at a distance, of slaves with a false assertion of their qualities, or a concealment of their vices or defects, are, with others of like nature, referable to this rule ; 5. It must be caused or continued by artifice, by which is meant either an assertion of what is false, or a suppression of what is true, in relation to such part of the contract as is stated in the second rule ; 6. The assertion and suppression, mentioned in the last preceding rule, mean not only an affirmation or negation by words either written or spoken, but any other means calculated to produce a belief of what is false, or an ignorauce or disbelief of what is true ; 7. The artifice must be designed to obtain either an unjust advan- tage to the party for whose benefit the artifice is carried on, or a loss or inconvenience to him against whom it is practised, although attended with advantage to no one ; 8. It is not necessary that either of the effects mentioned in the last preceding rule, should have actually been produced ; it is sufficient to 251 OF CONVENTIONAL OBLIGATIONS. 251 constitute tlie fraud, that such would be the effect of the contract, if it were actually performed ; 9. If the artifice be practised by a party to the contract, or by an- other with his knowledge or by his procurement, it vitiates the contract; but if the artifice be practised by a third person, without the knowledge of the party who benefits by it, the contract is not vitiated by the fraud, although it may be void on account of error, if that error be of such a nature as to invalidate it ; in this case the party injured may recover his damages against the person practising the fraud ; 10. In the words "loss or inconvenience" which maybe suffered by the party, is included the preventing him from obtaining any gain or advantage, which, without the artifice, he might have obtained ; 1 1. If the advantage to be gained by the party, in favor of whom the artifice is practised, gives him no unjust advantage, that is to say, no advantage at the expense of the other party, and this latter would neither suffer inconvenience nor loss in consequence of the deception, if the contract were performed, the artifice does not vitiate it. 12. Combinations with respect to sales to enhance the price by false bids or offers, or to depress it by false assertions, are artifices, which in- validate the contract, when practised by those who are parties to it, or give rise to an action for damages where they are not. 6L.500; 9L. 129; 4K. 290; 1 A. 3S9; GA.3S5; Soc9L. 17; 11 L. 401; 13 L. 204, 534; 15 L. 218; 9 K. 436. Art. 1842. — Fraud, like every other allegation, must be proved by him who alleges it, but it may be proved by simple presumptions, by legal presumptions, as well as by other evidence. The maxim that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence. 12 R. 284 ; 2 A. 458 ; 3 A. 600; Seo 1 N. S. 451 : 2 L. 78 ; C L. 500 ; IC L. 363. Art. 1843. — Some circumstances and acts attending particular con- tracts, are by law declared to be conclusive ; and others, presumptive evidence of fraud. These laws will be found in the proper divisions of this code, treating of these contracts. § 9. — Of the Want of Consent arising from Violence or Threats. Art. 1844. — Consent to a contract is void, if it be produced by vio- lence or threats, and the contract is invalid. See 12 K. 87S. Art. 1845. — It is not every degree of violence or every kind of threats, that will invalidate a contract ; they must be such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune. The age, sex, state of health, temper and disposition of the party, and other circumstances calculated 252 OF CONVENTIONAL OBLIGATIONS. to give greater or less ofFect to the violence or threats, must be taken into consideration. See 12 K. 378. Akt. 1846. — A contract, produced by violence or threats, is void, although the party, in whose favor the contract is made, did not exer- cise the violence or make the threats, and although he were ignorant of them. Art. 1847. — Violence or threats are causes of nullity, not only where they are exercised on the contracting party, but also when the wife, the husband, the descendants or ascendants of the party are the object of them. Art. 1848. — The mere reverential fear of a relation in the ascending line, where no violence has been offered, nor threats made, will not in- validate a contract. Art. 1849. — No contract can be invalidated on an allegation of vio- lence or threats, if it has been approved, either expressly after the vio- lence or danger has ceased, or tacitly by suffering the time limited to elapse without causing it to be rescinded. IT L. 2S9, 293. Atr. 1850. — If the violence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract. A just and legal imprisonment, or threats of any measure authorized by law and by the circumstances of the case, are of this description. See 10 M. lOG. Art. 1851. — But the mere forms of law to cover coercive proceed- ings for an unjust and illegal cause, if used or threatened in order to procure the assent to a contract, will invalidate it. An arrest Avithout cause of action, or a demand of bail in an unreasonable sum, or threats of such proceeding, by this rule invalidate a contract made under their pressure. Art. 1852. — A contract made with one having no agency in the vio- lence used, or the threats made for the pvirpose of delivering the party from the constraint under which he is, or from the danger with which he is menaced, shall not be invalidated by reason of such violence or threats, provided the contract be made in good faith and without collusion with the offending party. A contract to procure a rescue of person or goods from pirates or robbers, is an example of this rule. Art. 1853. — All the above articles relate to cases where there may be some other motive besides the violence or threats for making tlie con- tract. Where, however, there is no other cause for the contract, any threats, even of slight injury, will invalidate it. 12 K. 878. § 10.— ^/ Lesion. Art. 1854. — Lesion is the injury suffered by one, who does not re- ceive a full equivalent for what he gives in a commutative contract. The 253 OF CONVENTIONAL OBLIGATIONS. 253 remedy given for this injury, is founded on its being the effect of implied eri'or or imposition ; for, in every commutative contract, equivalents are supposed to be given and received. 10 L. 423; See 2 N. S. 73 ; 5 L. 3S2 ; IC L. 421 ; IG L. 3S0 ; 4 E. 45. Art. 1855. — The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary con- ti-acts, on account of such implied error or imposition, except in the two following cases : 1. In partition, where there is a difference in the value of the portions to more than the amount of one-fourth to the prejudice of one of the parties ; 2. In sales of immovable property, the vendor may be relieved, if the price given is less than one-half of the value of the thing sold; but the sale cannot be invalidated for lesion to the injury of the pur- chaser. Art. 1856. — Lesion can be alleged by persons of full age in no other sale than one for immovables, by whicli is meant whatever is immovable by destination, including slaves, when sold with the plantations on which they labor. Art. 1857. — Persons of full age are relieved for lesion in no other contracts than those above expressed, not even in exchange, which bears some resemblance to the contract of sale. Art. 1858. — Minors, not emancipated, are relicvablc against simple lesion in every species of contract. That is called simple lesion, in which the amount to be suffered by it, is not designated by law, as it is in the cases above mentioned of partition and sale between poisons of full age. Art. 1859. — As to such contracts as they are, by virtue of their emancipation, authorized to make, they are entitled to no other relief against lesion than if they were of full age. As to all other contracts, which they can make only under certain formalities, they are in the same situation with other minors, and may have relief for simple lesion, or prosecute the action of nullity against the contract. Art. 1860. — Lesion needs not be alleged to invalidate such con- tracts as are made by minors, either without the intervention of their tutors or curators, or with such intervention, but unattended by the forms prescribed by law. Such contracts, being void by law, may be declared so, either in a suit for nullity or on exception, Avithout any other proof than that of the minority of the party and the want of for- mality in the act. Art. 1861. — But in contracts made with minors, when duly autho- rized, and when all the forms of law have been pursued, on alleging and proving even simple lesion, they will be relieved with the exception of the cases provided for in the next two articles. See 4 K 37a Art. 1862. — When all the formalities required by law for the alien- ation or the partition of the property of minors, or pcr,sons interdicted, have been fulfilled, the acts made for those purposes shall have the same force, as if they had been executed by persons of full age and sound mind. 254 OF CONVENTIONAL OBLIGATIONS. Art. 18G3. — No lesion whatever, even in the case of minors, can invalidate judicial sales, or sales of insolvent's property made by syndics or other trustees. Sales, directed or authorized by courts of probates, are judicial sales under this provision. 13 L. 486. Art. 18G4. — When lesion is alleged to invalidate a partition or sale, the party alleging it must first prove the value of the property sold, in the state in which it was at the time of the contract, according to the usual terms of credit given on sales of property of that description. He must then show how much the price given Avas less than such value ; but if the price given was paid at longer periods than those usually given on such sales, the interest for the time exceeding such usual credit must be deducted from such price ; or, if the price was paid in shorter periods than those of such usual credit, then the interest for the time such pay- ment has fallen short of the usual credit, shall be added to the price actually paid, and from a comparison of the price after these additions or deductions with the estimated value, the court shall determine whe- ther, according to law applied to the circumstances of the case, there is a lesion sufficient to invalidate the contract. 6 L. TC2. Art. 1865. — In all questions of lesion the value of that which was the subject of the contract at the time of making it, is the rule by which the lesion is to be ascertained. Even in the case of minors, changes in value by subsequent events are not to affect the conti-act. Art. 1866. — If a minor should, at the time of the contract, declare himself of full age, it will be no bar to his obtaining relief against lesion. Art. 1867. — A minor, who is a banker, factor, ti-ader or artisan, is not relicvable against lesion in contracts made for the purpose of his trade or business, nor is he relievable against lesion in any of the stipulations of his marriage contract, if such contract be made with the consent and pursuant to the formalities in such case provided by law. 15L. 14; 2E. 513; 2 A. 398. Art. 1868. — He is not relievable against obligations resulting from offences or quasi offences. Art. 1869. — A ratification made by a person of full age of any con- tract made during his minority, cures all defects arising as well from the want of the necessary formalities as from the want of a proper consider- ation. No action for nullity or lesion can be brought after such ratifi- cation. 6 R. 429 ; 2 A. 3GT. Art. 1870. — Actions for lesion are limited to four years, to date from the time of the contract between the persons of full age, and from the age of majority in contracts of minors. . 8 A. 533. 255 OF CONVENTIONAL OBLIGATIONS. 255 Art. 1871. — In actions, brought for relief against a sale or partition made between persons of full age, or in a like action, brought for lesion only, in a sale made by a minor or on his account, the purchaser may elect either to rescind the sale, or to have it confirmed on paying the full value. But this election must be made within a period to be desig- nated in an interlocutory degree, determining the true value and the terms on which the payment is to be made. 3 A. 569. Art. 1872. — If the purchaser elect to rescind the sale, he must restore the property with all the profits received, or which he might have received from the property from the time of bringing the suit ; and the seller shall repay the purchase money, which he has received, with interest from; the same time, give up and cancel the securities given for such part, if any, as remains unpaid ; and moreover pay for such im- provements made by the purchaser as add a permanent value to the property, according to their value at the time of the rescission of the sale. G L. 7G2. Art. 1873. — The purchaser, on his part, in case of rescission, is accountable for all injuries and dilapidations arising from his neglect or fault. Art. 1874. — The judge, in pronouncing the final decree, shall make compensation between the parties of their respective demands, and determine what balance shall be paid, and by which of the parties, according to the principles stated in the preceding articles. § 11. — General Provisionn applicahle to Error^ Violence and Fraud in Contracts. Art. 1875. — Engagements made througli error, violence, fraud or menace, are not absolutely null, but are voidable by the parties who have contracted under the influence of such error, fraud, violence or menace, or by the representatives of such parties. See T L. 49S. Art. 1876. — They may be avoided either by exception to suits brought on such contracts, or by an action brought for that purpose. Section ill. — Of the Object and Matter of Contracts. Art. 1877. — Every contract has for its object something wliich one or both of the parties oblige themselves to give, or to do, or not to do. Sec 7 L. 493. Art. 1878. — The more use or the mere possession of a thing, may be, as well as the thing itself, the object of a contract. Art. 1879. — All things, in the most extensive sense of the expres- sion, corporeal or incorporeal, movable or immovable, to which rights can legally be acquired, may become the object of contracts. See 17 L. 447. 256 OF CONVENTIONAL OBLIGATIONS. Art. 18S0. — An obligation must have for its object, something de- terminate, at least as to its siDccies. The quantity of a thing may be uncertain, provided it be capable of being ascertained. Art. 1881. — Future things may be the object of an obligation. One cannot, however, renounce the succession of an estate not yet devolved, nor can any stipulation be made with regard to such a succes- sion, even with the consent of him whose succession is in question. Art. 1882. — Yet a future succession may become the object of a marriage contract; it may be stipulated that such succession shall be dotal or paraphernal, that it should be vested in real estate, or other covenants of the like nature, for the benefit of one of the parties or their children. Art. 1883. — No one can, by a contract in his own name, bind any one but himself or his representatives ; but he may contract in his own name, that another shall ratify or perform the stipulation which he makes, and in this case he shall be liable in damages, if the contract be not ratified or performed by the person for whose act he stipulates. Sep 11 L. 28G. Art. 1884. — A person may also, in his own name, make some ad- vantage for a third person the condition or consideration of a commu- tative contract, or onerous donation ; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked. 2N. S. G72: 3 N. 8.607; 4N. S. 527; 6N. S. 152; 5 L. 31C; 9 K. 19; 1 A. 2S0, 372 ; 2 A. 940 ; 8 A 129 ; 5 A. 225. Art. 1885. — The object of a contract must be possible, by which is meant physically or morally possible. The possibility must be deter- mined, not by the means or ability of the party, but by the nature of things. 3 A. 203 ; 4 A. 143 ; See 5 N. S. 409 ; 2 R. 163 ; See 1960. Art. 1886. — That is considered as morally impossible which is for- bidden by law or morals. All contracts having such an object are void. 3 A. 203 ; 4 A. 145, 519, 541 ; 5 A. 225, G93 ; See 1SS5, 1960. Section IV. — Of tJic Cause or Consideration of Contracts. Art. 1.887. — An obligation without a cause, or with a false or un- lawful cause, can have no effect. 3 N. S. 205 ; 6 N. S. 217 ; 1 L 2SS ; 5 E. 101 ; 1 A. 192 ; See 12 E. 302, 378 ; 1 A. 176. Art. 1888. — An agreement is not the less valid, though the cause be not expressed. 5 L. T2, 78 ; 6 L. 217 ; 1 A. 192,; 3 A. 230 ; Sec 10 L. 167 ; 1 A. 176. 257 OF CONVENTIONAL OBLIGATIONS. 257 Art. 1889. — The cause is illicit, when it is forbidden by law, wlicn it is contra bonos mores (contrary to moral conduct) or to public order. 3N. S.205; 5N. S. 409; CN. S. 217; IL. 2SS; Seo2 R. 1G3; 12 E. 302. Art. 1890. — By the cause of the contract in this section is meant the consideration or motive for making it, and a contract is said to be without a cause, whenever the party was in error, supposing that which was his inducement for contracting to exist, when in fact it had never existed, or had ceased to exist before the contract was made. 19 L. 140 ; See 2 E. 163 ; 12 R. 302. Art. 1 89 1 . — The contract is also considered as being without cause when the consideration for making it was something which, in the con- templation of the parties, was thereafter expected to exist or take place, and which did not take place or exist. A gift in consideration of a fu- ture marriage is void by this rule, if the marriage do not take place. Art. 1892. — Where the consideration or cause of the contract really exists at the time of making it, but afterwards fails, it will not affect the contract, if all that was intended by the parties be carried into effect at the time. The destruction of property sold, after the sale is perfected, without the fault of the seller, is a case governed by this rule. Art. 1893. — But, if the contract consists of several successive obli- gations to be performed at different times, and the equivalent is not given in advance for the whole, but is either expressly or impliedly pro- mised to be given at future periods ; then, if the cause of the contract, corresponding to either of the successive obligations, should fail, the obligation depending on it will cease also. Thus, in leases for years, the obligation to pay the yearly rent ceases, if the property which is leased should be destroyed. 19 L. 140; See 14 L. 501. Art. 1894. — If the cause expressed in the consideration should be one that does not exist, yet the contract cannot be invalidated if the party can show the existence of a true and sufficient consideration. 10 L. 164 ; A. 230, 280. CHAPTER III. OF THE EFFECT OF OBLIGATIONS. Section I. — General Dispositions. Art. 1895. — Agreements, legally entered into, have the effect of laws on those who have formed them. They cannot be revoked, unless by mutual consent of the parties, or for causes acknowledged by law. They must be performed with good faith. See 2 R. 163. Art. 1896. — But a contract, in which any thing is stipulated foi the benefit of a third person, who has signified his assent to accept it, 17 :258 OF CONVENTIONAL OBLIGATIONS. cannot be revoked as to the advantage stipulated in his favor, witliout his consent. 1 A. 372 ; 3 A. 129 ; 12 R. 152; See IS04. Art. 1897. — The obligation of contracts extends not only to what is expressly stipulated, but also to every thing that, by law, equity, or custom, is considered as incidental to the particular contract, or ueces- sar}' to carry it into effect. 3 L. 225, 22S ; 1 A. 419 ; 3 A. COO. Art. 1898. — Contracts, as to their effects upon property or real rights, are of two kinds : 1. Such as purport a transfer of that which is the object of the cor- tract ; 2. Such as only give a temporary right to the enjoyment of it. Section II. — Of the ObHsatioii of Giving. Art. 1899. — The term to give, in thi.^* division of obligations, is ap- plied only to corporeal objects, that may be actually delivered from one to another ; and it includes the payment of money as well as the delivery of any other article. A covenant, respecting an incorporeal right, comes under the definition of contracts to do or not to do, because some act, besides that of deliver}^ is necessary for the transfer of such rights. Art. 1900. — A contract for the delivery of a promissory note pay- able to bearer, or payable to order, and already indorsed, or any other negotiable paper of the same nature, also indorsed, or transferable by delivery only, comes under the description of a contract to give ; but a contract to transfer a note to order not indorsed, or any other debt that requires an act of transfer, is an obligation to do. Art. 1901. — The obligation of giving includes that of delivering the thing, and of keeping it safe, until tlie delivery of it. The person who contracts to give, being liable, on failure, to pay damages to the person with whom he has contracted. Art. 1902. — The obligation of carefully keeping the tiling, Avhcther the object of the contract be solely the utility of one of the parties, or whether its object be their common utility, subjects the person, who has the thing in his keeping, to take all the care of it that could be expected from a prudent administrator. This obligation is more or less extended with regard to certain con- tracts, the effects of which, in this respect, arc explained under their re- spective titles. See 18 L. 553 ; 1 A. 844. Art. 1903. — If the obligation be to deliver an object which is par- ticularly specified, it is perfect by the mere consent of the parties. It renders the creditor the owner, and although it was not delivered to him, puts the thing at his risk from the date of the obligation, if the contract was one of those that purport a transfer. 2 A. 054, 746 ; See 1914. Art. 1904. — But if the debtor of a thing is in default for not having made the delivery, it is at his risk from the time of his default. C L. 159 ; See 2 K. 313 ; 1 A. 409. 259 OF CONVENTIONAL OBLIGATIONS 259 Art. 1905. — Tlie debtor may be put in default iu three different ways : by the terms of the contract, by the act of the creditor, or by the operation of law : 1 L. 269, 4G9 ; 5 L, 375 ; 3 A. 2flS, 444. 1. By the terms of the contract, when it specially provides that the party, failing to comply, shall be deemed to be in default by the mere act of his failure ; 5L. 3T5; 6 R. 450. 2. By the act of the party, when at or after the time stipulated for the performance, he demands that it sliall be carried into effect, which de- mand may be made, cither by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisi- tion made in the presence of two witnesses ; 5 L. 375 ; 9 L. 47S ; 17 L. 810, 341, 34G ; 18 L. SS ; 9 R. 492 ; Seo 1 L. 2G9 ; 3 L. 99. 3. By the operation of law. This takes place in cases where the breach of the contract alone is by law declared to be equivalent to a de- fault. The law having declared that the neglect to return a thing loan- ed for use, at the stipulated time, or the application of it to another use than the one for which it was lent, puts it at the risk of tlie borrower ; this without any act of the lender puts the borrower in default, and forms an example of this part of the rule. 1 A. 391 ; See IS L. 91. Art. 1906. — The effects of being put in default are not only that, in contracts to give the tiling, which is the object of the stipulation, is at the risk of the person in default ; but in the cases hereinafter provided for, is a prerequisite to tlie recovery of damages and of profits and fruits, or to the rescission of the contract, 6 N. a 230, 624 ; 1 L. 9S ; 7 L. 193 ; 13 L. 229 ; 17 L. S42 ; 18 L. 88 ; 2 R. 493 : 3 R. 400 ; 6 R. 450 ; 9 R. 495 ; 10 R. 524 ; 1 A. 391 ; 3 A. 208. Art. 1907. — In commutative contracts, where the reciprocal obliga- tions are to be performed at the same time, or the one immediately after the other, the party, who wishes to put the other in default, must at the time and place expressed in, or implied b}^ the agreement, offer or per- form, as the contract requires, that which on his part was to be perform- ed, or the opposite party will not be legally put iu default. 8L. 882; 5L.8T5; 6 L. 154; 18 L. 229,449; 15 L. 297; 5 K. 83; 8 A. 274; 5;V.577; &ce 1905. Art. 1908. — Although the contract be, cither not commutative, or, if commutative, the reciprocal obligations are not to be performed at the same time, yet the party wishing to put the other in default, must be himself ready, and must offer to receive the performance at the time and place stipulated in the contract or implied from the nature of the act to be done, and he cannot avail himself of any demand at any other time or place ; but if the obligation be to do or give any thing that may as well be given, or done at one time and place as at another, then the party failing may be put in default as well after, as at the time the obligation 260 OF CONVENTION'AL OBLIGATIONS. becomes due. Promissory notes and bills of exchange are not governed by this rule, but by those of commercial law. 18 L. 229; 3 A. 464 ; See 1906. Art. 1900. — But if the object, contracted to be given, be not a thing particularly specified, but is uncertain, indeterminate or described only by quantity or number, it is at the risk of the creditor only from the time he is in legal default for not receiving the thing after it^.has been tendered. A contract to deliver a certain mimbcr of bushels af wheat, to pay a certain sum of money, or to ship a certain number of hogshead? of sugar, without further identification, comes under this rule. Art. 1910. — There is an exception to the rule established in the last preceding article ; when the object of the contract, although indetermi- nate in itself, makes part of a whole that is determinate and certain, and the whole, of which it forms a part, is lost or destroyed by inevitable accident before delivery, the loss will fall on the creditor of the thing sold. A sale of ten bales, of the hundred bales of cotton in a particular store, is an example of this rule, and if all the cotton be destroyed by fire, the accident will discharge the seller from the obligation of deliver- ing it. » Art. 1911. — In the case provided for by the last article, it must ap- pear that the designation of the mass, from which the particular object of the contract is to be taken, was intended by the parties as restrictive, that is to say, that their intention was confined to that particular pro- per t}'', and no other of the same kind. Where such intent is not clearly expressed, it shall be presumed that no such restriction was intended ; and the thing is at the risk of the debtor until delivery or default. Art. 1912. — Although the contract contain an obligation to deliver, yet if it be one that does not purport a transfer of property, the thing is always at the risk of the obligor, provided there be no specific agreement to the contrary. Art. 1913. — If the contract be complete, and be one that purports a transfer of property, its destruction before delivery or default does not exonerate the party who was to have received it, from the performance or delivery of that which on his part was intended as the price or equiv- alent for such property. Art. 1914. — The rule, that the obligation to deliver a determinate object is perfect by the mere consent of the parties, and that the obligee is the owner from the time of such contract, is without any exception as i-espects immovables, not only between the parties, but as to all the world, provided the contract be clothed with the formalities req[uired by law, that it is bona fide, and purports to transfer the property. Sec 1903. Art. 1915. — In cases, however, of contracts, which purport to trans- fer immovable property, if he who transfers it is suffered by the obligee 261 OF CONVENTIONAL OBLIGATIONS. 26 1 to remain in corporal possession for a longer time than is reasonably re- quired to deliver the actual possession and to act as owner, to the injury of a third person, who may afterwards contract with him, or acquire rights upon his property as creditor, it will be considered as a mark of fraud, and will throw the burden of proving that the contract was made hona fide upon him to whom the property was transferred by the first contract, in any controversy with creditors of the obligor or persons ac- quiring bona fide intermediate rights by contract with him. 4 L. 340 ; 6 L. 53S ; 11 L. 27G ; 17 L. 859 ; 5 R. 18 ; 7 R. 434 ; 2 A. 26G, 012 ; Sec 5 A. 1 ; See 2456. Art. 19 IG. — "With respect to personal effects, although, by the rule referred to in the two last preceding articles, the consent to transfer vests the property in the obligee, yet this effect is strictly confined to the par- ties until actual delivery of the object. If the vendor, being in posses- sion, sliould, by a second contract, transfer tlie property to another per- son, who gets the possession before the first obligee, the last transferee is considered as the proprietor, provided the contract be made on his part bo7iafidc, and without notice of the former contract. 3 M. 222,269; 4M. 25; 5M.32; 7M.24; 9M.403: 12 L. 375; 1R.26; 3 R. 331 ; 12 R. 51 ; 1 A.59; See 2243. Art. 1917. — In like manner, if personal property be transferred by contract, but not delivered, it is liable in the hands of the obligor to seiz- ure and attachment, in behalf of his creditors. 1 A. 59 ; 3 A. 402 ; See 2243, 2456. Art. 1918. — "What shall be considered a delivery of possession, is de- termined by the rules of law, applicable to the situation and nature of the property. 8co 2243. Art. 1919. — If the contract be one of those that do not purport to transfer property, but only to give a right to the temporary enjoyment of it, the right to that enjoyment vests by the mere consent of the par- ties, in the same manner and subject to the same rules as are above laid down for contracts which purport to transfer the property itself. Section III. — Of the Obligations to do or not to do. Art. 1920. — On the breach of any obligation to do, or not to do, the obligee is entitled cither to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in tin; fol- lowing section. 8 R. 157. Art. 1921. — In ordinary cases, the breach of such a contract entitles the party aggrieved only to damages, but where this would be an iuade- 262 OF CONVENTIONAL OBLIGATIONS. quate compensation, and the party has the power of performing the con- tract, he may be constrained to a specific performance by means pre- scribed in the laws which regulate the practice of the courts. Art. 1922. — The obligee may require that any thing which has been done in violation of a contract, may be undone, if the nature of the case will permit, and that things be restored to the situation in which they were before the act complained of was done, and the court may order this to be effected by its officers, or authorize the injured party to do it him- self at the expense of the other, and may also add damages, if the justice of the case require it. Art. 1923. — If the obligation be not to do, the obligee may also de> mand that the obligor be restrained from doing any thing in contraven- tion of it, in cases where he proves an attempt to do the act covenanted against. Section IV. — Of the Damages resulting from the Incxccntion of Obli- gations. Art. 1924. — The obligations of contracts extending to whatsoever is incident to such contracts, the party, who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default. See 8 E. 227. Art. 1925. — A contract may be violated, either actively by doing something inconsistent with the obligation it has proposed, or passively by not doing what was covenanted to be done, or not doing it at the time, or in the manner stipulated or implied from the nature of the con- See C K. 216; 8 K. 22T; 9 R. 194; 12 E. ITS. Art. 1 926. — When there is an active violation of the contract, dam ages are due from the moment the act of contravention has been done, and the creditor is under no obligation to put the debtor in default, in order to entitle him to his action. 3 L. 40 ; IE. 543. * Art. 1927. — When the breach has been passive only, damages are due from the time that the debtor has been put in default, in the manner directed in this chapter. The rules contained in this and the preceding articles, however, are subject to the following exceptions and modifications : ' 6 N. S. 231 ; 2 L. 9T ; 5 L. 415; 8 A. 444. 1. When the thing to be given or done by the contract was of such a nature, that it could only be given or done within a certain time, which has elapsed, or under certain circumstances which no longer exist, the debtor need not be put in legal delay to entitle the creditor to damages ; 2. Where, by a fortuitous event or irresistible force, the debtor is hindered from giving or doing what he has contracted to give or do, or is from the same causes com2)elled to do what the contract bound him 263 OF CONVENTIONAL OBLIGATIONS. 263 not to do, no damages can be recovered for the incxecution of the con- tract ; 3. There are two exceptions to the last rule ; first, when the party in default has by his contract expressly or implicitly undertaken the risk of the fortuitoiis event, or of the irresistible force ; secondly, if the fortuitous event, or case of force, Avas preceded by some fault of the debtor, without which the loss Avould not have happened ; 4. Although the responsibility of the debtor for the object he was bound to deliver, is incurred from the moment he is put in default, yet if it is lost by some fortuitous event or irresistible force, by which it would also have been lost, had it been in the hands of the creditor, the debtor is not answerable for the value, but only for the delay. 2 A. 272. Art. 1928. — Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modificatious : 3 L. 82S ; 13 L. 404 ; 3 A. 140, 149, 464, 54S, CTl ; 6 A. 491. 1. When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. By bad faith in this and the next rule is not meant the mere breach of faith in not complying with the contract, but a designed breach of it from some motive of interest or ill will ; 2. When the incxecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as were, or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of that contract ; but even when there is fraud, the damages cannot exceed this; 8 A. 140, 149 ; 4 A. 79. 3. Although the general rule is, that damages are the amount of tlie loss the creditor has sustained, or of the gain of which he has been de- prived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuni- ary gain to the party. Where the contract has for its object the grati- fication of some intellectual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, although these arc not appreciated in money by the parties, yet damages arc due for their breach : a contract for a religious or charitable foundation, a pro- mise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule. In the assessment of damages under this rule, as well as in cases of offences, quasi off"ences, and quasi contracts, much discretion must bo 264 OF CONVENTIONAL OBLIGATIONS. left to the judge or jury, while in other cases they have none, but are hound to give such damages under the above rules as will indemnify the creditors, whenever the contract has been broken by the fault, negligence.' fraud or bad faith of the debtor ; 16 L. S94 ; 5 E. 116 ; 8 E. 51 ; 9 E. 307 ; 12 E. 20 ; 5 A. 316 ; 4 A. 440 ; V. 2294. 4. If the creditor be guilty of any bad faith, which retards or pre- vents the execution of the contract, or if, at the time of making it, he knew of any facts that must prevent or dehay its performance, and con cealed them from the debtor, he is not entitled to damages ; 3 A. 54S. 5. Where the parties, by their contract, have determined the sum that shall be paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. But when the contract is exe- cuted in part, the damages agreed on by the parties may be reduced to the loss really suffered, and the gain of which the party has been deprived, unless there has been an express agi-eement that the sum fixed by the contract shall be paid, even on a partial breach of the agreement. 5 A. 821 ; See E. 216 ; 5 A. 018 Art. 1929. — The damages due for delay in the performance of an obligation to pay money, are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more. 7 L. 192 ; 15 L. 371 ; 3 A. 548 ; 5 A. 618. Art. 1930. — Interest is of two kinds, conventional and legal; the rate of both is fixed by law in the chapter on loans on interest. 1 A. 265. Art. 1931. — In contracts stipulating a conventional interest, it is due without any demand, from the time stipulated for its commence- ment until the principal is paid. 7L. 482, 565; 1 A. 265. Art. 1932. — In contracts which do not stipulate for the payment of interest, it is due from the time the debtor is put in default for the payment of the principal, and is to be calculated on whatsoever sum shall be found by the judgment to have been due at the time of the default. Stat. 9th March, 1852, p. 95. — All debts shall bear interest at the rate of five per cent, per annum from the time they become due, unless otherwise stipulated. 19 L. 431, 520 ; 8 E. 13 ; 1 A. 265 ; 2 A. 363 ; 3 A. 338. Art. 1933, — When the sum is due for property yielding a revenue, interest is due from the time the principal is payable, without any de- mand. 1 A. 140. Art. 1934. — Interest upon interest cannot be recovered, unless it be 265 OF CON-VENTIONAL OBLIGATIONS. 265 added to the principal, and by another contract made a new debt. No stipulation to that eifect in the original contract is valid. 3 L. 430 ; 2 A. 241 ; 4 A. 206 ; 5 A. 61S. Art. 1935. — In cases where no conventional interest is stipulated, the legal interest, at the time the defendant was put in default, shall be recovered, although the rate may have been subsequently changed by law. Art. 1936. — The surety, who is obliged to pay money for his prin- cipal, is not bound by the preceding rule respecting interest on interest: he shall receive interest on the whole sum he has paid, whether for prin- cipal or interest from the time of the payment, without any demand. 6 L. 762. Art. 1937. — The interest on loans, on bottomry and respondentia, may also exceed the rate of legal or conventional interest. Art. 1938. — The debtor is liable only to such damages as were fore- seen, or might have been foreseen at the time of contracting, when it is not owing to his fraud, that the obligation has not been executed. Art. 1939. — Sums, which arc due for yearly rents, for annuities, either forever or for life, bear interest from the day the debtor was in default, either by the terms of his agreement or otlierwise. The same rule applies to sums due for the restitution of profits, or for interest paid by a third person in discharge of the debtor. Section V. — Of the Interpretation nf Agreements. Art. 1940. — Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules : 11 L. 72. I 1. That no general or special legislative act can be so construed as to avoid or modify a legal contract, previously made ; 2. That courts are bound to give legal effect to all such contracts, according to the true intent of all the parties ; 3. That the intent is to be determined by the words of the contract, when these are clear and explicit, and lead to no absurd conseipence ; 2 A. 16S. 4. That it is the common intent of the parties, that is, the interest of all, that is to be sought for ; if there was a difference in this intent, there was no common consent, and consequently no contract. 1 A. 85, 232; See 12 R. 31. All the articles of this section contain rules established by law for discovering the intent, when either the words of the agreement are am- biguous, or circumstances render it doubtful. They apply as well to verbal as to written anrreements. 266 OF CGNVENTIONAL OBLIGATIONS. Art. 1941. — The words of a contract are to be understood, like those of a law, in the common and usual signification, without attending so much to grammatical rules, as to general and popular use. Art. 194:2. — Terms of art or technical phrases are to be interpreted according to their received meaning with those who profess the art or profession to which they belong. 1 A. 35 ; 2 A. 16S. Art. 1943. — When there is a doubt as to the true sense of the words of a contract, they may be explained by referring to other words or phrases used in making the same contract. Sec 12 K. 31. Art. 1944. — When there is any thing doubtful in one contract, it may be explained by referring to other contracts or agreements made on the same subject between the same parties, before or after the agree- ment in question. Art. 1945. — When there is any thing doubtful in agreements, we must endeavor to ascertain what was the common intention of the par- ties, rather than to adhere to the literal sense of the terms. 10 E. 365; 12 R. 31, 16T. Art. 1946. — When a clause is susceptible of two intex-pretations, it must be understood in that in which it may have some effect, rather than in a sense which would render it nugatory. Art. 1947. — Terms, that present two meanings, must be taken in the sense most congruous to the matter of the contract. 10 E. 365. Art. 1948.— Whatever is ambiguous, is determined according to the usage of the country where the contract is made. Art. 1949. — In contracts, the clauses in common use must be sup- plied, though they be not expressed. Art. 1950. — All clauses of agreements are interpreted the one hy the other, giving to each the sense that results from the entire act. See 12 E. 31. Art. 1951. — When the intent of the parties is doubtful, the con- struction put upon it by the manner in which it has been executed by both, or by one with the express or implied assent of the other, fur- nishes a rule for its interpretatioii. 1 L. 260 ; 12 L. 546 ; 3 E. ITl ; 12 E. 167 ; 1 A. 232 ; 2 A. 249, 475 ; 3 A. 663 ; 4 A. 441 ; See 6 E. 378. Art. 1952.— In a doubtful case, the agreement is interpreted against him who has contracted the obligation. C L. 191 ; 3 E. 171 ; 1 A. 391 ; 2 A. 249 ; 3 A. 224 ; 6 A. 204. ■* Art. 1953. — But if the doubt or obscurity arise for the want of ne cessary explanation, which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favor- able to the other party shall be adopted, whether he be obligor or obli- gee. 6 A. 204; See 10 E. 52. Art. 1954. — However general be the terms in which a contract is couched, it extends only to the things, concerning which it appears that the parties intended to contract. 267 OF CONVENTIONAL OBLIGATIONS. 26? Art. 1955. — But when .the object of the contract is an aggregate, composed of many or of diiFerent articles, there the general description or aggregate name will include all the particular articles which enter into the composition of the whole, although they were not specified, or were even unknown to both or either of the parties. A release of a share in a succession, under this rule, shall not be set aside on an alle- gation that the succession contained more or less tliau was supposed ; where there is concealment, however, or fraud, it would be void under other rules before laid down. Art. I95G. — The rule, laid down in the last article, must also bo taken with the further modification that, although the aggregate appella- tion or description be used, yet, if by some other part of the contract, it appears that the intent of tlie parties was not to include the whole, but only that part of which they had notice, such evident intent shall cor- rect the universality of tlic description. Thus, in a release of a whole share in a succession, if there be a reference to an inventory as descrip- tive of what that share is, the contract, notwithstanding the general terms, shall be confined to what is contained in the inventory. Art. 1957. — When a contract contains general obligations, and the parties, in order to avoid a doubt whether a particular case comes with- in the scope of the agreement, have made special provision for such case, the general terms of the contract shall not, on this account, be re- stricted to the single case that is provided for. Section VI. — Of the Obligations to Perform, as hicidents to a Con- tract, all that is required by Equity, Usage, or Law. Art. 1958. — When the intent of the parties is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or re- strain that intent, nor can any law operate to that effect, unless it be some prohibition or other provision, which the parties Jiad no right to modify or renounce. Art. 1959. — Equity, usage, and law supply such incitlents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources. Art. 1960. — The equity intended by this rule is founded in the Christian principle not to do unto others tliat which we would not wish others should do unto us, and on the moral maxim of the law that no one ought to enrich himself at the expense of another. Wlien tlie law of the land, and that which the parties have made for tlicmselves by their contract, are silent, courts must apply these principles to deter- mine what ought to be incidents to a contract, which arc re(j[uired by equity. 3 A. 203, 32G; 4 A. 1-15; Sec 12 L. 546; 1 A. 197; See 1SS5, ISSO. Art. 19GI. — By the word usage, mentioned iu the preceding arti* 26S OF COlfVENTlONAL OBLIGATIONS. cles, is meant that which is generally practised in affairs of the same nature with that which forms the subject of the contract. House rent in some cities is generally paid by the month, in others by the quarter. In a contract for the hire of a house, without express- ing when the rent was to be paid, the deficiency would be supplied by proof of the usage, but if a contrary intent appear in the contract, the usage would not contravene it. See 8 M. 809 ; 1 N. S. 192 ; 7 L. 211, 524; 18 L. 3S0 ; 4 K. 8S1 ; See 26S6. Art. 1962. — The law^ intended by the rule before referred to, means such legislative provisions as provide for these cases in which the par- ties have not declared their intention. When the contracting parties have not derogated from such law, its provisions are to be followed. The laws directing a community of matrimonial gains and a warranty on sales, are examples of this kind of legislative provision, which take effect and regulate the contract when the parties make no agreement that contravenes them. Section VII. — What Contracts shall be avoided by Persons not Parties to them. Art. 1963. — Contracts, considered with respect to their operation on property, either purport to transfer, or to give some determinate right upon it. A sale or exchange is an example of the first, a pledge or mortgage of the second of these species of contracts. There is a third right implied in all obligations, to wit : That the property of the debtor shall be liable for all consequences attending their non-perform- ance ; but this right cannot be exercised, unless the contract be broken, nor until judgment be obtained for the recovery of what is due in conse- quence of its breach. 6 L S3; 11 L. 424: 16 L. 363; 11 K. 190; See2L.54.3; lA. 132, 262; 3 A. 62T; 4 A. 36; 5 A. 400; See 19S9. Art. 1964. — From the principle, established by the last preceding article, it results that every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor, is illegal, and ought, as respects such creditor, to be avoided. This can be done in the mode and under the circumstances set forth in the following rules. 9 L. 855 ; 11 L. 530 ; 16 L. 869 ; 11 E. 190 ; See 11 L. 464. § 1. — Of the Action of the Creditors in Avoidance of Contracts^ and its Incidents. Art. 1965. — The law gives to every creditor, when there is no cession of goods as well as to the representatives of all the creditors where there is any such cession, or other proceedings by which they are collectively represented, an action to annul any contract made in fraud of their rights. I L. 500 2 L. 10, 19 ; 9 L. 355; 11 L. 521 ; 4 L. 841 ; 10 L. 106 ; 16 L. 809, 559 ; 17 L. 253 ; 4 A 309 865 ; See 8 L. 461 ; 13 L. 339; 4 A. 3C5. 269 OF CONVENTIONAL OBLIGATIONS. 269 Art. 1966. — This action can only be exercised, wlien the debtor has not property sufficieut to pay the debt of the complaining ci-editor, or of all his creditors where there has been a cession, or any proceeding analo- gous thereto. 1 L. 500. Art. 1967. — It cannot be exercised by individual creditors, until their debts are liquidated by a judgment, unless the defendant in such action be made party to the suit for liquidating the debt brought against the original debtor in the manner hereinafter directed. 1 E. 525 ; 10 R. 3ST ; 4 A. 135 ; 5 A. 401 ; See 1 L. 500 ; 12 L. 197 ; 10 R. 899. Art. 1968. — The defendant in such action may demand a discussion of the property belonging to the original debtor, before any judgment shall be pronounced in the suit to avoid the contract, and on his pointing out and proving the existence of such property situate within tliis State and the title to which is not in dispute, the suit against him shall be staid until such property shall be discussed, and if the result of this discussion be that the property pointed out is not applicable to the pay- ment of the plaintiff, the defendant shall bear all the expenses of the same. 4 L. 329; See 1 L. 500; 12 R. 141. Art. 1969. — If, during the pendency of the action given by this section, the original debtor discharges the debt due to the plaintiff or acquires the property applicable to its payment and sufficient in amount, such action can no longer be sustained, it being the true intent of the law that a contract avoidable by creditors under this section, cr.nnot on that account be avoided by either of the parties. Art. 1970. — The plaintiff' in the action given in this section may join the suit for annulling the contract to that which he brings against the original debtor for liquidating his debt by a judgment, and in such suit either of the defendants may controvert the demand of the plaintiff. 1 L. 500, 503; 1 R. 525 ; 10 E. 399 ; See 15 I* 470 ; 10 R. 3S7. Art. 1971. — When the defendant in the action given by this section has not been made party to the suit against the original debtor, he may controvert the demand of the plaintiff, although it be licpiidated by a judgment, in the same manner that the debtor might have done before the judgment. 1 E. 525 ; 10 E. 8S7, 399 ; 2 A. 544 ; 4 A. 135 ; See 12 L. 200. Art. 1972. — The judgment in this action, if maintained, shall be that the contract be avoided as to its effects on the complaining creditors, and that all the property or money taken from the original debtor's estate, by virtue thereof, or the value of such property to the amount of the debt, be applied to the payment of the plaintiffs. 6L. 540; 17L. 258, 559; 16L. 1«; 9 E. 231 ; 10 E. 399; 2 A. 14; 6 A. 552. . § 2. — What Contracts shall be avoided by this Action. Art. 1973. — No contract shall be avoided by tliis action but such as arc made in fraud of creditors, and such as, if carried into execution, 270 OF COXVENTTONAL OBLIGATIONS. would have tlie effect of defrauding tliem. If made in good faith, it cannot be annulled, although it prove injurious to the creditors, and although made in bad faith, it cannot be rescinded, unless it operate to their injur j\ 9 L. 355 : 10 L. 345, 348 ; 16 L. 145, 150, 863 ; 19 L. 600 ; 1 K. 527 ; 2 E. 3S, 99 ; 4 R. 408 ; 11 Pw. 190, 493, 533; See 4 L. 250; 12 K. 141. Art. 1974. — If the contract be onerous, and the original debtor made it with intent to defraud his creditors, but the person, with whom he contracted, was in good foith, the contract cannot be annulled, except under the circumstances and in the manner hereinafter provided. 10 L. 345, 348 ; 16 L. 150 ; 19 L. 600. Art. 1975. — If the contract be purely gratuitous, it shall be pre- sumed to have been made in fraud of creditors, if, at the time of making it, the debtor had not over and above the amount of his debts, more than twice the amount of the property passed by such gratuitous con- tract. 16 L. 150 ; See 10 L. 369. Art. 1976. — If the contract be onerous, but made in fraud on the part of the debtor, but in good faith on the part of the person with whom he contracted, if the value of the property transferred by such contract exceed by one-fifth the price or consideration given for it, the creditors may annul the contract, and take back tlie property on paying the price or the value of the consideration with interest, but in this case they shall not receive the fruits. 7L. 311; 10 L. 145. Art. 1977. — If the party, with whom the debtor contracted, be in fraud as well as the debtor, he shall not, on the annulling the contract, be entitled to a restitution of the price or consideration he may have paid, except for so much as he shall prove has inured to the benefit of the creditors by adding to the amount of property applicable to the pay- ment of their debts ; but if the only consideration be a sum due from such debtor to the part}^ with whom he contracted, then the only resti- tution to be made is the placing the parties in the situation in which they were before the contract complained of was made. 6L. S3; HE. 190; 2 A. 14. Art. 1978. — But if such fraud consisted merely in the endeavor to obtain a preference over other creditors, for the securing or payment of a just debt, under circumstances in which by law the endeavor to obtain such preference is declared to be a constructive fraud, in such case the party shall only lose the advantage endeavored to be secured by such contract, and shall be reimbursed what he may have given or paid, but without interest ; and he shall restore all advantages he has received from the transaction. 3L. 284; 4L. S3; 6 A. 652. Art. 1979. — Every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insol- vent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors of the obligor. 4 L. 254 ; 6 L. 83 ; 10 L. 363 ; 2 E. 88, 99 ; 4 E. 488 ; 5 E. 288 ; See 12 E. 141 ; See 1973. 271 OF CONVENTIONAL OBLIGATIONS. 27. Art. 1980. — By being in insolvent circumstances is meant, that the whole property and credits are not eqnal in amount, at a fair appraise- ment, to the debts due by the party. And if he, who alleges the insol- vency, shows the amount of debts, it is incumbent on the other party to show property to an equal or greater amount. To prove the state of his affairs at the period of the contract, tlie debtor may, at the option of the plaintiff, be examined as a witness in the action for annulling tho contract. 4 L. 254 ; 3 R. 106, 407 ; 4 R. 43S ; 5 A. 400 ; See 12 R. 141. Art. 1981. — No sale of property, or other contract made in the usual course of the party's business, n"or any payment of a just debt in money, shall be affected by virtue of any provision in this section, although the party was in insolvent circumstances, and the person with whom he contracted, or to whom he made the payment, knew of such insolvency. 4 L. 841 ; 19 L. 594; 4 R. 43S; See 6 L. 345. Art. 1982. — No contract made between the debtor and one of his creditors for the purpose of securing a just debt, shall be set aside under this section, although the debtor were insolvent to the knowledge of the creditor with whom he contracted, and although the other creditors are injured thereby, if such contract were made juore than one year before bringing the suit to avoid it, and if it contain no other cause of nullity than the preference given to one creditor over another. 3 L. 2G ; 4 L. 260 ; S L. SOS ; 9 L. 106 ; 11 L. 424, 532 ; 14 L. SOS, 322 ; 16 L. 103, 375 ; 19 L. 600 ; 1 R. 485; 2 R. 277; 4R. 408, 43S; 5R. 2S8; 6 R. 142; 9 R. 267; 11 R. 293; 2 A. 659 ; 3 A. 248; 4 A. 65: See 3 L. 274. Act. 1983. — If a debtor, in insolvent circumstances, shall anticipate the payment of a debt not yet payable, and shall, to the injury of the creditors whose debts were either then due, or would fall due before that of which he anticipated the payment, this shall be deemed to have been done in fraud of the creditors, and the creditor so preferred shall be obliged to share the loss ratably with the complaining creditors, each creditor, however, preserving the right of mortgage or privilege, if any, which his original debt gave him by law. Art. 1984. — Not only contracts which dispose of property, but all others which are made in fraud of creditors, and deprive them of their recourse to the property of their debtor, come within the provisions of this section. The renunciation of a succession or other right to prop- erty, the release of a debt without payment, or any other act of this kind, may be avoided by creditors, when done to their prejudice, under the rules above established. 19 L. 431 ; 1 R. 20 ; 4 R. 438 ; 8 R. 13 ; 1 A. 265 ; 2 A. 368 ; 3 A. 338 ; See 7 L. 509. Art. 1985. — In case the debtor refuse or neglect to accept an in- heritance to the prejudice of his creditors, they may accept the same, and exercise all his rights in the manner provided for in the title of successions, and they are authorized, by virtue of the action given by 272 OF CONVENTIONAL OBLIGATIONS. this section, to exercise all the rights which the debtor could do for recovering possession of the property to which he is entitled, in order to make the same available to the payment of their debts. 11 E. 314. Art. 1986. — There are rights of the debtor, however, which the creditors cannot exercise, even should he refuse to avail himself of them. They cannot require the separation of property between husband and wife, nor can they oblige their debtor to accept a donation inter vivos made to him, nor can they accept it in his stead. Neither can they call on a co-heir of the debtor to collate, when such debtor has not exercised that right. 2A. S43. Art. 1987. — There are also rights which are merely personal, that cannot be made liable to the payment of debts, and therefore no contract respecting them comes within the provision of this section ; these are the rights of personal servitude, of use and habitation, of usufruct to the estate of a minor child, to the income of dotal property, to money due for the salary of an office, or wages, or recompense for personal services. 1 E. 399, 435; 4 K. 340 ; 2 A. 843 ; 4 A. 307; See C. P. G4T. Art. 1988. — No creditor can, by the action given by this section, sue individually to annul any contract made before the time his debt accrued. 5N.S.9C,634; 2 L. 543 ; 4 L. 142, 261 ; 5L.126; 6 L. 540; 12 L. 201 ; 1TL.3G0; IE. 435; 1 A. 132 ; 6 A. 89. Art. 1989. — The action, given by this section, is limited to one year : if brought by a creditor individi\ally, to be counted from the time he has obtained judgment against the debtor ; if brought by syn- dics or other representatives of the creditors collectively, to be counted from the day of their appointment. 4L. 260; 8L. 308; 9L. 107; 11 L. 346, 424. 532 ; 14 L. 322; IfiL. 106, 3T0; 19 L. 594; IR. 435; 2 E. 277,408,438; 4 E. 395, 436; 5E.238; 6R. 142; 9E. 518; lOR. 74; HE. 314; 1 A. 132, 262, 440 ; 2 A. 4S3, 659 ; 3 A. 248, 627 ; 4 A. 36, C5, 329 ; 5 A. 400 ; See 8 N. S. 675 ; 3 L. 26, 29 ; See 19S2. CHAPTER IV. OF THE DIFFERENT KINDS OF OBLIGATIONS. Section I. — General Division of the Subject. Art. 1990. — The preceding chapters of this title have established rules applicable to contracts in general : this contains an enumeration of such obligations as are usually inserted in different contracts, and the following chapters show how they may be formed, proved and extin- guished. Subsequent titles enumerate the different kinds of contracts into which the general obligations may enter, and provides rules for their government. Art. 1991. — Independent of the division of obligations contained m 273 OF CONVENTIONAL OBLIGATIONS. 273 the first cliapter of this title, those, that 'usually enter into particular contracts, may be further distinguished by the following classification : Those which are strictly personal, or heritable, or real ; Simple or conditional ; Limited or unlimited as to the time of performance ; Disjunctive or alternative ; In relations to the parties, joint, several, or in solido j In their nature, divisible or indivisible ; As to their form, penal or not penal. Each of these divisions forms the subject of a difi"erent section of this chapter. Section II. — Of strictly Personal, Heritable^ and Real Obligations. Art. 1992. — An obligation is strictly personal, when none but the obligee can enforce the performance, or when it can be enforced only against the obligor. It is heritable, when the heirs and assigns of the one party may en- force the performance against the heirs of the other. It is real, when it is attached to real property, and passes with it into whatever hands it ma/ come, without making the third possessor personally responsible. Art. 1993. — An obligation may be personal as to the obligee, and heritable as to the obligor, and it may in like manner be heritable as to the obligee, and personal as to the obligor. Art. 1994. — Every obligation shall be deemed to be heritable as to both parties, unless the contrary be specially expressed, or necessarily implied from the nature of the contract. See 6 L. 102. Art. 1995. — The obligation shall be presumed to be personal on the part of the obligor, whenever, in a contract to do, he undertakes to perform any thing that requires his personal skill or attention ; in this case, if that, which was to be done, was not solely and exclusively for the use or gratification of the obligee, the obligation, although personal as to the obligor, will be heritable against the heirs of the obligee for the equivalent to be paid or given for that which was to be done. Art. 1996. — The obligation shall be presumed to be personal as to the obligee, in a contract to do or to give, when that which was to be done or given, was exclusively for the personal gratification of the obli- gee, and could produce no benefit to his heirs. Art. 1997. — In ca.se of obligations purely personal as to the obligor, if he have received an equivalent that can be appreciated in money as a consideration, but dies before performance of his obligation, his heirs may be obliged to restore it or its value. Art. 1998. — In like manner, if the obligation be purely persoaal as 274 OF CONVENTIONAL OBLIGATIONS. to the obligee Tvho dies before performance, his heirs may recover from the obligor the value of any equivalent he may have received. Art. 1999. — An obligation to pay an annuity to a certain person during the life of the obligor, is personal as to both, and is extinguish- ed by the death of either. Art. 2000. — A merely personal obligation to do, imposed by testa- ment as the condition on which a legacy is to take eifect, is void, if the legatee die before performance, or before he has been put in default, and the legacy will take effect. Art. 2001. — But if what is to be done, be a thing that can as well be done by the heirs of the legatee as by him, the obligation shall be heritable, and they must perform it before the legacy can take effect. The provisions of this and the preceding article relate only to testamen- tary dispositions. Art. 2002. — All contracts for the hire of labor, skill, or industry without any distinction, whether they can be as well performed by any other as by the obligor, unless there be some special agreement to the contrary, are considered as personal on the part of the obligor, but her- itable on the part of the obligee. Contracts of mandate and partnership are mutually personal. Art. 2003. — Heritable obligations and stipulations give to and im- pose upon heirs, assigns, and other representatives, the same duties and rights that the original parties had and were liable to, except that bene- ficiary heirs can only be liable to the amount of the succession. See 6 L. 102. Art. 2004. — All rights acquired by an heritable obligation may be assigned ; this assignment may be made, expressly by contract granting such right, or impliedly by the conveyance of the property to which they are attached. Art. 2005. — When obligations are attached to real property, they form the third branch of the first division of obligations of this chap- ter, and are called real obligations. Art. 2006* — Not only the obligation, but the right resulting from a contract relative to real property, passes with the property. Thus, the right of servitude in favor of real property, passes with it, and thus also the heir or other acquirer will have the right to enforce a contract made for the improvement of the property by the person from whom he acquired it. Art. 2007. — Eeal obligations may be created in three ways : 1. By the alienation of real property, subject to a real condition, either expressed or implied by law ; 2. By alienating to one person the real property, and to another, some real right to be exercised upon it : 275 OF CONVENTIONAL OBLIGATIONS. 275 3. By the creation of a right of mortgage upon it. All those contracts give rise to obligations purely real on the part of those who acquire the land, under whatever species of title they possess it ; they are not personally liable, but the real property is, and by aban- doning it to the obligee, they relieve themselves from all responsibilitj-. A sale subject to a rent charge, or to a right of redemption as con- sideration of the sale, are examples of the first kind of obligation ; ser- vitudes, the right of use and habitation and usufruct, are examples of the second ; and the several kinds of mortgages, and the creation of a rent charge of the third. See 2 L. 92. Art. 2008. — The real obligation, created by condition annexed to the alienation of real property, is susceptible of all the modifications that the will of the parties can suggest, except such as are forbidden by law. These conditions are either conditions precedent, which suspend the operation of the contract until they are performed, or subsequent and resolutory, which, unless they are performed, annul the contract. These will be more fully defined in the section which treats of conditional ob- ligations. Art. 2009. — There are also conditions implied by law, which create a legal obligation, such as the obligation to pay the price to the seller, and to furnish roads to the public. See 2 L. 92. Art. 2010. — Not only servitudes, but leases and all other rights, which the owner' had imposed on his land before the alienation of the soil, form real obligations which accompany it in the hands of the person who acquires it, although he have made no stipulation on the subject, or they be not mentioned in the act of transfer. The purchaser may, if the circumstances permit it, have relief against the seller for concealment of such charges, but the law establishes the rule, that no one can trans- fer a greater right than he himself has, except where the neglect of some formality required by law has subjected the owner of the real encum- brance required to a loss of his right, in favor of a creditor or bona fide purcliaser. See 4 N. S. 6GG ; 2 L. 92, 514. Art. 201 1. — The several kinds of mortgages which create a real ob- ligation, and the rules to which they are subject, will be found in the corresponding title of this book. Art. 2012. — A rent charge, created byway of condition to the ali- enation of the property, has been herein before explained. But a rent charge may be created and imposed on particular property, independent of any alienation of it, for the security or extinguishment of a debt , and it may be perpetual or temporary, and, in either case, forms a real obli- gation, which passes with the laud. Art. 2013. — By the constitution of rent charge, the possession of the property does not pass to the obligee, it is merely a designation of 276 OF CONVENTIONAL OBLIGATIONS. the property, which is subject to the obligation; should the possession be delivered, it becomes another species of contract called antichresis, the rules relative to which are found under the proper head. Art. 2014. — Considered with respect to those who have contracted them some real obligations are also personal, such are those created by mortgage for the payment of a debt. Others- are strictly real, both as to the contracting party and his heirs or other successors. A mortgage given to secure the debt of another, without any obligation of personal responsibility, is an example of this latter kind. But no real obligation is pei'sonal, as to a subsequent possessor of the property on which it is created, unless he has made it such by his own act. Section III. — Of Simple and Conditional Obligations, § 1. General Fromsions. Art. 2015. — Simple obligations are such as are not dependent for their execution on any event provided for by the parties, and which are not agreed to become void, on the happening of any such event. 2 A. 9S9 ; See 5 N. S. 409 ; 3 L. 308 ; 2 K. 168. Art. 2016. — Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take e fifect until the event happen, it is a suspensive condition ; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition. 3 L. 313 ; 2 A. 089 ; See 10 K. 521. Art. 2017. — Conditions, whether suspensive or resolutory, are eithex casual, potestative, or mixed. Art. 2018. — The casual condition is that which depends on chance, and is no way in the power either of the creditor or of the debtor. Art. 2019. — The potestative condition is that which makes the exe- cution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder. 3 L. 313. Art. 2020. — A mixed condition is one that depends at the same time on the will of one of the parties, and on the will of a third person, or on the will of one of the parties and also on a casual event. Art. 2021. — Conditions are either express or implied. They are express, when they appear in the contract ; they are implied, whenever they result from the operation of law, from the nature of the contract, or from the presumed intent of the parties. 2 A. 989; 6 A. 84, Art. 2022. — Whether the parties intended to create a condition, or only to modify the obligation without making its existence depend on 277 OF CONVENTIONAL OBLIGATIONS. 277 the event, must be determined, in doubtful cases, by applying the rulcb herein before established for the interpretation of obligations. Art. 2023. — The contract for which the condition forms a part, is. like all others, complete by the assent of the parties ; the obligee has a right of which the obligor cannot deprive him ; its exercise is only sus- pended, or may be defeated, according to the nature of the condition. 8 A. 2T4 Art. 2024. — The right, described in the last preceding article, is heritable, if it be not one of those that result from an obligation desig- nated in the preceding section as a personal one. Art. 2025. — The right acquired by a legatee under a conditional be- quest, is the same as that given to an obligee by contract, and creates a corresponding obligation on the heirs to deliver the legacy on the hap- pening of the condition. But there is this diflference, that (except in the case provided for in tlie last preceding section, of the condition to do a mei'cly personal act), the right is not transmitted to the heirs of the le- gatee, in case he die before the condition happens, unless the testator has expressed a different intention. Art. 202G. — Every condition of a thing impossible, or contra bonos mores (repugnant to moral conduct), or prohibited by kiw, is null, and renders void the agreement which depends on it. Art. 2027. — The condition not to do a thing impossible, does not render void the obligation contracted under that condition. Art. 2028. — Physical and moral impossibilities only are intended by the preceding articles : If the condition be only relatively impossible that is to say, impracticable by the obligor, only from the want of skill, strength or means, but practicable by anotlier, it is not an impossible condition. Art. 2029. — Every obligation is null that has been contracted on a potestative condition, on the part of him who binds himself Sec 2 A. 971 ; 5 A. 231; See 3»G0. Art. 2030. — The last preceding article is limited to potestative conditions, which make the obligation depend solely on the exercise of the obligor's will ; but if the condition be, tliat the obligor shall do or not do a certain act, although the doing or not doing of tlie act depends on the will of tlie obligor, yet the obligation depeiuliug on such condi- tion is not void. Art. 2031. — An obligation may also be made by consent of the parties, to depend on the will of the obligee for its duration. Thus a lease may be made during the will of the lessor, and a sale may be made conditioned to be void, if the vendor chooses to redeem the property Bold. Art. 2032. — Every condition must be performed in the manner that it is probable that the parties wished and intended that it should be. 3L. 502; 11 L. 374; 2 \. IGS. Art. 2033. — When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is con 278 OF CONVENTIONAL OBLIGATIONS. sidered as broken, when the time has expired without the event having taken place. If there be no time fixed, the condition may always be performed, and it is not considered as broken, until it is become certain that the event will not happen. 1 A.424; 3 A. 274. AuT. 2034. — When an obligation has been contracted, on condition that a particular event shall not happen within a certain space of time, that condition is fulfilled, when that time is elapsed without the event's having taken place : it is equally fulfilled, if, before the expiration of the time, it be certain that the event will not take place ; and if the time be not fixed, the condition is not complied with, until it be certain that the event will not happen. Art. 2035. — The condition is considered as fulfilled, when the ful- filment of it has been prevented by the party bound to perform it. 3 L. 501 ; 4 E. 45 ; See 7 N, S. 166 ; 19 L. 235 ; 6 R. 450. Art. 2036. — The condition being complied with, has a retrospective effect to the day that the engagement was contracted ; if the creditor dies before the accomplishment of the condition, his rights devolve on his heirs. Art. 2037. — The creditor may, before the fulfilment of the condi- tion, perform all acts conservatory of his rights. § 2. — Of tlie Suspensive Condition. Art. 2038. — The obligation contracted on a suspensive condition, is that which depends, either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties. In the former case, the obligation cannot be executed till after the event ; in the latter, the obligation has its effect from the day on which it was contracted, but it cannot be enforced until the event be known. Art. 2039. — When the obligation has been contracted on a suspen- sive condition, the thing which forms the subject of the contract is at the risk of the obligor, until the event which forms the condition has happened, subject, however, to the following restrictions and modifica- tions of his responsibility : If the thing be entirely destroyed, without the fault of the debtor, the obligation is extinguished ; If the thing be impaired, without the fault of the debtor, it is at the option of the creditor, either to dissolve the obligation, or to require the thing in the state in which it is, without diminution in the price ; If the thing be impaired, through the fault of the debtor, the creditor has a right to dissolve the obligation, or to require the thing in the state in which it is, with damages. § 3. — Of tlie Rfsolutory Condition. Art. 2040. — The dissolving condition is that which, when accom- plished, operates the revocation of the obligation, placing ma'^ters in the same state as though the obligation had not existed. It does not suspend the execution of the obligation ; it only obliges 279 OF CONVENTIONAL OBLIGATIONS. 279 the creditor to restore what he has received, in case the event provided for in the condition takes place. 19 L. 31 ; 10 K. 412; 2 A. 989; 6 A. 3. Art. 2041. — A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements: in this case the contract is not dissolved of right; the party complaining of a breach of the contract may cither sue for its dissolution, with damages, or, if the circumstances of tlie case permit, demand a specific performance. 15 L. T5 ; 8 K. 157 ; 10 R. 412 ; 11 R. 18 ; 6 A. 8. Art. 2042. — In all cases the dissolution of a contract may he de- manded by suit or by exception, and when tlie resolutory condition is an event not depending on the vnW of either party, the contract is dissolved of right, but, in other cases, it must be sued for ; and the party in de- fault may, according to circumstances, have a further time allowed for the performance of the condition. 8 L. 522 ; 13 L. 249 ; 9 R. 8T7 ; 12 R. 4T2 ; 6 A. 3 ; Sco T M. 218. Section IV. — Of Limited and Unlimited Obligations as to the Time of their Performance. Art. 2043. — The time given or limited for the performance of an obligation is called its term. Art. 2044. — A term may not only consist of a determinate lapse of time, but also of an event, provided that event be, in the course of na- ture, certain ; if it be uncertain, it forms a condition. Art. 2045. — "When no term is fixed by the parties for the perform- ance of the obligation, it may be executed immediately, unless from the nature of the act, a term, either certain or uncertain, must be applied. Thus, an obligation to pay money, without any stipulation for time, may be enforced at the will of the obligee. But a promise to make a crop of sugar is necessarily deferred, vmtil the uncertain period when the cane shall be fit to cut. Art. 2046. — The term differs from the condition, inasmuch as it does not suspend the engagement, but only retards its execution. Art. 2047. — What is due only at a certain time, cannot be demanded before the expiration of the intermediate time ; but what has been paid in advance, cannot be re-demanded. Art. 2048. — The term is always presumed to be stipulated in favor of the debtor, unless it result from the stipulation, or from circumstan- ces, that it was also agreed upon in favor of the creditor. Art. 2049. — Wherever there is a cessio)i of property, either volun- tary or forced, all debts due by the insolvent shall be deemed to be due, although contracted to be paid at a term not yet arrived ; but in such case, a discount must be made of the interest at the highest conventional rate, if none has been agreed by the contract. 1 L. 600 ; C L. 762 ; 8 L. 532 ; 10 R. 533. 280 OF CONVENTIONAL OBLIGATIONS. Art. 2050. — If a debt be contracted to be paid at a term, and secu- rity be given for the payment, if, from whatever cause, the security should fail, or be rendered insufficient, the creditor may, before the obli- gation is due, exact, either that good security be given, or that the debt be immediately paid. Art. 2051. — If the contract be to give good security, and a person be afterwards given as such security, who fails, the provision of the last preceding article takes effect ; but when security is given of a de- terminate person, then there is no action given on the failure of the security. Art. 2052. — Where a term is given or limited for the performance of an obligation, the obligor has until sunset of the last day limited for its performance, to comply with his obligation, unless the subject of the contract cannot be done after certain hours of that day. Art. 2053. — When the contract is to do the act in a certain num- ber of days, or in a certain number of days after the date of the con- tract, the day of contract is not included in the number of days to be counted, and the obligor has until sunset of the last day of the number enumerated, for the performance of his contract, with the exception con- tained in the last preceding article. 3 A. 527. Art. 2054. — Where the obligation is not to do a thing, without a notice of a certain number of days, or until after so many days, neither the day of the contract, nor tLe day of its performance, are calculated. Art. 2055. — Where the term, referred to by the contract, consists of one or more months, the parties, if they have not made any other ex- planation, shall be deemed to have meant months, in the order in which they stand in the calendar after the date of the obligation, and with the number of days such months respectively have. Art. 2056. — Where the term, refei-red to in the contract, consists of one or more years, the calendar year shall be presumed to have been intended. Section V. — Of Conjunctive and Alternative Obligations. Art. 2057. — When several different things form the subject of a contract, it is either conjunctive or alternative. Art. 2058. — A conjunctive obligation is one in which the several objects in it are connected by a copulative, or in any other manner which shows that all of them are severally comprised in the contract. This contract creates as many different obligations as there are different objects ; and the debtor, when he wishes to discharge himself, may force the creditor to receive them separately. Art. 2059. — But if several things be comprehended in one general name in the contract, it is not conjunctive. The sale of a flock of sheep, or the stock on a farm, are examples of this exception. 281 OF CONVENTIONAL CfBLIGATIONS. 281 Art. 2060. — Where a sum is promised to he paid at different in- stalments, a conjunctive obligation is created, and the payment may be severally paid or enforced. Rents, payable at fixed periods, come also under this rule. Art. 2061. — But where the things, which form the subject of the contract, are separated by a disjunctive, then the obligation is alterna- tive. A promise to deliver a certain thing, or to pay a specified sum of money, is an example of this kind of obligation. Art. 2062. — The debtor in an alternative obligation, is discharged by the delivery of one of the two things that were comprised in the ob- ligation. Art. 2063. — The option belongs to the debtor, unless it has been expressly granted to the creditor. Art. 2064. — The debtor may exonerate himself by delivering one of the two things promised, but he cannot force the creditor to receive a part of the one, and a part of the other. Art. 2065. — The obligation is pure and simple, although contracted in an alternative manner, if one of the two things promised could not be the subject of the obligation. Art. 2066. — The alternative obligation becomes pure and simple, if one of the things promised be destroyed, even through the fault of the debtor, and can no longer be delivered. The price of that thing cannot be offered in its stead. If both the things be destroyed, and the debtor be in fault with re- gard to one of them, he must pay the price of that one which was de stroyed the last. Art. 2067. — "When, in the cases provided for in the preceding arti- cle, the option was given by agreement to the creditor ; cither only one of the things is destroyed, and then, if it be without the fiault of the debtor, the creditor must have that one which remains ; if the debtor be in fault, the creditor may demand the thing that remains, or the price of that which is destroyed. Or both the things are destroyed, and then, if the debtor be in fauU with regard to both, or even with regard to one of thom alone, the ere ditor has his option to demand either of them. Art. 2068. — If both the things be destroyed, without tlie fault of the debtor, and before he lias delayed the delivery, the obligation bo comes extinct. Art. 2069. — The same principles apply to cases where there are more than two things comprised in the alternative obligation. Art. 2070. — -Where several alternative obligations are divided for their execution by different terms, there the election of one alternative for one of the terms, does not oblige the parties to make the same elec- tion for the others. Art. 2071. — If an obligation or testamentary disposition, be made to different obligees, or legatees, or heirs, in the alternative, such obli- gation shall be deemed to proceed from error in wording of the obliga- tion or will, and shall be construed conjunctively. « 282 OF CONVENTIONAL OBLIGATIONS. Section VI. — Of several Obligations, joint Obligations, and Ohliga tions in solido. § 1. — General Provisions. Akt. 2072. — "Where there are more than one obligor or obligee named in the same contract, the obligation it maj' produce may be either seve- ral or joint or in solido, both as regards the obligor and the obligee. See 12 E. 1S3. Art. 2073. — Several obligations are produced, -when what is pro- mised by one of the obligors is not promised by the other, but each one promises separately for himself to do a distinct act ; such obligations, although they may be contained in the same contract, are considered as much individual and distinct as if they had been in different contracts, and made at different times. 10 E. 14 ; 3 A. 1G2. Art. 2074. — In like manner, a contract may contain distinct obliga- tions to perform different things in fovor of several persons ; the obliga- tions in this case are several and unconnected, and each obligee has his separate and distinct remedy on the obligation created towards him indi- vidually. 12 R. 5G3. Art. 2075. — When several persons join in the same contract to do the same thing, it produces a joint obligation on the part of the obli- gors. 15 L. 154 ; 10 E. 14; 3 A. 162, 351. Art. 2076. — When one or more persons make an obligation to seve- ral persons for the performance of something for the common benefit of all the obligees, it creates an obligation which is joint in favor of the obligees. 12 E. 5C3. Art. 2077. — When several persons obligate themselves to tlic obli- gee by the terms in solido, or use any other expressions, which clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, it is called an obligation in solido on the part of the obligors. See 12 E. 1S3. Art. 2078. — In like manner, when the obligor contracts expressly, or by using the technical words in solido, that he will give to either one, or to all of several obligees the right of enforcing the obligation against him, it creates an obligation in solido in favor of the obligees. § 2. — Of the Hides which govern several Obligations, and joint OUigations. Art. 2079. — Several obligations, although created by one act, have no other effects than the same obligations would have had, if made by separate contracts ; therefore they are governed by the rules which ap- ply to all contracts in general. 283 OF CONVENTIONAL OBLIGATIONS. 283 Art. 2080. — In every suit on a joint contract, all the obligors must be made defendants, and no judgment can be obtained against any, un- less it be proved that all joined in the obligation, or are by law presumed -to have done so. 8 L. 437, 274 ; 8 L. 524 ; 11 L. 463 ; 13 L. 482 ; 14 L. 365; 16 L. 119 ; 5 R. 224; 6 R. 351 ; T E. 181 ; 10 R. 430; 6 A. 423; See 10 E. 425. Art. 2081. — In a suit on a joint obligation, judgment must be ren- dered against each defendant separately, for his proportion of the debt or damages, if the suit i-esolves itself into damages. If the suit be for a specific performance, each defendant may be compelled to execute his proportion of the obligation, if the nature of the case permit and justice require it. The proportion, meant by this and the succeeding articles, is calculated by the number of the obligors, each one answering for an equal part, unless the parties have expressed a different intention. 3 L. 438 ; 19 L. 8S5 ; See 5 L. 120 ; 12 R. 563 ; Sec 2 L. 419. Art. 2082. — If one of the obligors in a joint obligation has perform- ed or discharged his part of the obligation, although he must be joined in the suit, on account of the eventual interest he has for the repetition of his payment, if the contract be disproved or annulled ; yet, if tlie con- tract be affirmed, the defendant, who has paid his proportion or per- foi'ined his part, shall have judgment. The judgment for the costs is in solido against all the defendants who have not paid or performed their parts. 16 L. 119; 2 A. 5S9. § 3. — Of the Rules which govern Oiligations tetween Creditors in solido. Art. 2083. — The obligation is in solido, or joint and several between several creditors, when the title expressly gives to each of them the right of demanding payment of the total of what is due, and when the payment made to any one of them discharges the debtor, although the benefit of the obligation be to be shared and divided among the different creditors. Art. 2084. — It is at the option of the debtor to pay any one of the creditors in solido, as long as he has not been prevented by a suit insti- tuted by one of them. Yet if one of the creditors in solido remits the debt, the debtor is hereby exonerated only as to the part coming to that individual creditor. Art. 2085. — Every act, which interrupts prescription with regard to one of the creditors in solido, avails the other creditors. § 4. — Of the Rules which govern Ohligations with rc-ijicct to Debtors in solido. Art. 2086. — There is an obligation ^?^ solido on the part of the debtors, when tlicy are all obliged to the same thing, so tluit each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others towards the creditor. 4 L. 151 ; 2 A. 331 ; See 12 R. 188. 284 OF CONVENTIONAL OBLIGATIONS. Art. 2087. — The obligation may be i7i solido, although one of the debtors be obliged differently from the other to the payment of one and the same thing ; for instance, if the one be but conditionally bound, whilst the engagement of the other is pure and simple, or if the one is allowed a term which is not granted to the other. Sec 12 R. 183. Art. 2088. — An obligation in solido is not presumed ; it nrust be expressly stipulated. This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law. 12 M. 316; 5L. 123; 15L. 154, 5SS; 5R. 70; 8E. 149; 3 A. 5T4; 6 A. 53. Art. 2089. — The creditor of an obligation contracted in solido, may apply to any one of the debtors he pleases, without the debtor's having a right to plead the benefit of division. 2 A. 334, 830 ; See 3014. Art. 2090. — A suit brought against one of the debtors does not bar the creditor from bringing suits on the same account against the others. Art. 2091. — If the thing due has perished, through the fault of one or more debtors in solido, or while he or they delayed to deliver it, the other creditors are not discharged from the obligation of paying the value of tlie thing, but the latter are not liable for damages. The creditor can claim damages only from the debtors by whose fault the thing was lost, and from those who delayed to deliver it. Art. 2092. — A suit brought against one of the debtors in solido^ interrupts prescription with regard to all. 2 A. 916, 970 ; 5 A. 551 ; See 12 K. 243 ; See 8517. Art. 2093. — A demand of interest made of one of the debtors in solido, makes interest run with respect to all. Art. 2094. — A co-debtor in solido, being sued by the creditor, may plead all the exceptions resulting from the nature of the obligation, and all such as are personal to himself, as well as such as are common to all the creditors. He cannot plead such exceptions as are merely personal to some of the other co-debtors. Art. 2095. — When one of the debtors becomes sole heir of the creditor, or when the creditor becomes sole heir of one of the debtors, the confusion extinguishes the debt in solido only for the part and por- tion of the debtor or of the creditor. Art. 2096. — The creditor, who consents to the division of the debt with regard to one of the co-debtors, still has an action in solido against the others, but under the deduction of the part of the debtor whom he has discharged from the debt in solido. Art. 2O97. — The creditor, who receives separately the part of one of the debtors, without reserving in the receipt the debt in solido or his right in general, renounces the debt in solido, only with regard to that debtor. The creditor is not deemed to remit the debt in solido to the debtor, when he receives from him a sum equal to the portion due by him, unless the receipt specifies that it is for his part. 285 OF CONl'ENTIONAL OBLIGATIONS. 285 Tho same is to be observed of tlic mere demand made of one of the co-debtors, for his part, if the hitter has not acquiesced in the demand, or if a jifSgmeut has not been given against him. Art. 2098. — The creditor, who receives separately and without reservation the portion of one of the co-debtors in the arrearages or interest of the debt, loses his claim in soliclo only as to the arrearages and interest due, and not as to those that may in future become due, nor as to the capital, unless the separate payment has been continued during ten successive years. Art. 2099. — The obligation contracted in solido towards the creditor, is of riglit divided amongst the debtors, who, among themselves, are liable each only for his part and portion. 12 E. 1S3. Art. 2100. — If one of the co-debtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each. If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent co-debtors and him who has made the payment. Art. 2101. — In case the creditor has renounced his action in solido against one of the debtors, and one or more of the other co-debtors become insolvent, the portion of the insolvent shall be made up, by equal contribution, by all the debtors, and even those precedently dis- charged from the debt by the creditor in solido^ shall contribute their part. SeeSL. 351. Art. 2102. — If the affair, for which the debt has been contracted in solido, concern only one of the co-obligees in solido, that one is liable for the whole debt towards the other co-debtors, who, with regard to him, are considered only as his securities. Art. 2103. — There are many contracts in which the obligation is declared by law to be in solido, without any express stipulation to that effect ; these will be found in the different chapters which treat of such aontracts. Section VII. — Gf Obligations Divisible and Indivisible. Art. 2104. — An obligation is divisible or indivisible, according as it has for its object, either a thing which, in its delivery, or a fact which, in its execution, is or is not susceptible of division, whether material or intellectual. Art. 2105. — The obligation is indivisible, though the thing or the fact which is the object of it, be by its nature divisible, if tlie light, in which it is considered in the obligation, does not admit of its being partially executed. Art. 2106. — The stipulation in solido does not give to the obliga- tion the character of indivisibility. 286 OF CONVENTIONAL OBLIGATIONS. § 1. — Of the Effects of Divisible Ohligation. Art. 2107. — An obligation susceptible of division must bo^executed between the creditor and the debtor, as though it were iudivisiDlc. The divisibility is applicable only with regard to their heirs, who can demand of the debt, or who are liable to pay of it, only the part which they hold, or for which they are liable as representing the creditor or the debtor. 6 L. 18; 8 L. 536 ; 3 R. 4-32 ; See 5 N. S. 194; 7 N. S. 519 ; 10 R. 2o ; Sec 2149, 2612, 2624. Art. 2108. — To the principle laid down in the preceding article, there is an exception with regard to the heirs of the debtor ; 1. In case the debt be on a mortgage ; 2. When it is of a determinate object; 3. When the debt is alternative of things at the option of the credi- tor, one of which is indivisible ; 4. When one of the heirs is alone charged, by the title, with the execution of the obligation ; 5. When it results, either from the nature of the engagement, or from the thing which is its object, or from the end proposed b}' the con- tract, that it was the intention of the parties that the debt should not be partially discharged. In the three former cases, the heir who is in possession of the thing due, or of the property mortgaged for the debt, may be sued for the whole on the thing due, or on the property mortgaged, but he has re- course against the co-heirs. In the fourth case, the heir is alone charged with the debt ; and in the fifth case, every one of the heirs may also be sued for the whole ; but the one su.ed has his recourse against the co-heirs. § 2. — Of the Effect of the Indieisihle OUigation. Art. 2109. — Every one of those who have conjointly contracted an indivisible debt, is liable for the whole, even though the obligation was not contracted in solido. Art. 21 10. — The case is the same with regard to the heirs of hira who has contracted such an obligation. Art. 2111. — Every heir of the creditor may require the execution of the indivisible obligation. He cannot alone remit the whole of the debt ; he cannot alone re- ceive the price instead of the thing. If one of the heirs has alone re- mitted the debt, or received the price of the thing, his co-heir cannot demand the indivisible thing without making allowance for the portion of the co-heir who has remitted the debt or has received the price. Art. 2112. — The heir of the debtor, being sued for the whole of the obligation, may ask for a delay to make his co-heirs parties to the suit, unless the debt be of such a nature that it can be discharged only by the heir sued, against whom, in that case, judgment may be given, he having recourse for indemnification against his co-heirs. Section VIII. — Of Obligations ^oith Penal Clauses. Art. 2113. — A penal clause is a secondary obligation, entered intc for the purpose of enforcing the performance of a primary obligation. 7 L. 192. 287 OF CONVENTIONAL OBLIGATIONS. 287 Art. 2114. — A penal obligation necessarily supposes two distinct contracts, one to do or to give that which is the principal object of the contract, the other to give or do something, if the principal object of the agreement be not carried into effect. Art. 21 1-5. — The penal clause has this in common with a conditional obligation, that the penalty is due only on condition that the first part of the contract be not performed. But it differs from it in this, that in penal contracts thei-c must be always a principal obligation, independent of the penalty, while in conditional contracts, there is no obligation, un- less the condition happens. Art. 21 16. — The penalty being stipulated merely to enforce the per- formance of the principal obligation, it is not incurred, although the principal obligation be not performed, if there be a lawful excuse for its non-performance, such as inevitable accident, or irresistible force. Seo 3 L. SOS. Art. 2117. — But if the form of the contract be changed, and only one obligation entered into subject to a condition, then the obligor takes all risks upon himself, and the penalty becomes the principal obligation, and may be recovered, if the condition be not performed, although there may have been inevitable accidents to prevent it. Art. 2118. — The cases provided for by the two last preceding arti- cles, may always be modified, like all other obligations, by express sti- pulations. A contract to build a house by a certain day, and if it is not built, to pay one thousand dollars, is an example of a penal obligation, in which the obligor would be excused from paying the penalty, if inev- itable accident had prevented him from building. A contract to pay one thousand dollars, if the building be not finished at a stipulated time, is a conditional obligation, and gives a right to the penalty', if, from whatever cause, the condition be not performed. Soc 3 L. 80S. Art. 21 19. — The nullity of the principal obligation involves that of the penal clause. The nullity of the latter does not involve that of the principal obli- gation. G R. 450. Art. 2120. — The creditor, instead of exacting the penalty stipulated from the debtor who is in default, may sue for the execution of the prin- cipal obligation. Art. 2121. — The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obliga- tion. He cannot demand tlie principal and the penalty together, unless the latter be stipulated for the mere delay. 7L.188. Art. 2122. — Whether the principal obligation contain, or do not contain a term in which it is to be fulfilled, the penalty is forfeited, only when he who has obligated him.self either to deliver, to take, or to do, is in delay. 6 N. S. 624 ; 6 R. ^'iO ; 10 R. 52-1 ; 3 A. 444 ; See 9 R. 535. Art. 2123. — The penalty may be modified by the judge, when the 288 OF CONVENTIONAL OBLIGATIONS. principal obligation has been partly executed, except in case of a contrary agreement. C L. 721. Art. 2124. — When the primitive obligation, contracted with a penal clause, is of an indivisible thing, the penalty is forfeited by the default of any one of the heirs of the debtor, and it may be exacted, either wholly against him who has been in default, or against every one of the co-heirs for his part and portion, and in case of mortgage for the whole, they having their remedy against him by whose default the penalty was forfeited. Art. 2125. — When the primitive obligation contracted under a pen- alty, is divisible, the penalty is incurred only by that one of tlie debtor's heirs who contravened the obligation, and only for tlie part for which he was liable in the principal obligation, no action lying against those who have executed it. This rule has an exception, when the penal clause having been added in the intention that the payment should not be made partially, a co-heir has prevented the execution of the obligation for the whole. In that case the entire penalty may be exacted of him, and against the other co-heirs only for their part, but the latter have their recourse against the former. CHAPTER V. OF THE MANNER IN WHICH OBLIGATIONS MAY BE EXTINGUISHED. Art. 2126. — Obligations are extinguished: By payment ; 9 L. 11. By novation ; By voluntary remission ; 4L.861. By compensation ; By confusion ; By the loss of the thing ; By nullity or rescission ; By the effect of the dissolving condition, which has been explained in the preceding chapter ; By prescription, which shall be treated, of in a subsequent title. Section I. — Of Payment. Art. 2127. — By payment is meant, not only the delivery of a sum of money, when such is the obligation of the contract, but the perform- ance of that which the parties respectively undertook, whether it be to give or to do. Art. 2128. — He who is bound to do, or not to do, or to give, is in- differently called the obligor, or the debtor ; and he to whom the obli- gation is made, is in like manner without distinction called the obligee or the creditor. 289 OF CONVENTIONAL OBLIGATIONS. 289 § 1. — Of Payment or Performance in general. Art. 2129. — Every payment presupposes a debt; what Las been paid ■without having been due, is subject to be rechumcd. That cannot be reclaimed that has been voluntarily given in dischargw of a natural obligation. , 11 E. 502. Art. 2130. — An obligation may be discharged by any person con- cerned in it, such as a co-obligee or a security. The obligation may even be discharged by a third person no way concerned in it, provided that person act in the name and for the dis- charge of the debtor, or that, if he act in his own name, he be not sub rogated to the rights of the creditor. 3 L. 4T9 ; 5 A. 48. Art. 2131. — A third person may, for the advantage of the obligor, put the obligee in deftxult, by ofifcring to perform the obligation on the part of the debtor, even without his knowledge ; but it must be for the advantage of the debtor, not merely to change the creditor. Art. 2132. — The obligation of doing cannot be discharged by a third person against the will of the creditor, when it is the interest of the lat- ter that it be fulfilled by the debtor himself. Art. 2133. — But where the act to be done may as well be performed by the third person who offers to do it, as by the obligor, then it may be discharged by him, or the creditor may be put in default by his offer to perform it, always under the condition that some advantage may result to the debtor, or that the offer may be made at his request. Art. 2134. — If the debtor give a thing in payment of his obliga- tion, which he has no right to deliver, it does not discharge his obliga- tion, and the owner of the thing given may reclaim it in the hands of the creditor, unless it be discharged by the payment of money, or the de- livery of some of those things which are consumed in the use, and the creditor has used them, in which cases neither the money nor the things consumed can be reclaimed, and the payment will be good. See 10 R. 4S1. Art. 2135. — If money, or other stolen property, be given in pay- ment, the payment is not good, and the owner may recover the amount paid. Art. 2136. — The payment must be made to the creditor, or to some person having a power from him to receive it, or authorized by a court, or by law to receive it from him. Payment made to a person not having power to receive it for the cre- ditor is valid, if the creditor has ratified it, or has profited by it. See HE. 270. Art. 2137. — If the power be revoked, either expressly or by the deatli of the creditor, payment to the bearer of the power will discharge the debtor, provided he were ignorant of the revocation. Art. 2138. — A power to receive payment is revoked, as well by such 19 290 OF CONVENTIONAL OBLIGATIONS. chan^'e in the state of the creditor as renders him incapable himself of legally receiving, as by his death or express revocation ; if he should be- come interdicted, or (if a woman), she should be married, the powers given before these changes took place, are void. Art. 2139. — A payment made to an attorney at law, employed to sue for the payment, will discharge the debtor, although the attorney be not specially empowered to receive the debt. 18 L. 430; Sec2N. S. 292; 4N. S. 145; 7N. S. a4; 8 N. S. 284. Art. 2140. — If the authority of him who gave the power ceases, the power is revoked. Thus a power given by a curator, an executor, or a tutor, is no longer valid, after they cease to exercise their trust. Art. 2141. — Payments in general can legally be made only to the creditor, or some one empowered by him. The debtor however, is dis- charged by a pa3'ment made in good faith to one who is really not the creditor, and is not empowered by him in tlie following cases : 1. When the debt is due on an instrument in writing, payable to the bearer, or payable to order, and indorsed, or if not payable to the bearer, if it be assigned in blank, or to bearer, and the payment is made to one in possession of the original evidence of the debt ; 2. AVheu the person to whom the payment has been made, was at the time in possession of the evidence of the debt, under an order of a com- petent court, as syndic or trustee of creditors, as curator, executor, heir, or by virtue of any office or other trust, that apparently gives him the power to receive the payment. 3. When the debt accrues for rents or other incidents of the admi- nistration of real property, or for the sale or expenses relative to per- sonal property, of which the person is in possession by virtue of any of the titles mentioned in the last preceding rule, or where he has been Id the uninterrupted possession of such real property for more than one year under any other title. See 17 L. 236 ; T N. 3. 253 ; 4 L. 383. Art. 2142. — A special power to sell includes a power to receive the price, unless the contrary appear from the power, or unless the power be only to sell on a credit, in which case the attorney has no right to receive the price. Sec 2139. Art. 2143. — Payment made to the creditor is not valid, if he is one of those whom the law has placed under an incapacity to receive it, un- less the debtor prove that the payment was applied to some object of utility for the creditor ; it is not sufficient if it was applied merely to contribute to his pleasure. Art. 2144. — But if the incapacity to receive arose from the priva- tion of civil rights by the effect of a sentence, then the payment is not good, although the payment were applied to the utility of the creditor See 17 L. 23G. 291 OF CONVENTIONAL OBLIGATIONS. 29 1 Art. 2145. — Payment made by a debtor to liis creditor, to the pre- judice of a seizure or au attacliunmt, is not valid with regard to the creditors seizing or attaching ; those may, according to their chiims, oblige him to pay anew, and he has in that case alone recourse against the creditor. 6 A. 445. Art. 214G. — The creditor cannot be constrained to receive any other thing than that which is due, although the value of the thing tendered be equal, or even greater. Art. 2147. — But if the thing agreed to be delivered, be a specific object, and it be destroyed before the time agreed for its delivery, the debtor may be forced to give, and the creditor to receive, the value of this thing in money. Art. 2148. — In the case provided for in the last preceding article, and in all other cases where the value of the thing to be delivered enters into the measure of damages, its price, or that sum for which others of the like quality could have been purchased at the time agreed on for the delivery, is to be the rule for calculating the value ; or, if no time was stipulated, then the price, at the time of the demand, must be re- ferred to. Art. 2149. — The debtor cannot oblige the creditor to receive in part the payment of a debt, even divisible. 7 N. S. 519 ; S L. 53G ; 3 R. 4.32 ; 10 R. 25 ; See 5 N. S. 194 ; See 210", 2612, 2024. Art. 2150. — But if the sum due consists of several different debts, or of rents fiilling due at different times, the debtor may force the cre- ditor to receive the payment of one of the debts, or of a single term of the rent ; but a creditor is not obliged to receive the rent of a later term, when there is a former due. Art. 2151. — The debtor of a certain and determinate matter is dis- charged by the delivery of the thing in the state in which it is at the time of delivery, provided that previously to the deterioration, he was not chargeable with delay. Art. 2152. — If the debt be of a thing which is determined only by its species, the debtor, in order to his discharge, is not bound to deliver it of the best kind, but he cannot tender it of the worst. Art. 2153. — The payment must be made in the place specified in the agreement. If the place be not thus specified, the payment, in case of a certain and determinate substance, must be made in the place where was, at the time of the agreement, the thing which is the object of it. These two cases excepted, the payment must be made at the dwelling of the debtor. 3L.97. Art. 2154. — The expenses attending the payment arc at the charge of the debtor. § 2. — Of Payment with Subrogation. Art. 2155. — Subrogation to the right of a creditor in favor of a third person who pays him, is either conventional or legal. Art. 2 1 56. — The subrogation is conventional : 292 * OF CONVENTIONAL OBLIGATIONS. 1. When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor ; this subrogation must be expressed, and made at the same time as the payment : See IT L. 161. 2. When the debtor borrows a sum for the purpose of paying his debts, and intending to subrogate the lender in the rights of the credit- or. To make this subrogation valid, it is necessary that the act of bor- rowing and the receipt be executed in presence of a notary and two wit- nesses ; that, in the act of borrowing, it be declared that the sum was borrowed to make the payment, and that in the receipt it be declared that the payment has been with the money furnished for that purpose by the new creditor. That subrogation takes, place independently of the will of the creditor. 11 L. Sai ; 13 L. 290, 3S0 ; 15 L. 3S5 ; 19 L. 2:35 ; 11 E. 270, 346 ; 9 R. 405, 414. Art. 2157. — Subrogation takes place of right : 1. For the benefit of him who, being himself a creditor, pays another creditor, whose claim is preferable to his, by reason of his privileges or mortgages : 6E. 82S: 2 A. 4S0. 2. For the benefit of the purchaser of any immovable property, who employs the price of his purchase in paying the creditors to whom the hereditament was mortgaged ; 15L.3S9; See 2586. 3. For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it ; 11 L. 52 ; 15 L. 214, 351 ; 6 E. 328 ; 3 A. 66 ; See 3 L. 479 ; IT L. 161. 4. For the benefit of the beneficiary heir, who has paid with his own funds the debts of the succession. Art. 2158. — The subi'ogation established by the preceding articles, takes place as well against the securities, as against the debtors. It cannot injure the creditor, since, if he has been paid but in part, he may exercise his right for what remains due, in preference to him from whom he has received only a partial payment. § 3. — Of the Imputation of Payments. Art. 2159. — The debtor of several debts has a right to declare, when he makes a payment, what debt he means to dischai'go. Art. 2160. — The debtor of a debt which bears interest or produces rents, cannot, without the consent of the creditor, impute to the reduc- tion of the capital any payment he may make, when there is interest or rent due. 10 E. 51 ; 2 A. S63, 520. Art. 2161. — When the debtor of several debts has accepted a re- ceipt, by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to be made to a different debt, unless there have been fraud or surprise on the part of the creditor. 5 A. 569 ; See 7 N. S. 229. Art. 2162. — When the receipt bears no imputation, the payment 293 OF CONVENTIONAL OBLIGATIONS. ZDc must be imputed to the debt, which the debtor had at the time most in- terest in discharging, of those that ai-e equally due, otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable. If the debts be of a like nature, the imputation is made to the less burdensome ; if all things are equal, it is made proportionally. 10 L. 232; 12 L. 1 ; 2 A. 3C3; 3 A. 351 ; 5 A. 509; See 10 L. 352. § 4. — Of Tenders of Payment and Consignment. Art. 2163. — When the creditor refuses to receive his payment, the debtor may make him a real tender, aiul on the creditor's refusal to ac- cept it, he may consign the thing or the sum tendered. A real tender, followed by a consignment, exonerates the debtor ; it has the same effect, with regard to him, as a payment, when it is validly made ; and the tiling thus consigned remains at the risk of the creditor. 6 A. 13; See 4 L. 04. Akt. 2164. — To make a real tender valid, it is necessary: 1. That it be made to the creditor having capacity to receive it : 2. That it be made by a person capable of paying ; 3. That it be for the whole of the sum demanded, of the arrearages or interest due, for the liquidated costs, and for a sum towards the costs not liquidated, the deficit of which sum is hereafter to be made up ; 4. That the term be expired, if it has been stipulated in favor of the creditor ; 5. That the condition, on which the debt has been contracted, be ful- filled; 6. That the tender be made in the place agreed upon for the payment, or that, if there be no special agreement as to tlie place of payment, it be made either to the creditor himself, or at his dwelling, or at the house chosen for the execution of the agreement. Art. 2165. — The mode in which a tender and consignment must be made, is pointed out in the laws regulating the practice of the courts. § 5. — Of the Cession of rvoperty. Art. 2166. — The surrender of property is the relinquishment that a debtor makes of all his property to his creditors, when he finds himself unable to pay his debts. See 9 R. 372. Art. 2167. — The surrender of property is voluntary or forced. Art. 2168. — The voluntary surrender of property is that which is made at the desire of the debtor himself. The forced surrender is that which is ordered at the instance of the creditors of the debtor, or some of them, in cases provided for by law. Art. 2169. — Both those kinds of surrender are subject to formalities, which arc prescribed by special laws. Art. 2170. — The voluntary surrender is a benefit, which the law grants to the honest but unfortunate debtor, by which he is permitted to 294 OF CONVENTIOXAL OBLIGATIONS. secure the liberty of his person by surrendering in a judicial manner, all bis property to his creditors, any stipulation to the contrary notwith- standintj. Ai:t. 2171. — The surrender docs not give the property to the cred- itors : it only gives them the right of selling it for their benefit, and re- ceiving tlie income of it, till sold. Stat. 29th 3Iarch, 1 826, p. 1 36. — ^ 2. From and after such cession and acceptance all the property of such insolvent debtor mentioned in said scliedule shall be fully vested in his creditors, and shall not be liable to be seized, attached, taken or levied on, by virtue of any writ of seizure, attachment, or execution, issued against the property of tlie said insol- vent debtor, and the syndic or syndics -who may be appointed by the creditors shall take possession of, and be entitled to claim and recover all the said property, and to administer and sell the same, as is provided by the act to which this is a supplement. Provided /ioivcvcr, that noth- ing in this act contained, shall be so construed as to prevent an insolvent debtor, at any time before the homologation, or the deliberation of the creditors, appointing syndics and fixing the manner of disposing of the property surrendered, from revoking the said cession, and taking back all his said property surrendered, all which he shall be authorized to do on his depositing in court a sum of money sufficient to cover all the debts due by him according to his said schedule, together with all the costs until then made and incurred : and provided also, that if, after all the creditors shall have been paid out of the property ceded as aforesaid, thei*e remain a balance in the hands of the syndics, the said debtor shall be entitled to recover and receive from the said syndics the said balance. 2 L. .864. Art. 2172. — The creditors cannot refuse the surrender made accord- ing to the forms ordained by law, unless in case of fraud on the part of the debtor. It operates the discharge of the restraint of the debtor's person, and delivers him from actual imprisonment. It also suspends all kinds of judicial process against the debtor. 2 L. 503 ; See 11 L. C5. Art. 2173. — A cession of property discharges all the debts, which the debtor placed on his bilan, including tho.^e arising from off"ences and quasi-oflFences, provided a majority of his creditors in number, and who are also creditors for more than the half of the whole sum due by him, agree to such discharge. But if such consent be not obtained, any one of his creditors may afterwards force a new cession, on showing that the debtor has acquired property over and above what is necessary for his maintenance. But on such new cession, the creditors, who have become such since the first cession, must be paid in preference to the others. 10 K. 48 ; 11 r. 1G6 ; 8 A. 501 ; See 1 L. 174; 4 L. 44. Art. 2174. — As the debtor preserves his ownership of the property surrendered, lie may divest the creditors of their possession of the same, at any time before they have sold it, by paying the amount of his debts, with the expenses attending the cession. Seo 2171 and amendment 295 OF CONVENTIONAL OBLIGATIONS. '^5 Art. 2175. — Any surplus, that may "be in the hands of the creditors, or their syndics, or other agents, after paying the debts and expenses, must be paid over to the debtor. Art. 217G. — The property surrendered forms a part of the succes- sion of the debtor, if he should die before the sale ; but the creditors are entitled to retain the possession and to sell, in the same manner as they were before the death of the debtor. 9 R. 219. Art. 2177. — The creditors of tliose, in whose favor a cession or sur- render of property has been made, even when they have a general mort- gage, cannot enforce it against the property surrendered ; but they may seize the credits against the ceded estate on execution, and in cases where such proceeding is allowed, may attach them. Art. 2178. — The creditors can never prescribe by any lapse of time, so as to gain a property in the estate ceded. Art. 2179. — The debtor is not obliged to comprehend in his surren- der any property that is not subject to be seized and sold on execution against him, but, with this exception, all his property must be surren- dered. Art. 2180. — All 8ales of property ceded to creditors must be made on the same teimis and under the same formalities that property seized on execution is sold ; but the sale is made by the syndics, or some per- son appointed by them, at public auction. t^tat. 29th March, 182G, p. 136. — ^ 3. The property ceded, excepting incorporeal rights, shall be sold by public auction, at such times and places, and upon such terms and conditions, as may be determined by the creditors, according to the provisions of the act to which this is a supplement : and that incorporeal rights, actions and credits may also be sold by public auction, by virtue only of an order of the court, before which the proceedings are depending, to be made upon the petition of the syndics, setting forth the reasons which may render such mode of disposition advisable. 7N.S.1S3; 3 A. 826. Section II. — Of Novation. Art. 2181. — Novation is a contract, consisting of two stipulations, one to extinguish an existing obligation, the other to substitute a new one in its place. Art. 2182. — To constitute a novation, there must be, at the time it is made, a valid obligation on which it can operate, if the first obligation, whidi it is intended to replace by the new one, be void, or, if tliere be no such obligation, then the new obligation is of no effect. Art. 2183. — The pre-cxistent obligation must be extinguished, oth- erwise there is no novation ; if it be only modified in some parts, and any stipulation of the original obligation be suflfered to remain, it is no novation. Seo 1 n mi. Ar r. 2 1 84. — All kinds of legal obligations are subject to novation. 296 OF CONVEXTIOXAL OBLIGATIONS. Art, 2185. — Novation takes place in three ways: 1 . When a debtor contracts a new debt to his creditor, which new debt is substituted to the old one, which is extinguished ; 1 A. 410. 2. "When a new debtor is substituted to the old one, who is dischargeti by the creditor : 16 L. 476. 3. When by the eflPect of a new engagement, a new creditor is sub stituted to the old one, with regard to whom the debtor is discharged. Art. 2186. — Novation can be made only by persons capable of con- tracting ; it is not presumed ; the intention to make it must clearly re- sult from the terms of the agreement, or by a full discharge of the ori- ginal debt. 3N. S. 145; 7N. S. 177; 4L. 477; HE. 9; 2 A. 1S8. Art. 2187. — Novation by the svibstitution of anew debtor, may take place without the concurrence of the former debtor. Art. 2188. — The delegation, by which a debtor gives to the creditor another debtor who obliges himself towards such creditor, does not ope- rate a novation, unless the creditor has expressly declared that he in- tends to discharge his debtor who has made the delegation. 9 L. 216, 223 ; 16 L. 476 ; 1 R. 301 ; 11 R. 511 ; 4 A. 509. Art. 2189. — The creditor, who has discharged the debtor by whom a delegation has been made, has no recourse against the debtor, if the person delegated becomes insolvent, unless that act contains an express reservation to that purpose, or unless the delegated person was in a state of open failure or insolvency at the time of the delegation. 1 E. 801. Art. 2190. — The mere indication made by a debtor of a person who is to pay in his place, does not operate a novation. The same is to be observed of the mere indication made by the cre- ditor of a person who is to receive for him. 16 L. 476; 11 E. 511. Art. 2191. — The privileges and mortgages of the former credit are not transferred to that which is substituted to it, unless the creditor has expressly reserved them. Art. 2192. — When novation takes place by the substitution of anew debtor, the original privileges and mortgages of the creditor cannot be transferred on the property of the new debtor. Art. 2193. — AVhen novation talces place between the creditor and one of the debtors i?i soHdo, the privileges and mortgages of the former credit can be reserved only on the property of him who contracts the new debt. Art. 2194. — By the novation made between the creditor and one of the debtors iti solido, the co-debtors are discharged. The novation that takes place with regard to the principal debtor, discharges the securities. Nevertheless, if the creditor has' required, in the first case, the ac- cession of the co-debtors, or in the second, that of the securities, the for- 297 OF CONVENTIONAL OBLIGATIONS. 297 mer credit subsists, if the co-debtors or the securities refuse to accede to the new arrangement. 10 E. 2S1, 421 ; Sco 3032. Section III. — Of the Remission of the Debt. Art. 2195. — The remission of the debt is cither conventional, when it is expressly granted to the debtor by a creditor having a capacity to alienate ; Or tacit, when the creditor voluntarily surrenders to his debtor the original title under private signature constituting the obligation. 4 L. 359 ; 1 A. 192. Art. 2196. — The surrender of the original title under private signa- ture to one of the debtors in solido, forms a presumption of the remission of the debt, or of its payment, in favor of his co-debtors ; but proof may be adduced to the contrary. Art. 2197. — The release or remission of a debt is presumed always to have been accepted by the debtor, and it cannot be revoked by the creditor. Art. 2198. — The delivery to the debtor of the authenticated copy of a notarial act, by which the obligation is created, does not alone form a presumption of the release of the debt, but it may, when accompanied by other proof, form such presumption. Art. 2199. — The remission or conventional discharge in favor of one of the co-debtors in soHdo, discharges all the others, unless the creditor has expressly reserved his right against the latter. In the latter case, he cannot claim the debt without making a deduc- tion of the part of him to whom he has made the remission. 2 A. ISG. Art. 2200. — The remission of the thing, given as a pledge, does not suffice to raise a presumption of the remission of the debt. IS L. 414. Art. 2201. — The remission or even conventional discharge granted to a principal debtor, discharges the securities. That granted to the securities does not discharge the principal debtor ; That granted to one of the securities does not discharge the others. Art. 2202. — What the creditor has received from one of the securi- ties, in discharge of his suretyship, must be imputed to the debt, and goes towards the discharge of the principal debtor and the other secu- rities. Section IV. — Of Cojnpensation. Art. 2203. — When two persons are indebted to each other, there takes place between them a compensation that extinguishes both the debts, in the manner and cases hereafter expressed. 3 A. 47 ; 4 A. 157. Art. 2204. — Compensation takes place of course by the mere opera- tion of law, even unknown to the debtors ; the two debts are reciprocally 298 OF CONVENTIONAL OBLIGATIONS. extinguished, as soon as they exist simultaneously, to the amount of their respective sums. SL.158; 10 K. 196; 12 E. 398. Art. 2205. — Compensation takes place only between two debts, hav- ing equally for their object, a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liqui- dated and demandable. 3L. 511; 8L 153; lOE. 45; 12 E. 393; 2 A. 546; 8 ^V. 61T; 5 A 160,551. Art. 2206. — The days of grace are no obstacle to the compensation. Art. 2207. — Compensation takes place, whatever be the causes of either of the debts, except in case : 1. Of a demand of restitution of a thing of which the owner has been unjustly deprived ; 2. Of a demand of restitution of a deposit and of a loan for use ; 3. Of a debt which has for its cause, aliments declared not liable to seizure. 8 L. 511 ; 2 A. 24; 3 A. 514 ; 6 A. 46. 210. Art. 2208. — The surety may oj^pose the compensation of what tho creditor owes to the principal debtor. But the principal debtor cannot oppose the compensation of what the creditor owes to the surety. Neither can the debtor in solido oppose the compensation of what the creditor owes to his co-debtor. Art. 2209. — The debtor, who has accepted purely and simply the transfer which a creditor has made of his rights to a third person, can no longer oppose to the latter the compensation which, before the accept- ance, he might have opposed to the former. As to the transfer which has not been accepted by the debtor, but which has been notified to him, it hinders only the compensation of credits posterior to that notification. Art. 2210. — When the two debts are not payable both at one and the same place, the compensation of them cannot be opposed, without allowing for the expense of the remittance. Art. 2211. — When there are several compensable debts, due by the same person, the same rules are observed for the compensation, as are established for imputation in article 21G2. Art. 2212. — Compensation cannot take place to the prejudice of the rights acquired by a third person ; therefore, he, who being a debtor, is become creditor since the attachment made by a third person in his hands, cannot, in prejudice to the person seizing, oppose compensation. Art. 2213. — He who has paid a debt which was of right extin- guished by compensation, can no longer, in exercising the credit which he has not oifered in compensation, avail himself, to the prejudice of a third person, of the privileges and mortgages that were attached to it, unless he had a just cause to be ignorant of the credit which was to compensate his debt. 299 OF CONVENTIONAL OBLIGATIONS. 299 Section V. — Of Co)ifusion. Art. 2214. — When the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the two credits. 3 L. 552 ; Sec 4 K. 416 ; See 8252, 8374. •Art. 2215. — The confusion that takes place in the person of the principal debtor, avails his sureties. That which takes place in the person of the surety, does not operate the extinction of the principal obligation. That which takes place in the person of the creditor, avails his co- debtors in solido, only for the portion in which he was debtor. 3 L. 552. Section VI. — 0/ the Loss of the Thi?ig Due. Art. 2216. — When the certain and determinate substance, which was the object of obligation, is destroyed, is rendered unsalable, or is lost, so that it is absolutely not known to exist, the obligation is extin- guished, if the thing has been destroyed or lost, without the fault of the debtor, and before he was in delay. Even when the debtor is in delay, if he has not taken upon himself fortuitous accidents, the obligation is extinguished, in case the thing might have equally been destroyed in the possession of the creditor, if it had been delivered to him. • The deJ^tor is bound to prove the fortuitous accidents he alleges. In whatever manner a thing stolen may have been destroyed or lost, its loss does not discharge the j^crson, who carried it off, from the obli- gation of restoring its value. Art. 2217. — When the thing is destroyed, rendered unsalable, or lost, without the fault of the debtor, he is bound, if he has any claim or action for indemnification, on account of that thing, to make over the same to the creditor. Section VII. — Of the Action of Nullity or 'of Rescission of Agree- ments. Art. 2218. — In all cases, in which the action of nullity or of rescis- sion of an agreement, is not limited to a shorter period by a particular law, that action may be brought within ten years. That time commences in case of violence, only from the day on whicli the violence has ceased ; in case of error or deception, from the day on which either was discovered ; and for acts executed by married women not authorized, from the day of the dissolution of the marriage or of the separation. With regard to acts executed by persons under interdiction, the time commences only from the day that the interdiction is taken off; and with regard to acts executed by minors, only from the day on which they become of age. 7 R. 38T; 2 A. 443; 8 A. 533; 8e« 4 L. 868^ 6 L. 161, 606: Sec 860r. 300 OF CONVENTIONAL OBLIGATIONS. Art. 2219. — A simple lesion gives occasion to rescission, in favor of a minor not emancii^ated, against all sorts of engagements ; and in favor of a minor emancipated, against all engagements exceeding the hounds of his capacity, as is laid down under the title of 'minors, and of their tutorship, &c. Art. 2220. — A minor is not restituable (cannot be relieved against his engagements) on the plea of lesion, when it proceeds only from a casual and unforeseen event. Art. 2221. — The mere, declaration of majority made by a minor, is no obstacle to his restitution. Art. 2222. — A minor, carrying on commerce, or being an artisan, is not restituable against the engagements into which he has entered in the way of his business or art. 15L. U; 2R. 513; 2 A. 39S. Art. 2223. — A minor is not restituable against the engagements stipulated in his marriage contract, if they were entered into with the consent or in the presence of those whose consent is requisite for the validity of his marriage. Art. 2224. — He is not restituable against the obligations resulting from his offences or quasi offences. Art. 2225. — He cannot make void the engagement which he had subscribed in his minority, when once he has ratified it in his majority, whether that engagement was null in its form, or whether it was only subject to restitution. 6 K. 429. Art. 2226. — When minors, persons under interdiction, or married women are admitted, in these qualities, to the benefit of restitution against their engagements, the reimbursement of what may have been paid, in consequence of those engagements, during minority, interdiction, or marriage, cannot be required of them, unless it be proved that what was paid, accrued to their benefit. Art. 2227. — Persons of the age of majority cannot receive the ben efit of restitution on account of lesion, except in cases and under condi- tions specially expressed by law. Art. 2228. — When the formalities required with regard to minors or persons under interdiction, either for the alienation of immovable property, or in a partition of a succession, have been complied with, they are considered, as to these acts, as though they had executed them being of full age or before interdiction. CHAPTER VI. OF THE PROOF OF OBLIGATIONS AND OF THAT OF PAYMENT. Art. 2229. — He who claims the execution of an obligation must prove it. On the other hand, he who contends that he is exonerated, must prove the payment or the fact which has produced the extinction of the obligation. Art. 2230. — The rule which concerns the literal proof, the testimo- nial proof, the presumption, the confession of the party, and the oath, are explained in the following sections. 301 OF CONVENTIONAL OBLIGATIONS. 3(X Section I. — Of the Literal Proof. ^l.— Of Authentic Acts. Art. 2231 — The authentic act, as relates to contracts, is that which has been executed before a notary public or other oflBcer authorized to execute such functions, in presence of two witnesses, free, male, and aged at least of fourteen years, or of three witnesses, if the party be blind. If the party docs not know how to sign, the notary must cause him to affix his mark to the instrument. Stat. 2d March, 1852, p. 80.—^ 1. All proces verbals of sales of succession property, signed by the sheriff or auctioneer making the same, by the purcha.ser and two witnesses, are declared to be authentic acts for all intents and purposc^M. 16 L. 5W; 10 R. 80 ; 1 A. 323; 2 A. 41S ; See 12 R. 210. Art. 2232. — An act which is not authentic, through the incompe- tence or the incapacity of the officer, or through a defect of form, avails as a private writing, if it be signed by the parties. 12 R. 210 ; 2 A. 418; See 10 L. 804. Art. 2233. — The authentic act is full proof of the agreement con- tained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery. 3 L. 422. Art. 2234. — The acknowledgment of payment, made in an authentio act, cannot be contested, under pretence of the exception of nod ?inme- rata jjeciinid, which is hereby abolished. 11 L. 416 ; 13 L. 9; See 18 L. 847. Art. 2235. — An act, whether authentic or under private signature, is proof between the parties, even of what is there expressed only in enunciative terms, provided the enunciation have a dii-ect reference to the disposition. Enunciations foreign to the disposition, can serve only as a com- mencement of proof. 18 L. 9 ; 16 L. 592. Art. 2236. — Counter-letters can have no effect against creditors, or bond fide purchasers ; they are valid as to all others. 13 L. 9. § 2. — Of Acts wider Private Signature. Art. 2237. — All acts may be executed under private signature, except such as positive laws have ordained to be passed in presence of a notary. See 12 R. 210. Art. 2238. — It is not necessary that those acts be written by the contracting parties, provided they be signed by them. See 12 R. 210. Art, 2239. — An act under private signature, acknowledged by the party against whom it is adduced, or legally held to be acknowledged, has, between those who have subscribed it, and their heirs and assigns, the same credit as an authentic act. 302 OF CONVENTIONAL OBLIGATIONS. Art. 2240. — The person, against whom an act under piivale signa ture is produced, is obliged formally to avow or disavow his signature. The heirs or assigns may simply declare, that they know not the handwriting or the signature of the person they represent. 1 A. 825 ; See S N. S. 297 ; 1 L. 486. Art. 2241. — If the party disavow the signature, or the heirs or other representatives declare that they do not know it, it must be proved by witnesses or comparison, as in other cases. 9 L. 56-3 ; 13 L. 142 ; 15 L. 179 ; 2 A. 217. Art. 2242. — Sales or exchanges of real property and slaves, by instruments made under private signature, are valid against hondjide purchasers and creditors, only from the day on which they are registered in the office of a notary, or from the time of the actual delivery of the thing sold or exchanged. 8 N. & 186 ; 3 L. 160 ; 16 L. 433, 442, 454 ; 13 L. 17 ; 12 R. 210 ; 1 A. 249 ; 2 A. 912 ; See 1771, 2417 Art. 2243. — Sales or exchanges of personal property are void against bona fide purchasers and creditors, unless possession is given before such bond fide purchaser or creditor acquires his right by pos- session. What is a delivery of possession depends on the nature of the property ; it may be constructive or actual ; the delivery of the key of a store in which it is contained, or an order accepted by the person in whose custody it is held, if at the order of the vendor, is good evidence of delivery. 3M. 862; 4M.25; 7M. 24; 9M. 403; 12L. 3T5; IR. 26; 3 R. 831 ; 12K. 51; 1 A. 59. Art. 2244. — The books of merchants cannot be given in evidence in their favor ; they are good evidence against them, but if used as evidence, the whole must be taken together. 3M. 188; 2N.S. 509; 4N. S. 883; 12 R. 407; 2 A. 24. Art. 2245. — Domestic books and papea-s are no proof in favor of him who has written them ; they are proofs against him : 1. In all cases where they formally declare a payment received ; 2. When they contain an express mention that the minute was made to supply the want of a title, in favor of him for whose advantage they declare that an obligation was made. Art. 2246. — What is written by the creditor at the foot, in the margin, or on the back of the title, that has always remained in his pos- session, though it be neither signed nor dated by him, is good evidence, when it tends to establish the discharge of the debtor. In like manner, what is written by the creditor on the back, in the margin, or at the foot of a duplicate of a title, or of a receipt, is evi- dence, provided that duplicate be in the hands of the debtor. § Z.— Of Copies of Titles. Art. 2247. — The copies of the acts, which are certified true copies from the originals by the notaries who are the depositaries of such originals, make proof of what is contained in the originals, unless it be proved that such copies are incorrect. 16 L. 332. 303 OF CONVENTIONAL OBLIGATIONS. 303 Stat. 22c?, April, 1853. No. 151. — An Act regulating the duties of Notaries, ivithout the limits of the City of New Orleans. — ^ 1 . From and after the passage of this act, it shall be the duty of all notaries public within this State, without the limits of the city of New Orleans, to deposit in the office of the parish recorders of the parish, in which they may be respectively commissioned, within fifteen days at farthest, after the same shall have been passed, the original of all acts passed before said notaries, and in the order of their respective dates, first making a care- ful record of said acts in their record books : Provided, that the fore- going shall not be construed as embracing inventories or partitions or any other act required by law to be performed by them under any order of court, but the original of all such acts, without being recorded, shall be returned to the court from which the order issued. § 2. Said acts, when thus deposited in the office of the parish recorder, shall form a part of the archives of the same, and shall immediately be recorded by him as follows : If the act contains a conveyance of real estate or slaves without a mortgage, in a book of conveyances to be kept by the recorder, if such act contains a conveyance of real estate or slaves, together with a mortgage, in the aforesaid book of convey- ances, and also in a book of conventional mortgages to be kept by such recorder, all acts required by law to be recorded except those acts hereinabove set forth, shall be recorded according to the provisions of the laws now in force, and all other acts in a " book of miscellaneous acts," also to be kept by such recorder, and it shall be the duty of said recorder to grant copies of the original acts deposited with him as aforesaid, under his signature and seal of office, which certified copy shall be considered legal evidence of the contents of the original acts. § 3. It shall be the duty of the recorder to indorse, on the back of each act transmitted to him, the time such act was received by the recorder, and to record the same without delay in the books above prescribed, in the order in which they were received ; and said acts shall have cfi"ect against third persons, only from the date of their being deposited in the office of the parish recorder. § 4, All notaries without the limits of the city of New Orleans, who may contravene the provisions of the preceding sections, shall be liable to a fine of one hundred dollars for each infraction of the same, to be recovered before any court of competent jurisdiction, one-half for the benefit of the informer, and the other half for the use of the State. ^ 5. Within six months from the passage of this act, it shall be the duty of all said notaries to have filed, in the same manner as above specified, the originals of all acts now on record in their several offices, without recording the same. ^ 6. All laws, or parts of laws, contrary to. this act, be, and the same are hereby, repealed. Art. 2248. — When the original titles or records are no longer in 304 OF CONVENTIONAL OBLIGATIONS. being, copies are good proof, and supply the want of the original, when they are certified as being conformable to the record, by the notary who has received it, or by one of his successors, or by any other public offi- cer, with whom the record was deposited, and who had authority to give certified copies of it, provided the loss of the original be previously proved. . See 6 IJ. 8. 208 ; 7 N. 8. 550 ; See 5 N. S. 175. Art. 2249. — When an original title, by authentic act, or by pri- fate signature duly acknowledged, has been recorded in any public ioffice, by an officer duly authorized, either by the laws of this State, or of the United States, to make such record, the copy of such record, duly authenticated, shall be received in evidence, on proving the loss of the original, or showing circumstances supported by the oath of the party, to render such loss probable. 13 L. 536; See 5 N. 8.175. Art. 2250. — The record of an act purporting to be a sale or exchange of real property, shall not have effect against creditors or uofia fide purchasers, unless, previous to its being recorded, it was ac- knowledged by the party, or proved by the oath of one of the subscrib- ing witnesses, and the certificate of such acknowledgment be signed by a judge or notary, and recorded with the instrument. 12 K. 210. \ ^. Of Recognitive and Confirmative Acts. Art. 2251. — Recognitive acts do not dispense with the exhibition of the primordial title, unless its tenor be there specially set forth. Whatever they contain over and above the primordial title, or differ- ent from it, is of no effect. Nevertheless, if there be several recognitions conformable, supported by possession, one of them being dated thirty years back, the creditor may dispense with the exhibition of the primordial title. 8 L. 141. Art. 2252. — The act of confirmation or ratification of an obligation, against which the law admits the action of nullity or rescission, is valid only when it contains tno substance of that obligation, the mention of the motive of the action of rescission, and the intention of supplying the defect on which that action is founded. 13 L. 159 ; 1 E. 457, 459 ; 11 E. 98 ; 6 A. 53, 55. In default of an act of confirmation or ratification, it is sufficient that the obligation be voluntarily executed, subsequently to the period at which the obligation could have been validly confirmed or ratified. 2 E. 1 ; 4 A. 148. The confirmation, ratification, or voluntary execution m due form, and at the period fixed by law, involves a renunciation of the means and exceptions that might be opposed to the act, without prejudice however to the right of persons not parties to it. 4 E. 127 ; See 10 M. 72C ; 6 L. 604 ; 17 L. 455 ; See 12 E. 221 ; 6 L. 725. Art. 2253. — The donor cannot, by any confirmative act, supply the defects of a donation ititer vivos null in form ; it must be executed again in legal form. 4 R. 157. 305 OF CONVENTIONAL OBLIGATIONS 305 Art. 2254. — The confirmation, ratification, or voluntary execution of a donation by the heirs or assigns of the donor, after his decease, in- volves their renunciation to oppose either defects of forms or any other exceptions. 4 E. 157 ; 3 A. 523. Section II. — Of Testimonial Fronf. Art. 2255. — Every transfer of immovable property or slaves must be in writing ; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the ven- dee, who confesses it when interrogated on oath, provided actual de- livery has been made of the immovable property or slaves thus sold. 5 M. 442; 1 N. S. 4r)6; 2L. 440, 593; 3 L. 118, 4G0; 4L. 4, 22, 1C9; 377; 5 L. 400; 13 L.S&i; 15 L. 493 ; 18 L. 595 ; 6 K. 428 ; 8 K. 102 ; 10 E. 4C6 ; 1 A. 459 ; 4 A. 103 ; See 1757, 2584, 2415, 2961 . Art. 2256. — Neither shall parol evidence be admitted against or be- yond what is contained in the acts, nor on what may have been said be- fore, or at the time of making them, or since. 6 M. 423 ; S N. S. 542 ; 2 L. 44G ; 3 L. 460i 4 L. 1, 1G9 ; 5 L. 279 ; 10 L. 205, 209 ; 13 L. 1.33, 13G ; 16 L. 180 ; 17 L. 369 ; 1 E. 101 ; 3 E. 57, 441 ; 4 E. 508 ; 5 E. Ill ; 10 E. 4GG ; 11 E. 270 ; 3 A. 153, 193, 492, GOO ; 6 A. 589 ; See 4 L. 29 ; See 2255. Akt. 2257. — All agreements relative to personal property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which ai'e not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible wit- ness, and other corroborating circumstances. 8 N. S. 457 ; 3 L. 213 ; 5 L. 268 ; 17 L. 344, 459 ; 1 E. 51 ; 2 E. 804 , 4 E. 157, 468 ; 5 R. 491 ; 1 A. 29 469; 2 A. 18S, 536; See 7 L. 104; 14 L. 346. Art. 2258. — When an instrument in writing, containing obligations which the party wishes to enforce, has been lost or destroyed, by acci- dent or force, evidence may be given of its contents, provided the party show the loss, either by direct testimony, or by such circumstances, sup- ported by the oath of the party, as render the loss probable ; and in this case, the judge may, if required, order reasonable security to be given to indemnify the party against the appearance of the instrument, in case circumstances render it necessary. 7 L. 20G; 12 L. 166; 13 L. 216; 1 E. 214; 2 E. 112,128; 4 E. 157; 2 A. 754,1012; 8 A. 227. Art, 2259. — In every case where a lost instrument is made the foun- dation of a suit or defence, it must appear that the loss has been adver- tised within a reasonable time, in a public paper, and proper means taken to recover the possession of the instrument. 8-M.144; 7L.206; 8 L. 516; 13 L. 213; 16 L. 473; 1 E. 214; 4 E. 157: 2 E. 112, 128; 2 A. 751 829.976; 3 A. 227. Art. 2260. — The competent witness of any covenant or fact, what- ever it may be, in civil matters, is that who is above the age of fourteen years complete, of a sound mind, free or enfranchised, and not one of those whom the law deems infamous ; he must besides be not interested, neither directly nor indirectly, in the cause. 4 L. 200 19 L. 5S4, 090; 4 E. 81 ; 6 A. 292 ; 8L. 270 ; 10 E. 458. 20 306 OF CONVENTIONAL OBLIGATIONS. The husband cannot be a witness either for or against his wife, nor the wife for or against her husband ; neither can ascendants with respect to their descendants, nor descendants with respect to their ascendants. 13 L. IS ; 12 R. 639 ; 2 A: 34.5, 480 ; 3 A. 142, 1T4 ; See 8 ^l. 363 ; 12 M. 239 : 2 N. S. 455 ; 5 N. S. 5 ; 4 232, L. 526 ; U L. 269 ; 6 A. 192 ; See also 7 L. 284. Stat. 2Sth January y 1828, p. 12. — Whereas, doubts have arisen, whether the act, the provisions of which this act is intended to revive, has not been abrogated by the two thousand two hundred and sixtieth article of the new Civil Code, by which it is enacted, that to be com- petent witness of any covenant of fact, in civil matters, one must not be interested either directly or indirectly in the cause ; and, in order to avoid any difficulty on that subject, Be it enacted, &c.. That the provisions of the above cited iTct be, and are, hereby revived, and that, therefore, the interest that any wit- ness may have as a member of a corporation, civil or religious, shall not be considered as a sufficient reason for excluding his testimony in a case in which the said corporation is a party, unless the said witness have in the cause a particular interest, distinct from that which he has in com- mon with the other members of the said corporation ; provided, however, that the interest which the stockholders of any bank, insurance compa- nies, and other moneyed institutions of that kind, shall be considered as a sufficient reason not to admit the said stockholders as competent wit- nesses in any case where the said banks and other moneyed institutions may be parties. Art. 2261. — The circumstance of the witness being a relation in the collateral line, as far as the fourth degree inclusively, of one of the parties interested in the cause, or engaged in the actual service or salary of one of the said parties, or a free colored person, is not a sufficient cause to consider the witness as incompetent, but may, according to cir- cumstances, diminish the extent of his credibility. 4L. 200; 4 K. 157; 12 E. 639. Art. 2262. — No attorney or counsellor at law shall give evidence of any thing that has been confided to him by his client, without the con- sent of such client ; but his being employed as a counsellor or attorney, does not disqualify him from being a witness in the cause in which be is employed. 7 L. 20T ; 1 K. 157 ; See 7 N. S. 177. Section III. — Of Presumptions. Art. 2263. — Presumptions are consequences which the law or the judge draws from a known fact to a fact unknown. 4 K. 157. § 1. — Of Presumptions established by Laxu. Art. 2264. — Legal presumption is that which is attached, by a spe eial law to certain acts or to certain facts ; such are : 307 OF CONVENTIONAL OBLIGATIONS. 307 1. Acts which the law declares null, as presumed to have been madposed that the buyer would not have purchased it, had he known of the vice. IN. 8. 312; 1L.310; 5L.3G0; 7L.519; 9L.134; 12L.213; ITL. 101; Sec S M. 813; 2 L. 4G3; 14 L. 433. Art. 2497. — Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibi- tory vices. 9 L. 129, 132 ; 19 L. 391 ; 8 R. 225 ; 1 A. 889 ; 3 A. 377 ; 5 A. 491 ; See 2 L. 4GS ; 14 L. 4-32. Art. 2498. — Nor can the buyer institute the redhibitory action, on account of the latent defects which the seller has declared to him before or at the time of the sale. Testimonial proof of this declaration may be received. IG L. 340; 8 E. 12; 5 A. 106; 6 A. 724. Art. 2499. — With regard to inanimate things, the latent defects which give rise to the redhibitory action, are in general all such as are comprised in the definition expressed at the commencement of this para- graph. 6 A. 497. Art. 2500. — The latent defects of slaves and animals are divided into two classes ; vices of body, and vices of character. 7 N. S. 078. 335 OF SALE. 335 Art. 2501. — The vices of body are distinguished into absolute and relative. Absolute vices are those, of which the bare existence gives rise to the redhibitory action ; Relative vices are those, which give rise to it, only in proportion to the degree in which they disable the object sold. 2 L. 4C8. Art. 2502. — The absolute vices of slaves are leprosy, madness, and epilepsy. 19 L. 392 ; C A- 2TS. Art. 2503. — The absolute vices of horses and mules are short wind, glanders and founder. Art. 2504. — The other vices of body, as well in slaves as in animals, are included in the definition given at the commencement of this para- graph. Art. 2505. — The vices of character, which give rise to the redhibi tion of slaves, are confined to the cases iu which it is proved : That the slave has committed a capital crime; 6L. 229; 12 L. 212. Or, that he is addicted to theft ; Or, that he is iu the habit of running away. 13 L. 202,354; 8 A. 464. The slave shall be considered as being in the habit of running away, when he shall have absented himself from his master's house twice for several days, or once for more than a month. 2 L. 251, 408; 6 A. 30; See .amcndmont to Art. 2508. Art. 2506. — The vices of character, which give rise to the redhibi- tion of animals, are comprised iu the definition given at the commence- ment of this paragraph. Art. 2507. — A declaration made in good faith by the seller, that the thing sold has some quality, which it is found not to have, gives rise to a redhibition, if this quality was the principal motive for making the pui'chase. Art. 2508. — The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance witliin tliree days immediately following the sale, it is presumed to have existed before the sale. Stat. 1834, p. 7. — ^ 3. The buyer of a slave who institutes a redhi- bitory action on the ground that such slave is a runaway or thief, shall not be bound to prove that such vice existed before the date of the sale, whenever said vice shall have been discovered within two months after the sale, and no renunciation of this provision shall be valid ; provided, however, that where unusual punishments have been inflicted, this legal presumption in favor of the buyer shall cease ; And provided also, that if any redhibitory, bodily or mental maladies discover themselves within fifteen days after the sale, it shall be presumed to have existed on the day thereof, any law to the contrary notwithstanding; And, pro- vided also, that the provisions of this section shall not apply to slaves who have been more than eight months in this State. I N. 8. 812; 8 N. 8. 478; 1 L. 810 ; 2 L. 254; 6 L. 441 ; 17 L. 101 ; 5 R. 222; 4 A 51, 96 ; 5 A. 604: Sco4A. 186; 5 A. 559. 336 OF SALE. Art. 2509. — Tlie seller wlio kncsv not the vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, un- less the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses. 1 N. S. 312; 1 L. 809 ; 3 L. 82S; 17 L. 101 ; 9 E. 851 ; 1 A. 2T; 2 A.T4S. Art. 2510. — If the thing affected with the vices, has perished through the badness of its quality, the seller must sustain the loss. IT L. 100; IE. 4G. Art. 2511. — If it has perished by a fortuitous event, before the purchaser has instituted his redhibitory action, the loss must be borne by him. But if it has perished even by fortuitous event since the commence- ment of the suit, it is for the seller to bear the loss. Art. 2512. — The redhibitory action must be instituted an indemnification to the evicted tenant, a sum eijual to the amount of *the rent, for the time, which, according to the article '2G.")6, is to elapse between the notice and the going out. 10 L. 22. Art. 2708. — If it be a predial estate, the indemnification to be paid by the lessor to the evicted farmer, shall be the third of the price of the rent, during time whidi lias yet to elapse. Art. 2709. — Tlie (juantum of damages shall be determined by skil- ful men, when the controversy relates to manufactures, mines and things of that kind, which require great disbursements. Art. 2710. — The pm-chaser who wishes to use the riglit reserved by the lease, is moreover bound to give previous notice to the tenant ac- cording to article 2656. The farmers of predial estates shall have one year's notice. Art. 2711. — Previous to the expulsion of a farmer or tenant, tlie before prescribed indemnifications must be paid to him, either by the les- sor, or, in his default, by the new purchaser. Art. 2712. — If the lease has not been reduced to writing, the pur- chaser cannot be compelled to give any indemuifioation. Art. 2713.- — A person who has purchased an estate, the former pro- prietor of which has reserved by contract the right of redemption, can- not turn out the lessee, until, by the expiration of the time fixed for the redemption, the purchaser becomes the irrevocable owner. Art. 2714. — The tenant of a predial estate cannot claim an abate- ment of the rent, under tlie plea that, during the lease, either the whole, or a part of his croj), has been destroyed by accidents, unless those ac- cidents be of such an extraordinary nature, that they could not have been foreseen by either of the parties at the time the contract was made, such as the ravages of war extending over a country then at peace, and where no person entertained any apprehension of being exposed to inva- sion or the like. But even in these cases, the loss suffered must havp been equal to the value of one-half of the crop at least, to entitle the tenant to an abatement of the rent. The tenant has no right to an abatement, if it is stipulated in the contract, that the tenant shall run all the chances of all foreseen and unforeseen accidents. Art. 2715. — The tenant cannot obtain an abatement, when the loss of the fruit takes place after its separation from the earth, unless the lease gives to the proprietor a portion of the crop in kind, in which case the proprietor ought to bear his share of the loss, provided the tenant has committed no unreasonable delay in delivering his portion of the crop. 357 . OF LETTING AND HIRING. 357 CHAPTER III. OF THE LETTING OUT OF LABOR OR INDUSTRY. Art. 27 1G. — Labor may be let out in three ways : 1. Laborers may hire tlicir services to another person ; 2. Carriers and watermen hire out their services for the conveyance either of persons or of goods and merchandise ; 3. Workmen hire out their hibor or industry to make buildings or other works. Section I. — Of the Hiring of Servants and Wm-kmcn. Art. 2717. — A man can only hire out his services for a certain limited time, or for the performance of a certain enterprise. Art. 2718. — A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause. 8 L. 185. Art. 2719. — Laborers who hire themselves out to serve on planta- tions, or to work in manufactures, have not the right of leaving the per- son who has hired them, nor can they be sent away by the proprietor, until the time has expired during which they had agreed to serve, un- less good and just causes can be assigned. 8 L. 185; 12 L. 69 ; 1 R. 319, 332. Art. 2720. — If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such' la- borer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived. 3L. 299; SL. 185; 12 L. 67; 15 L. 371 ; IR. 319, 332; 12 R. 648. Art. 2721. — But if, on the other hand, a laborer, after having hired out his services, should leave his employer, before the time of his en- gagement has expired, without having any just cause of complaint against his employer, the laborer sliall then forfeit all the wages that may be due to him, and shall moreover be compelled to repay all the money he has received, cither as due for his wages, or in advance thereof on the run- ning year or on the time of his engagement. , U L. 369, 373; 12 L 69 ; 1 R. 819,332. Section II. — Of Carriers a?id Watermen. Art. 2722. — Carriers and watermen are subject, with respect to the safe keeping and preservation of the things intrusted to them, to the same obligations and duties which are imposed on tavern-keepers in the title of dcjiosit and sequestration. I R. 410 ; 11 R. 24. Art. 2723. — They are answerable, not only for what they have actu- 358 OF LETTING AND HIRING. ally received in their vessel or vehicle, but also for what has been de livered to them at the port or place of deposit, to be placed in the ves sel or carriage. See 9 L. 33. Art. 2724. — The price of a passage agreed for to be paid by a wo- man, for going by sea from one country to another, shall not be increased. in case the woman has a child during the voyage, whether her pregnancy .was known or not by the master of the ship. Art. 2725. — Carriers and watermen may be liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrol lable events. 4L. 223; 9L.33; 1 11.410; 11 K. 24; 5 A. TOG; Seo 1 L. 349 ; SN. S. 120; 10R.4;34; 6 M. 6S3. Art. 2726. — The masters of ships and other vessels, and theif crews, have a privilege on the ship, for the wages due them on the last voyage. Section III. — Of Flots for Buildings and other Works. Art. 2727. — To build by a plot, or to work by the job, is to under take a building or a work for a certain stipulated price. 2 A. 549. Art. 2728. — A person who undertakes to make a work, may agree, either to furnish his work and industry alone, or to furnish also the ma- terials necessary for such a work. Art. 2729. — When the undertaker furnishes the materials for the work, if the work be destroyed, in whatever manner it may happen, previous to its being delivered to the owner, the loss shall be sustained by the undertaker, unless the proprietor be in default for not rcciving it, though duly notified to do so. Sec 9 L. 435. Art. 2730.- — When the undertaker only furnishes his work and in- dustry, should the thing be destroyed the undertaker is only liable, in case the loss has been occasioned by his fault. Art. 2731. — In the case mentioned in the preceding article, if the thing be destroyed by accident and not owing to any fault of the under- taker, before the same be delivered, and the owner be in default for not receiving it, the undertaker shall not be entitled to his salaries, unless the destruction be owing to the badness of the materials used in the building. In line 3, after the word "and," read "-witliout the owner bein;,'," &c., See French text. Art. 2732. — If the work be composed of detaclicd pieces, or made at the rate of so much a measure, it may be delivered separately, and that delivery shall be presumed to have taken place, if the proprietor has paid to the undertaker the price due for the parts of the work which have already been completed. 9 L. 23. Art. 2733. — If a building which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or un- dertaker shall bear the loss, if the building falls to ruin in the course of 359 OF LETTING AND HIRING. 35y ten years, if it be a stone or brick building and of five years if it be built of wood or with frames filled with bricks. Art. 2734. — When an architect or other workman has undertaken the building of a house by the job, according to a plan agreed on be- tween him and the proprietor of tlic ground, he cannot claim an increase of the price agreed on, on the plea of the original plan having been changed and extended, unless he can prove that such changes have been made in compliance with the wishes of the proprietor. 2 L. 490 ; 4 R. 899 ; 5 R. 1T9 ; 9 R. 402 ; 10 R. 94. Art. 2735. — An exception is made to the above provision, in a ease where the alteration or increase is so great, that it cannot be supposed to have been made without the knowledge of the owner, and also where the alteration or iucrease was necessary, and has not been foreseen. 4 L. 101 ; 14 L. 342. Art. 2736. — The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and labor already incurred, and such damages as the nature of the case may require. 2 L. 331 ; 6 L. 65G ; 8 L. 14T ; 5 A. 220. Art. 2737. — Contracts for hiring out work are cancelled by the death of the workman, architect, or undertaker, unless the proprietor should consent that the work should be continued by the heir or heirs of the architect, or by workmen employed for that purjjose by the heirs. 3 A. 2S5. Art. 2738. — The proprietor is only bound, in the former case, to pay to the heirs of the undertaker, the value of the work that has al- ready been done, and of the materials already prepared, proportionably to the price agreed on, in ease such work and materials may be useful to him. 8 A. 285. Art. 2739. — The undertaker is responsible for the deeds of the per- sons employed by him. Art. 2740. — If an undertaker fails to do the work he has contracted for, or if he does not execute it in tlie manner, and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract. 8 L. 1, 32S. Art. 2741, — Masons, carpenters, and other workmen, who have been employed in the construction of a building or other works, under- taken by the job, have their action against the proprietor of the house on which they have worked, only for the sum which may be due by him to the undertaker at the time their action is commenced. 8L. 53G; 11 I.. 45-3. Art. 2742. — Masons, carpenters, blacksmiths, and all other artifi- cers, who undertake work by the job, are bound by the provisions con- tained in the present section, for they may be considered as undertakers cacli in his particular line of business. 10 L. 231. Art. 2743. — The undertaker has a privilege, for the payment of his labor, on the building or other work, which he may have constructed 360 OF RENTS AND ANNUITIES. Workmen employed immediately by the owner, in tbe construction or repair of any building, have the same privilege. 6 N. S. 169 ; 2 L. 4S7 : 6 E. 833 ; 4 A. 97 ; 5 A. 4-31. Art. 2744. — Workmen and persons furnishing materials, who hav6 contracted with the undertaker, have no action against the owner who has paid him. If the undertaker be not paid, they may cause the mo- neys due him to be seized, and they are of right subrogated to his privilege. 2 L. 4S7 ; S L. D3C ; 11 L. 45S ; G R. 333, 532, 37S ; 4 A. 97 ; 5 A. 481. Art. 2745. — The payments, which the proprietor may have made in anticipation to the undertaker, are considered, with regard to work- men and to those who furnish materials, as not having been made, and do not prevent them from exercising the right granted them by the pre- ceding article. 2 L. 4S7 ; 8 L. 530 ; 11 L. 45S ; 6 E. 333 ; 4 A. 97 ; G A. GO. Art. 2740. — No agreement or undertaking for work exceeding five hundred dollars, which has not been reduced to writing, and registered with the recorder of mortgages, shall enjoy the privilege above granted. G N. S. 476 ; 2 L. 4S7 ; 5 L. 94 ; 4 A. 97 ; 5 A. 431 ; 6 A. G3, 4S0 ; V. 274;5, 3332. Art. 2747. — For those not amounting to five hundred dollars, this formality is dispensed with ; but the privilege granted to them is pre- scribed against after six months, reckoning from the day when the work is completed. 16 L. 293; See 15 L. 416. Art. 2748. — Workmen employed in the construction or repair of ships and boats, enjoy the privilege established above, without being bound to reduce their contracts to writing, whatever may be their amount ; but this privilege ceases, if they have allowed the ship or boat to depart without exercising their right. TITLE X. OF RENTS AND ANNUITIES. Art. 2749. — There are two species of rent ; that of land, which ia properly called rent, and that of money. CHAPTEE I. OF THE RENT OF LANDS. Art. 2750. — The contract of rent for lands is a contract, by which one of the parties conveys and cedes to the other a tract of land, or any other immovable property, and stipulates that the latter shall hold it as owner, but reserving to the former an annual rent of a certain sum of 351 OF RENTS AND ANNUITIES. 36 i money, or of a certain quantity of fruits, which the other party binds himself to pay him. Art. 275 1 . — It is of the essence of this conveyance that it be made in perpetuity. If it be made but for a limited time, it is a lease. Art. 2752. — A contract of sale, in which it is stipulated that the price shall be paid at a future time, but that it bears interest from the day of sale, is not a contract of rent. On the contrary, a contract made bearing the name of a sale, in which the seller docs not stipulate the payment of the price, but a cap- ital bearing interest forever, is a contract of rent. 1 A. 209. Art. 2753. — The contract of rent partakes of the nature of sale and of lease : Of sale, inasmuch as it transfers the property of the thing, and subjects the party to the same warranty which is imposed on the vendor ; And of lease, inasmuch as it subjects the rentee to the payment of rent. Art. 2754. — The contract of rent is subjected to the same rules as the contract of sale, except in the cases hereafter specified. Art. 2755. — The thing, sold with reservation of rent, becomes the property of the' person receiving it, in the same manner as a thing sold becomes the property of the purchaser ; but whereas the purchaser may make what use he pleases of the thing bought, and may even destroy it, when he has paid the price, the purchaser under reservation of rent is bound to preserve the thing in good condition, that it may continue capable of producing wherewith to pay the rent. Art. 2756. — When a thing sold is destroyed from unforeseen accident, the loss falls entirely on the purchaser ; in case of a sale reserving rent, the loss is sustained by both parties ; for, on one side, the lessee loses the enjoyment of the thing ; and on the other, the lessor loses the right to demand the rent, which is extinguished. But in order that the rent be extinguished, the thing must have perished entirely; if it be lost only in part, the rent is only reducible in proportion to the loss. Art. 2757. — A thing, sold and paid- for maybe alienated absolutely and unconditionally ; but if it be sold with a rent reserved, it remains perpetually subject to the rent, into whatsoever hands it may pass. 1 A. 209. Art. 2758. — The price of a thing sold is a debt personal to the pur- chaser. But where there has been rent reserved, it is a charge imposed on the property ; and the person alienating it, is only answerable for the arrears which became due, while he was in the possession. 1 A. 209. Art. 2750. — The rent charge, although stipulated to be perpetual, is essentially redeemable. But the seller may determine the terms of the redemption, and stipulate that it shall not take place until after a certain time, which can never exceed thirty years. 362 OF RENTS AND ANNUITIES. Art. 2760. — If tlic value of the property has been determined hy the contract, the possessor, who wishes to redeem, cannot be made to pay any thing beyond that value. Akt. 2761. — If there has been no valuation, the rent is considered as fixed at the rate of six per cent, on the value, and the lessee may pay the capital at that valuation. Art. 2762. — The renter has for the payment of his rent a right of mortgage on the property, commencing from the date of the contract. But he cannot have it seized and sold; unless there be at least one entire year's rent due. 1 A. 200. Art. 2763. — The rent charge being inherent to the property bur- dened with it, is itself susceptible of being mortgaged, except where it has been gratuitously established for the benefit of a third person, on condition that it should not be liable to seizure. 1 A. 209. CHAPTER XL OF ANNUITIES. Art. 2764. — The contract of annuity is that by which one party de- livers to another a sum of money, and agrees not to reclaim it, so long as the receiver pays the rent agreed upon. Art. 2765. — This annuity may be either perpetual or for life. Art. 2766. — The amount of annuity for life can in no case exceed the double of the conventional interest. The amount of j^erpetual annuity cannot exceed the conventional interest. Art. 2767. — Constituted annuity is essentially redeemable. The parties may only agree that the same shall not be redeemed prior to a time which cannot exceed ten years, or without having warned the creditor a time before, which they shtill limit. Art. 2768. — The debtor of a constituted annuity may be compelled to redeem the same : 1. If he ceases fulfilling his obligations during three years ; 2. If he does not give to the lender the securities promised by the contract. Art. 2769. — If the debtor should fail, or be in a state of insolvency, the capital of the constituted annuity becomes exigible, but only up to the amount at which it is rated, according to the order of contribution amongst the creditors. 2 A. 129. Art. 2770. — The debtor may be compelled by his security to redeem the annuity within the time which has been fixed in the contract, if any time has been fixed, or after ten years, if no mention be made of the time in the act. Art. 2771. — The interest of the sums lent, and the arrears of con- 363 OF PARTNERSHIP. 36o stituted and life annuity, cannot bear interest but from the day a ju dicial demand of the same has been made by the creditor, and when in terest is due for at least one whole year. TITLE XL OF PARTNERSHIP. CHAPTER L GENERAL PROVISIONS. Art. 2772. — Partnership is a synallagmatic and commutative coa tract made between two or more persons for the mutual participation ic the profits which may accrue from property, ci'edit, skill or industry, furnished in determined proportions by the parties. 3 A. 19, S19. Art. 2773. — It may be made by all persons capable of contracting. Art. 2774. — It is regulated by the rules laid down in the title of conventional obligations, in all things not differently- provided for by this title. Art. 2775. — All partnerships are null and void, which are formed for any purpose forbidden by law or good morals. But all the partners in such a partnership are liable in solido to third persons, who may con- tract with them without a knowledge of the illegal or immoral object of the partnership. Art. 2776. — Partnerships must be created by consent of the parties. Art. 2777. — A community of property does not of itself create a partnership, however that property may be acquired, whether by pur- chase, donation, accession, inheritance, or prescription. 17 L. 598. Art. 2778. — The community of property, created by marriage, is not a partnership ; it is the effect of a contract governed by rules pre- scribed for that purpose in this code. Art. 2779. — Property, when brought into partnership, or acquired by it, and the profits, wlien tliey are kept undivided for the benefit of the partncr.ship, are called partnership stock. Art. 2780. — Property, credit, skill and industry being the sources from which the profits of a partnership may be drawn, each of the part- ners may furnish cither or all of these, in such proportions as they may mutually agree. 11 li. 12S. 364 OF PARTNERSHIP. Art. 2781. — By credit^ in the foregoing article, is meant, not only a reputation for responsibility as to pecuniary concerns, but also any quality or other circumstance that may acquire the good will of others, and contribute to the prosperity of tJie partnership. 11 R. 128. Art. 2782. — It is of the essence of this contract that a profit is contemplated, and that each of the parties is to partake therein ; the proportion they are respectively to receive, is regulated by the stipula- tion of the parties, where they make any : where none are made for this purpose, the proportion is regulated by law. Art. 2783. — It is not necessary under the last article, that the con- tract of partnership should provide for the actual partition of tlie profits. A stipulation that the profits should be converted into stock for the benefit of all the parties in determined proportions, is valid. Art. 2784. — A participation in the profits of a partnership carries with it a liability to contribute between the parties to the expenses and losses. But the proportion, like that of the profits, may be regulated by the stipulation of the parties, and where they make none, is provided for by law; Art. 2785. — A stipulation that one of the contracting parties shall participate in the profits of a partnership, but shall not contribute to losses, is void, both as it regards the partners and third persons. But in the case of a partnership m commcndam ^ hereinafter provided for, the liability to loss may be limited to the amount of stock furnished. 1 K. 307 ; 3 A. 19. Art. 278G. — The foregoing article does not prevent the partners, or any one of them, from making a donation of their or his profits, arising from the partnership stock, to another, or even from selling the same for a valuable consideration ; but the donee or vendee is not on that account considered as a partner. Art. 2787. — A partnership cannot be executor, curator, or tutor, and cannot exercise any other private office. Art. 2788. — By private office, in this code, is meant such trust as relates solely to the interest or affairs of one or more designated indivi- duals, but which cannot yet be executed without the assent of the ma- gistrate. Art. 2789. — The nomination of a partnership to any private office is not of itself void ; where it is a trust susceptible of being exercised by more than one person, it shall be considered as a nomination of all the members of the partnership, individually, who belonged to it at the time of such nomination ; where the trust can, by law, only be exercised by one person, the first named partner shall be deemed to have been the person intended. Art. 2790. — A partnership may be appointed attorney or agent for the performance of any act or duty, which comes within the object for which the partnership is formed, and the responsibility of such trust or agency attaches to all the members, and they are also entitled to all the advantages resulting therefrom ; although one of them may execute the 365 OF PARTNERSHIP. o65 trust in tlie name of the partnersliip, nnless it be differently provided in the appointment. Art. 2791. — Where a partnership is appointed to perform a trustor agency, foreign to the object for which the partnersliip was formed, the appointment is not void , it may be performed in the name of the part- nership, if all the partners assent, and then the like responsibilities and advantages attach to the parties as are set forth in the last preceding article ; if the assent of all tlie parties be not given, the trust or agency cannot be perfoi'med under tlie jiower. Art. 2792. — If the trust or agency is executed by writing, whether required by law to be so done or not^the assent required by the last ar- ticle must also be in writing. Art. 2793. — In an ordinary partnership, if a partner having no au- thority to make purchases for the joint account, shall make any purchase in the name of the partnership, or in his own name with the partnership funds, the other jiartners may elect whether they will take such pur- chase on the joint account or not. Art. 2794. — The partnership property is liable to the creditors of the partnership, in preference to those of the individual partner ; but the share of any partner may, in due course of law, be seized and sold to satisfy his individual creditors, subject to the debts of the partner- ship ; but such seizure, if legal, operates a.s a dissolution of the partner- ship. 12 L. 870; 13 L. 2T9; IT L. 599; IS L. 32'!, 505; 2 R. 453; 9 K. 425; 11 K. 130; 2 A. 87, 810; 3 A. 189,319,456; 6 A. 81, 521. CHAPTER 11. RULES RELATING TO THE DIFFERENT KINDS OF PARTNERSHir. Section I. — Of the Division of Partnership. Art. 2795. — Partnerships are divided, as to their object, into com- mercial partnerships and ordinary partnerships. 12 R. 182; See 10 L. 419. Art. 2796. — Commercial partnerships are such as are forjned : 1. For the purchase of any personal property, and the sale tliereof, either in the same state or changed by manufacture ; 2. Fo^ buying or selling an}'^ personal property whatever, as factors or brokers ; 3. For carrying personal property for hire, in ships or other vessels. 8L.496;13L. 300;]5L.154; 17 L. 599; 3 R. 130; 1 A. 146,457; 2 A. 876; 3 A. 88; 5 A. 260; 6 A, 759. Art. 2797. — Ordinary partnerships are all such as are not commer- cial ; they are divided into universal and particular partnerships. 4 L. 106. Art. 2798. Commercial partnerships are divided into two kinds, general and special; they form the subject of a title in the Commercial Code ; but the articles of this title govern them in all points in which 366 OF PARTNERSHIP. there is no repugnance between the articles of this title and those con- tained in the Commercial Code. Where such repugnance exists, the lat- ter must, as to commercial partnership, prevail. Art. 2799. — There is also a species of partnership, -which may be incorporated with either of the other kinds, called partnership i?i com- metidam. See 7 R. 471. Section II. — Of Universal Partnerships. Akt. 2800. — Universal partnership is a contract by which the par- ties agree to make a common stock of all the property they respectively possess ; they may extend it to all property real or personal, or restrict it to personal only ; they may, in other partnerships, agree that the pro- perty itself shall be common stock, or that the fruits only shall be such ; but property which may accrue to one of the parties, after entering into the partnership, by donation, succession, or legacy, does not become com- mon stock, and any stipulation to that effect, previous to the obtaining the property aforesaid, is void. Art. 2801. — An universal partnership of profits includes all the gains that may be made from whatever source, whether from property or industry, with the restriction contained in the last article, and sub- ject to all legal stipulations to be made by the parties. Art. 2802. — If nothing more is agreed between the parties, than that there shall be a universal partnership, it shall extend only to the profits of the property each shall possess, and of their credit and in- dustry. Art. 2803. — If commercial business be carried on under an universal partnership, it must, as to that business, be governed by the rules pre- scribed by the Commercial Code. Art. 2804. — Universal partnership shall only be contracted between persons, who are not respectively incapacitated by laAV from conveying to, or from receiving from each other, to the injury of others. Art. 2805. — Universal partnership cannot be created without writ- ing signed by the parties, and registered in the manner hereafter pre- scribed. Section III. — Of Particular Partnerships. Art. 2806. — Particular partnerships are such as are formed for any business not of a commercial nature. 17 L. 598. Art. 2807. — If any part of the stock of this partnership consist of real estate, it must be in writing, and made according to the rules pre- scribed for the conveyance of real estate, and recorded as is hereafter prescribed with respect to partnerships in commendam. 2 A. 810 ; 8 A. 464. Art. 2808. — The business of this partnership must be conducted in the name of all the persons concerned, unless a firm is adopted by 367 OF PARTNERSHIP. 367 the articles of partnership reduced to writing, and recorded in the man- ner directed by the Last article. Art. 2809. If the articles be recorded, the parties may themselves adopt a firm which shall be composed of the name of one or more of the partners, but no other name than those of the parties concerned shall enter in such firm. Section IV. — Of Part?tership in Commendam. Art. 2810. — Partnership 2)1 commendam is formed by a contract, by which one person or partnership agrees to furnish another person or partnership a certain amount, either in property or money, to be em- ployed by the person or partnership to whom it is furnished, in his or their own name or firm, on condition of receiving a share in the profits, in the proportion determined by the contract, and of being liable to losses and expenses to the amount furnished, and no more. 7 R. 4T1. Art. 2811. — He who makes this contract, is called, with respect to those to whom he makes the advance of capital, a partner in commcn- dam. Every species of partnership may receive such partners. It is therefore a modification, of which the several kinds of partnerships are susceptible, rather thau a separate division of partnerships. 7 R. 471. Art. 2812. — The proportion of profits to be received by the partner %n commendam^ may be regulated by the covenant of the parties, as may also, with respect to each other, the proportion of losses and ex- penses to be borne by each of the partners ; but, as respects third per- sons, the whole sum furnished, or agreed to be furnished by such part- ner, is liable for the debts of the partnership. Art. 2813. — In no ease, except as is hereinafter expressly pro- vided, shall the partner, who has no other interest in the concern than that of partner in commendam^ be liable to pay any sum beyond that which he has agreed to furnish by his contract. If it has been paid and lost in the business of the partnership, he is exonerated from any other payment. If any part be unpaid, he is liable for that amount, and no more, to the creditors of the partnership. 1 A. 120, 138. Art. 2814. — The partner in commendam cannot be called upon by the partnership or its creditors to refund any dividend he may have re- ceived of net profits, fairly made during the solvency of the partners and honajidc^ at a time stipulated in the articles of partnership. Art. 281.5. — The partner in commendam cannot bind the other partners by any act of his ; he is not considered as a partner; further than is specially provided in this section. 7 R. 471. Art. 2816. — Partnership in commendam must be made in writing, and mu.st be recorded in the manner hereinafter directed, or otherwise the partner in commendam will be considered as a common partner in the concern, and will be subject to all the responsibilities towards third persons that would attach to any of the other partners, in the busines? for which he made his advance. 368 . OF PARTNERSHIP. Art. 2817. — The contract must express the amount fm-nislicd, or agreed to be furnished, by the partner in commoidam, the proportion of profits he is to receive, and of the expenses and losses he is to bear. It must state Avhether it has been received, and whether in goods, money, or how otherwise ; and if not received, it must contain a stipu- lation to pay or deliver it. It must be signed by the parties in the pre- sence of one or more witnesses, and shall be recorded in full by the officer authorized to record mortgages in the place where the principal business of the partnership is carried on. If it be a commercial part nership, and consists of several houses or establishments, in different parts of the State, such recording shall be made in each of such places. AuT. 2818. — The record mentioned in the preceding article shall be made in six days from the time of the execution of the contract, in the place where the principal establishment is situated, and if there are more tlian one, then allowing one da}-- for every two leagues distance between such principal establishment and the others. 5 E. 172. Art. 2819. — The officer, aiithorizcd to record mortgages, shall keep a separate book for the purpose of recording acts of partnership, which shall be, at all office hours, open for the inspection of any person who may choose to consult the same, and shall receive the same fees to which he is entitled for the recording of mortgages, and for certificates and copies. When the act is under private signature, the record shall be only made on the acknowledgment of the act, before a judge, a no- tary, or the person authorized to make the record, or by proof of the execution made in the same manner by one of the subscribing wit- nesses. Art. 2820. — The business of the concern, to which the partner in commendam has contributed his advance, must not be carried on in the name of such partner, or in his name jointly with others, or by him or by his agency as agent, or attorney for the other partners, but by those to whom he has made the advance, and in their name or firm ; and if the advance in commendam has been made to one person only, such person must carry on the business in his sole name, and must not make the addition " and company^'' or adopt any firm that may cause it to be understood that he has any partners. And if the partner in commen- dam shall take any part in the business of tlie partnership, or permit his name to be used in the firm, or knowingly permit any single person, to whom he has made the advance, to add any words to his name or firm, that may imply that he has other partners, besides the partner in commendam^ when in fact he has none, such partner in commendam shall be liable to all the responsibilities of a general partner in the business for which he has made the advance. 5 L. 403, 40S. Art. 2821. — If the person, to whom the partner in commcnaam has made the advance, shall, without his consent, use his name in the firm, or if, not having any other partner, he shall adopt or use any such 369 OF PARTNERSHIP. 369 addition as is expressed in the last preceding article, the partner in coin- mcndam may immediately withdraw the sum he has advanced, and, on giving notice in two of the public newspapers, shall be freed from all responsibility, either to the partners or to third persons, from the time of such notice. 2 R. 513. Art. 2822. — The partner in commendam cannot withdraw the stock he has furnished at a time when those, to whom he has advanced it, are in failing circumstances, or when there is a reasonable apprehen- sion that they will become insolvent. Section V. — Of Coinmercial Partnerships. Art. 2823. — The particular rules, by which commercial partnerships are governed, will be found in the Commercial Code. All the provi- sions of this title, not repugnant to those contained in that code, are also applicable to commercial partnerships. CHAPTER III. OF THE OBLIGATIONS OF FARTNERS TOWARDS EACH OTHER, AND TOWARDS THIRD FERSONS. Section I. — Of the Ohligations of Partners towards each other. Art. 2824. — When a partnership is made without specifying any time for its commencement, it begins at the time the contract is made. Art. 2825. — If there has been no agreement respecting the time the partnership is to last, it is supposed to have been entered into for the whole time of the life of the partners, under the modifications men- tioned in article 2855 ; or if the partnership be entered into for some affair the duration of which is limited, for the whole time such affair is to last. Art. 2826. — The contract of partnership may depend upon condi tions. Art. 2827. — Every partner owes to the partnership all that he has promised to bring into the same. When this proportion consists of a certain thing, and the partnership is evicted from the same, such partner is accountable for it towards the partnership, in the same manner as a seller is answerable to the pur- chaser who buys from him. Art. 2828. — The partner, who promised to bring into the partner- ship a certain thing, is bound, in case of eviction of it, in the same man- ner as a seller towards the purchaser who buys from him. Art. 2829. — The partner, who promised to put a sum of money into the partnership, owes the interest of the same from the day when he was bound to pay such sum. In the same manner he owes the interest on such sums as he may have taken out of the funds of the partnership, from the day he has re ceived them. 6L. 762; 2A,8T; 6 A. 170. 24 370 OF PARTNERSHIP. Akt. 2830. — Any partner, who lias bound himself to brin*, into tlie partnership his skill, industry, or credit, owes the partnership all the profits which he has made by the exercise of such skill, industry, or credit, or of such proportion thereof as he was bound to furnish. Art. 2831. — When one of the partners is, for his own particular account, creditor of a person, who is at the same time indebted unto the partnership for a debt of the same nature, which is due likewise, the partner is bound to apply what he receives from the debtor to the dis- charge of what is due to the partnership and to him, in the proportion of both debts, although by his receipt he should have appliedthe whole sum paid to what is due to him in particular. Art. 2832. — When one of the partners has received his full share of what is due to the partnership, if the debtor has become insolvent since, the partner, who has received his full share, is bound to return the same to the partnership, although he should have given a receipt for his own share. Art. 2833. — Every partner is answerable to the partnership for the damages which it may have suffered by his fault, without being able to compensate such damages by the profits which his industr}', skill, or credit may have produced in the business of the partnership ; provided that no partner shall be held liable for any loss which has happened in consequence of any thing bona fide done or omitted by him in the legal exercise of his power, either as administrator or partner, although such act or omission should be injudicious and injurious to the partnership. 2 L. 2C8, Art. 2834. — If the use only of certain specified property has been brought into partnership, and that property is of such a nature that it may be used and enjoyed without destroying it, the ownership remains in the partner who brought it in, and it is at his risk. But if such pro- perty be destroyed, or grow worse by keeping, or by the use that is made of it, if it was brought into partnership with the intent that it should be sold, or if it was taken at an estimated value, ascertained by an inventory or some other writing, in either of these cases, although the use only was contributed, the property is at the risk of the partner- ship ; and in case of loss or injiiry, the partner who brought it in is a creditor of the partnership, to the amount of the credit or loss ; provided that all the pi'ovisions.of this article maybe controlled by the covenants of the parties. C A. 195 ; Seo 13 L. 414. Art. 2835. — A partner may be a creditor of the pnrlnership, not only for the sums which he has disbursed, but likewise for the obliga- tions he has entered into bona fide for the partnership, and for losses reasonably incurred in the administration. Art. 2836. — When the contract of partnership does not determine the share of each partner in the profits or losses, each one shall be en- titled to an equal share of the profits, and must contribute equally to the losses. 4 A. 330; See 11 K. 349. Art. 2837. — If the partners have agreed to refer to one of them, or to a third person, for the regulation of the shares, this regulation cannot be annulled, unless it be by certain proofs that it is contrary to equity. 371 OF PARTNERSHIi. 371 Art. 2838. — The partner intrusted witli the administration of the affairs of the partnership by a special power given in writing, either by the articles of partnership or otherwise, may, without the assent of the other partners, and contrary to their prohibition, do any act which they have authorized him to do by such power, provided it be without fraud, and, in his opinion, for the advantage of the society. This power, if contained in the articles of co-partnership, cannot be revoked without a lawful cause, as long as the partnership lasts. But if the power of administering be given subsequent to the articles of partnership, it is a simple mandate, and may be revoked. Art. 2839. — When several partners are intrusted with the adminis- tration, without their duties being pointed out, or when it is not expressed that one shall not be able to act without the other, they may do separately all the acts relating to such administration. Art. ^840. — If it has been stipulated that one of the administra- tors shall not do any thing without the other, one alone cannot act, even when the other is prevented by sickness or otherwise from taking a part in the acts which relate to the administration, until there be a new agreement between the partners. Art. 2841. — When there is no agreement respecting administration in the act of partnership, the following rules are adhered to : 1. The partners are supposed to liave given reciprocally to each other, the power of administering one for the othor. What one docs, is valid, even for the share of his partners, without receiving their approbation, saving the right which they, or every one of the partners has to oppose the operation, before it be concluded ; 2. Every partner may make use of the things belonging to the part- nership, provided he employs the same to the uses for which they are intended, and he does not use them in such a manner as to prevent his partners from using them according to their rights, or against the in- terest of the partnership; S A. 819, 323. 3. Every partner has a I'ight to bind his partners to contribute with him to the expenses which are necessary for the preservation of the things of the partnership ; 4. A partner can neither dispose of nor make any change in any real property belonging to the partnership, without the consent of his part- ners, should even this disposition or change be advantageous to the partnership ; 4 L. 306. 5. In other than commercial partner.ships a partner cannot, as part- ner onl}^, and if he has not the administration, alienate or engage the thing.'', which belong to the partnership. 4 L. 806. Art. 2842. — Every partner may, without the consent of his part- ners, cuter into a partner.ship with a third person, for the share which he has in the partnership, but he cannot, without the consent of his partners, make him a partner in the original partnership, should ho even have the administration of it. lie is responsible for the damages occasioned by this third person to the partnership, in tlie same manner as he answers for those he has occasioned himself, according to article 2833. 372 OF PARTNERSHIP. Section II. — Of the Obligations of Partners towards third Persons. Art. 2813. — Ordinary partners arc not bound in so/ido for the debts of the partnership, and no one of them can bind his partners, unless they have given him power so to do, cither specially, or by the articles of partnership. 15 L. 427 ; 16 L. C9, 223 ; 1 R. 62 ; 6 R. 70, .%1 ; 12 11. 243 ; See U M. 881 ; 13 L. 197. Art. 2844. — In the ordinary partnership. c;uh jiartncr is bound for his share of the partnership debt, caU-uhitiiig .^^nih !-hare in proportion to the number of the partners, without any attention to the proportion of the stock or profits each is entitled to. 15 L. 1.3S, 423; 16 L. 71 ; 6 R. 216 ; 12 R. 24-3 ; 2 A. 623; See 2796 ; Sec 11 M. 331. Art. 2845. — If a debt be contracted by one of the partners of an ordinary partnership, who is not authorized, either in his own name or that of the partnership, the other partners will be bound, each for his share, provided it be proved that the partnership was benefited by the tran.saction. 2L. 26S; 13 L. 193; 1 R. 62. Art. 2846. — All engagements made relative to the partnership af- fairs, by the person appointed to administer the business of an ordinary partnership by articles of partnership duly recorded, and pursuant to those powers, shall bind all the partners. 4 L. 305, 30S. CHAPTER IV. OF THE DIFFERENT MANNERS IN WHICH PARTNERSHIPS END. Art. 2847. — A partnership ends : 1. By the expiration of the time for which such partnership was entered into ; 2. By the extinction of the thing, or the consummation of the nego- tiation ; IS L. 605. 3. By the death of one of the partners, or by his interdiction; 4. By his bankruptcy ; 5. By the will of all the parties, legally expressed, or by the will of any one of them, founded on a legal cause, and expressed in the man- ner directed by law. Art. 2848. — When a partnership has been entered into for a limit- ed time, it ends of course at the expiration of that time. Art. 2849. — The prorogation, which may be agreed upon between the parties, shall be made and proved in the same manner as the con- tract of partnership itself Art. 2850. — If a partnership has been entered into, the ptock of which is to be formed with the proceeds of a sale, to be made in com- mon, of several things belonging to each partner, and if it happen that the thing belonging to one of them is destroyed, the partnersliip shall be extinguished. Art. 2851. — Every partnership ends of right by the death of one of the partners, unless an agreement has been made to the contrary. 12 K. 2 13. 373 OF PARTNERSHIP. 37S Art. 2852. — The death of one partner dissolves the partnership between the surviving partners, unless there be a contrary stipulation. 8 K. 44 ; 12 R. 24.3 ; 3 A. 642. AuT. 2853. — If it has been stipulated that, in case of the death of one of the partners, the partnership should coytinue between the heir of tlie deceased and the surviving partners, or between the .surviving partners only, either of these stipulations shall be observed. But if the stipulation be, that the partncrsliip sliall continue be- tween the survivors only, the lieir of the deceased .shall be entitled to a division of the partnership property, as it stood at the day of tlie death of his ancestor, and to a share in the profits of any partnership operation in which his share of the stock was employed, and which was unfinished at that time. Art. 2854. — The interdiction of one of the partners, or his bank- ruptcy, has, as to the dissolution of the partnership, the same efl'cct as the death of one of the partners. Art. 2855. — If the partnership has been contracted without any limitation of time, one of the partners may dissolve the partnership by notifying to his partners that he does not intend to remain any longer in the partnership, provided, nevertheless, the renunciation to the partner- ship be made bona fidc^ and it does not take place unseasonably. Art. 2856. — The renunciation is not bona fide, when the partner re- nounces for the purpose of appropriating to himself the profits which the partners expected to receive from the partner.ship. Art. 2857. — The renunciation is made unseasonably, if it be mode at the time when things are no longer entire, and when the interest of the partnership requires that its dissolution be postponed. The com- mon interest of the partnership is considered, and not the interest of the partner who opposes the renunciation. Art. 2858. — Although the partner.ship may have been entered into for a limited time, one of tlie partners may, provided he has a just cause for tlie same, dissolve the partnership before the time, even although inconveniences might result to the partners, and althougli it miglit have been stipulated that the partners could not desist from the partnership before the stipulated time. 18 L. 341, 345. Art. 2859. — There is just cause for a partner to dissolve the part- nership before the appointed time, when one or more of the partners fail in their obligations, or when an habitual infirmity prevents him from devoting himself to the affairs of the partnership, which recjuire his presence or his personal attendance. Art. 2800. — The renunciation of the partnership by one of the part- ners does not operate the dissolution of the partnership, unless it be notified to all tiie other partners. Art. 2861. — The rules concerning the partition of inheritances, the manner of making such partition, and the obligations which result from the same between heirs, apply to partners. 13 L. 279 ; 2 A. 67. 374 OF LOAN. TITLE XII. OF LOAN. Art. 2862. — There are two kinds of loans : The loan of things, which may be used without being destroyed ; And the loan of things, which are destroyed by being used. The first kind is called loan for use or commodcCtum ; The second kind is called loan for consumption, or inutuum. Art. 2863. — This second kind is still subdivided into gratuitous loan, and loan on interest. CHAPTER I. OF THE LOAN FOR USE, OR COMMODATUM. Section I. — Of the Nature of the Loan for Use. Art. 2864. — The loan for use is an agreement, by which a person delivers a thing to another, to use it according to its natural destination, or according to the agreement, under the obligation, on the part of the borrower, to return it after he shall have done using it. Art. 2865. — This loan is essentially gratuitous ; otherwise it would be a letting or hiring. Art. 2866. — The lender remains proprietor of the thing lent. Art. 2867. — Every thing which is in commerce, and which is not consumed by use, may be the object of this agreement. Art. 2868. — The obligations entered into by the loan for use, are binding upon the heirs of the lender and of the borrower. But if the loan has only been made on account of the borrower, and to him personally, then his heirs cannot continue to possess the thing lent. Section II. — Of the Engagements of the Borrower for Use. Art. 2869. — The borrower is bound to keep and preserve, in the best possible order, the thing lent. He can use it only in the manner for which it is fitted by its nature, or which is allowed by the agreement, under the penalty of damages. Art. 2870, — If the borrower employs the thing to another use, or for a longer time than has been agreed on, he shall be liable for the loss which may happen, although the same might have happened by chance. Art. 2871 . — If the thing lent be destroyed by a chance which might have been prevented by the borrower in making use of his own; or if, unable to preserve both, he has preferred preserving his own, he is an- swerable for the loss of the other. Art. 2872. — If the thinj; has been valued at the time of lending it. 375 OF LOAN. 375 the loss which results, even by chance, is on account of the borrower, unless there has been a contrary agreement. Art. 2873. — If the thing be made worse by the effects of the use alone for which it was borrowed, and without any fault on the part of the borrower, he is not answerable for the same. Art. 2874. — The borrower is not at liberty to keep the thing as a compensation for what the lender owes him. Art. 2875. — If, in order to use the thing, the borrower be com- pelled to go to some expense, he has no right to be reimbursed by the lender. Art. 2876. — If several persons have jointly borrowed the same object, they are bound for it in soUdo to the lender. Section III. — Of the Obligations of tlic Lender for Use. Art. 2877. — The lender cannot take back the thing lent, but after the time agreed on ; or, if no agreement has been entered into in that respect, after it has been employed to the use for which it was borrowed. Art. 2878. — Nevertheless, if, during the interval, or before the bor- rower has done with the thing, the lender be in an urgent and unfore- seen need of this thing, the judge may, according to circumstances, com- pel the borrower to return it to him. Art. 2879. — If, during the loan, the borrower was obliged for the preservation of the thing to go to some extraordinary expense necessary, and so urgent that he could not give notice of the same to the lender, the lender shall be bound to reimburse him for the same. Art. 2880. — When the thing lent has defects of such a nature that it may occasion injury to the person who uses it, the lender is answer- able for the consequences, if he knew the defects, and did not apprise the borrower of them. CHAPTER II. OF THE LOAN FOR CONSUMPTION, OR MUTUUM. Section I. — Of the Nature of the Loan for Consumption. Art. 2881. — The loan for consumption is an agreement by which one person delivers to another, a certain quantity of things which are consumed by the use, under the obligation, by the borrower, to return to him as much of the same kind and quality. Art. 2882. — By the effect of this loan the borrower becomes the owner of the thing lent, and if it be destroyed, in whatever manner the same may have happened, the loss is on his account. Art. 2883. — Any thing whicli is such, that it may bo returned of the same kind and quality, may be given as a loan for consumption ; but things which, although of the same kind, still may differ from each other in quality, as beasts and the like, cannot be lent after this manner. Art. 2884. — The obligation which results from a loan of money, can never be more than the numerical sum mentioned in the contract. 376 OF LOAN. If there has been augmentation or diminution in the value of the specie before the time of the payment, the debtor is bound to return nothing more than the numerical sum which was lent to him, in such specie as has currency at the time of the payment. Art. 2885. — The rule in the preceding article does not obtain, if the loan has been nxade in bullion. Art. 288G. — If provisions have been lent, whatever be the increase or diminution of their price, the debtor is still bound to retiurn the same quantity and quality, and he is bound to return no more. Section II. — Of the Obligations of the Lender for Consumption. Art. 2887. — In the loan for consumption, the lender is subject to the responsibility above established with respect to the vices of the thing lent for use. Art. 2888. — The lender cannot claim the thing lent before the time agreed on. If no term has been agreed on for the restitution, the judge may grant a delay according to circumstances. Art. 2889. — No delay shall be granted, if the loan has been stipu- lated as exigible at will. Art. 2890. — If it was agreed only that the borrower should pay when he could, or when he should have the means so to do, he ought to be sentenced to pay, as soon as he appears to be able so to do. Section III. — Of the Engagements of the Borrower for Consump- tion. Art. 2891. — The borrower is obliged to restore the thing lent in the same quantity and condition, and at the place and time agreed on. If no spot has been fixed on for the restitution, it must be made at the place where the loan was made. Art. 2892. — If it be impossible for him to fulfil his engagement, he is bound to pay the value of the things lent, taking into consideration the time and place when they ought to have been returned, according to the agreement. If the time and place have not been regulated, the payment is made according to the price which the thing is worth at the time and place where the demand is made. 4 R. 346. Art. 2893. — If the borrower does not return the things lent, or their value at the time appointed, he shall be bound to pay interest from the time that a judicial demand of it has been made. 6 L. 762 ; 4 E. 846. 377 OF LOAN. 37; CHAPTER III. OF LOAN AND INTEREST. Art. 2894. — It is lawful to stipulate interest for a simple loan, •whetbcr of money or other movable things. 6 L. 762. Art. 2895. — Interest is either legal or conventional. 19 L. 461. Legal interest is fixed at the following rates, to wit : At five per cent, on all sums which are the object of a judicial de- mand, whence this is called judicial interest ; 2 R. 161?, 171 ; 3 A. 157, 697 ; See 2 L. 62 ; 10 R. 174. And on sums discounted by banks, at the rate established by their charters. 2L. 60; 10 E. 174. The amount of the conventional interest cannot exceed ten per cent. The same must be fixed in writing ; and testimonial proof of it is not admitted in any case. 7 L. 520 ; 13 L. 101 ; 1 A. 26.'); See 12 M. 21; 7 L. 10.5; 3 R. 251 ; 8R. 4S8; 10 R 118- 2 A S76- 5 A. 50S; See also 6 R. 216; 4 A. 78; 9 R. 194; 12 R. 173, See 1925. ' " ' Stat. m.h February, 1844, p. 15.—^ 1. That article two thousand eight hundred and ninety-five of the Civil Code of Louisiana, be so amended that the amount of conventional interest shall in no case exceed eight per cent., under pain of forfeiture of the entire interest so con- tracted. ^ 2. If any person hereafter shall pay on any contract entered into after the passage of this act, a higher rate of interest than the above, as discount or otherwise, the same may be sued for and recovered within twelve months from the time of sucli payment. Art. 2896. — The release of the principal, without any reserve as to interest, raises the presumption that it also has been paid, and operates a release of it. 378 OF DEPOSIT AND SEQUESTRATION. TITLE XIII. OF DEPOSIT AND SEQUESTRATION. CHAPTER I. OF DEPOSIT IN GENERAL, AND OF ITS DIVERS KINDS. Art. 2S97. — A deposit, in general, is an act bj which a person ro- ceives the property of another, binding himself to preserve it and return it in kind. 1 K. 21. Art. 2898. — There are two species of deposit : That properly so called, and sequestration. See 293-t. CHAPTEll IT. OF THE DEFOSIT FROrERLV SO CALLED. Section I. — Of the Nature and Essence of the Contract of Deposit. Art. 2899. — The object of a deposit must be properly some movable thing, but slaves also may be deposited. 6 A. 362. Art. 2900. — It is essentially gratuitous. If the person, with whom the deposit is made, receive a compensation, it is no longer a de- posit, but a hiring. Art. 2901. — The deposit is perfected only by the delivery, real or fictitious, of the thing deposited. The fictitious delivery is sufficient, when the depositary is already possessed, in some other right, of the thing agreed to be left in deposit with him. Art. 2902. — The deposit is voluntary or necessary. Section II. — Of Yohintary Deposit. Art. 2903. — The voluntary deposit takes place by the mutual con. sent of the person making the deposit and the person receiving it. Art. 2904. — The voluntary deposit can only be regularly made by the owner of the thing deposited, or with his consent, expressed or im- plied. Consent is implied, when the owner has carried or sent the thing to the depositary, and the latter, knowing that the thing had been sent, has not refused to receive it. Art. 2905. — The owner, without whose knowledge the deposit has been made, may reclaim his property in the hands of the depositary, who 379 OF DEPOSIT AND SEQUESTRATION. 379 cannot refuse to deliver it, but must call in the person who made the deposit, that he may oppose the restitution. Art. 2906. — The voluntary deposit can only take place between per- sons capable of contracting. Nevertheless, if a person capable of contracting accept a deposit from a person who is incapable, he incurs all the obligations of a real depositary, and may be sued by the tutor or curator of the person who has made the deposit. Art. 2907. — If the deposit was made by a person capable of con- tracting, to another person not having that capacity, he who has made the deposit has only an action of claim for the thing, as long as it re- mains in the hands of the depositai-y, or an action of restitution for the amount of the benefit the depositary has derived from it. Section III. — Of the Obligations of the Depositai^y. AuT" 2908. — The depositary is bound to use the same diligence in preserving the deposit, that he uses in preserving his own property. 17 L. 5S2 ; See 17 L. 570. Art. 2909. — The provision in the preceding article is to be rigor- ously enforced : 1. Where the deposit has been made by the request of the deposit- ary ; 2. If it has been agreed that he shall have a reward for preserving the deposit ; 3. If the deposit was made solely for his advantage ; 4. If it has been expressly agreed that the depositary should be an- swerable for all neglects. Art. 2910. — The depositary is not answerable, in any case, for acci- dents produced by overpowering force, unless he has delayed improperly to restore the deposit. Art. 291 1. — The depositary cannot make use of the thing deposited without the express or implied permission of the depositor. Art. 2912. — If the thing be of the nature of those which are con- sumed by use, and the depositor has given permission to tlie depositary to use them, the contract is no longer a deposit, but a loan for consump- tion, and becomes subject to the rules which govern that contract. Art. 2913. — If the things deposited be slaves or animals, the de- positary may employ them for the benefit of the depositor, unless the latter has directed otherwise. Art. 2914. — The depositary should not seek to know what are the things confided to him, if they were shut up in a box, or in a sealed cover. Art. 2915. — The depositary ought to restore the precise object which he received. Thus a deposit of coined money must be restored in the same specie in which it was made, whether it has sustained an increase or diminution of value. 17 L. 581; 1 R.2]. Art. 2916. — The depositary is only bound to restore the thine in 380 OF DEPOSIT AND SEQUESTRATION. the state in which it is at the moment of restitution. Deteriorations not effected by any act of his, are to the loss of the depositor. Art. 2917. — A depositary, from whom the thing deposited has been taken away by force, and who has received a price, or any thing in its stead, must restore what he has received in exchange. Art. 2918. — The heirs of a depositary, who has sold bona fide a thing, which he knew not to be a deposit, is bound only to restore the price which ho has received, or to make over his claim against the pur- chaser, if the price be not paid. AitT. 2919. — If the thing deposited has been productiA'c, and the proceeds have been received by the depositary, he is bound to restore them. He owes no interest for the money deposited in his hands, ex- cept from the day on which he became a defaulter, by delaying to restore it. 6 L. 762. Art. 2920. — The depositary must restore the thing deposited only to him who delivered it, or in whose name the deposit was made, or who was pointed out to receive it. Art. 2921. — He cannot require him who made the deposit, to prove that he was the owner of the thing. Yet if he discovers that the thing was stolen, and who the owner of it is, he must give him notice of the deposit, requiring him to claim within due time. If the owner, having received due notice, neglects to claim the deposit, the depositary is fully exonerated on returning it to the person from whom he received it. Art. 2922. — If the person who made the deposit be deceased, the thing deposited can be restored properly to his heir ; if there be several heirs, it must be delivered to each of them for his respective part and portion, unless the thing deposited be indivisible, in which case they must agree among themselves. If the depositor has changed condition, as if a woman marries, or a person of full age falls under interdiction, the deposit can be restored only to the person who has the administration of the rights and proper- ty of the depositor. Art. 2923. — If the deposit has been made by a tutor, a husband, or by any other administrator, it can be restored, after the function of that administrator has ceased, only to him whom he represented. 1 li. 21. Art. 2924. — When the contract specifies a place where the deposit is to be restored, it must be delivered at that place, but the expense of conveyance to the place of delivery must be borne by the depositor. Art. 2925. — If the contract does not specify the place where the deposit must be restored, it shall be restored at the place where such deposit has been made. Art. 2926. — The deposit nmst be restored to the depositor as soon as he demands it, even though the contract may have specified the time for its being restored, unless there be, in the hands of the depositary, an attachment on the property, or an opposition made on the owner. 6 L. 32 ; 2 A. 55S, 5S6. Art. 2927. — The depositary cannot witlihold the thing deposited on pretence of a debt due to him from the depositor on any account dis- tinct from the deposit, o" by way of off-set. 381 OF DEPOSIT AND SEQUESTRATION. 381 But he may retain tlie deposit until his advances are repaid, as well as any other claims which he may have, arising from the deposit. 2 A. 24 ; 6 A. 46. Art. 2928. — When several persons have received the same object in deposit, each of them is bound to restore the whole. Art. 2929. — The unfaithful depositary is not admitted to the bene- fit of a surrender. Art. 2930. — All the obligations of the depositary cease on his discovering and proving that he himself is the owner of the thing de- posited. Section IV. — Of the OhJigatAons and Rights of Jiim by ivhom the De- posit has been made. Art. 2931. — lie who has made a deposit is bound to reimburse the depositary the money he has advanced for the safe keeping of the thing, and to indemnify him for all that the deposit has cost him. He is to indemnify the depositai'y for the losses which the thing de- posited may have occasioned him. Art. 2932. — The depositor has a right to reclaim the thing dejiosit- ed, when it exists in kind in the hands of the depositary or his assigns. Art. 2933. — If the depositary or his assigns have disposed of the thing, and the price remains due, the depositor has a right to it in pre- ference to any other creditor of the depositary. 1 E. 21. Art. 2934. — The distinction formerly established by law between the perfect and the imperfect deposit, is abolished. The only real deposit is that, where the depositary receives a thing to be preserved in kind, without the power of using it, and on the con- dition that he is to restore the, identical object. 2 A. 24 ; See 2S9S. CHAPTER III. OF THE NECESSARY DEPOSIT. Art. 2935. — The necessary deposit is that which has been compel- led by some accident, such as fire, falling down of a house, pillage, ship- wreck, or other casualty. The deposition on oath, or affirmation of a single competent or cre- dible witness, may be sufficient to prove a necessary deposit, even when the amount of the thing deposited exceeds five hundred dollars. Art. 2936. — An innkeeper is responsible as depositary, for the cff'ects brought by travellers who lodge at his house; the deposit of such effects is considered as a necessary deposit. Art. 2937. — An innkeeper is responsible for the effects brought by travellers, even though they were not delivered into his per.sonal care, provided however, they were delivered to a servant or person in his em- ployment. 382 OF DEPOSIT AND SEQUESTRATION. Art. 2938. — lie is responsible, if any of the eflFects be stolen ot damaged, either by his servants or agents, or by strangers going and coming in the inn. 1 R. 410. Art. 2939. — He is not responsible for what is stolen by force and arms, or with exterior breaking open of doors, or by any other extraor- dinary violence. 1 R. 410. Art. 2940. — The deposition on oath or affirmation of a single com- petent and credible witness as to the deposit at inns, may be admitted as a good proof, even when the value of the thing so deposited exceeds five hundred dollars; but the judge must admit this kind of proof, in that case, with circumspection, according to the circumstances of the fact, and the condition of the parties. CHAPTER IV. OF SEQUESTRATION. Section I. — Of its different Species. Art. 2941. — Sequestration is either conventional or ordered by the judge. Section II. — Of the Conventional Sequestration. Art. 2942. — Sequestration is a kind of deposit, which two or more persons, engaged in litigation about any thing, make of the thing in contest to an indifferent person, who binds himself to restore it, Avhen the issue is decided, to the party to whom it is adjudged to belong. The depositary in this case is called the sequestrator. 1 A.222; 2 A.CGG; SeolM. T9; 6N. S. 4T3; 6L. 542; 19 L. 91 ; 2 K. 150. Art. 2943. — A sequestration may be not gratuitous, and then it is rather a contract of hiring than of deposit. Art. 2944. — When it is gratuitous, it is a real contract of deposit, subject to all the rules which apply to that contract, save the differences hereafter explained. Art. 2945. — A sequestration has this difference from a deposit, that it may have for its object, not only movables and slaves, but also real property. Art. 2946. — The depositary, under this title, is not to restore the thing deposited, till after the decision of the suit, and then he must re- store it to the party to whom it is adjudged. 17 L. 24," 581. Art. 2947. — He cannot even till then exonerate himself from the care of the thing sequestered in his hands, unless for some cause render- ing it indispensable that he resign his trust. In that case he can deliver up the thing only to a person agreed upon by the parties concerned ; and in case they do not agree, he must cite them to have a new sequestrator appointed. 383 OF ALEATORY CONTRACTS. 383 Section III. — Of the Judicial Sequestration or Deposit. Art. 2948. — The judicial deposit is that which is made in conse- quence of an order or judgment rendered by a judge in the cases provided for the laws regulating judicial proceedings. 1 A. 222 ; 2 A. GG6. Art. 2949.— The appointment of a judicial guardian produces, be- tween the person seizing and the guardian, reciprocal obligations. The guardian must use, for the preservation of the effects seized, the care of a prudent father of a family ; he must produce them either for the dis- charge of the person who has seized them for sale, or to tlie person against whom the execution was levied, in case the seizure be raised. The obligation of the party that has seized the property, consists in paying the guardian his legal fees. IT L. 24, 5T8, 5S2; 7 R. 82 ; 10 E. 14T. Art. 2950. — The judicial sequestration is confided to the public of- ficer whom the law provides to execute the orders of the judge. This officer is subject to all the obligations imposed in the case of conventional sequestration. 17L.24. TITLE XIV. OF ALEATORY CONTRACTS. Art. 2951. — The aleatory contract is a mutual agreement, of which the effects, with respect both to the advantages and losses, whether to all the parties or to one or more of them, depend on an uncertain event. Art. 2952.- -The law grants no action for the payment of what has beeii won at gaming or by a bet, except for games tending to promote skill in the use of arms, sucli as the exercise of gun, foot, horse, and chariot racing. And as to such games, the judge may reject the demand, wlicn the sum appears to him excessive. Art. 2953. — In all cases in which the law refuses an action to tho winner, it also refuses to suffer the loser to reclaim what he has volun- tarily paid, unless there have been, on the part of the winner, fraud, de- ceit, or swindling. 8ee4N. 8, 84; 1 A. 176. 384 OF MANDATR TITLE XV. OF il A X D A T E . CHAPTER I. OF THE NATURE AND FORM OF MANDATES. Art. 2954. — A procuration or letter of attorney is an act by which one pcr.son gives power to another to transact for him and in his name, one or several affairs. Art. 2955. — The mandate may take place in five different manners : for the interest of the person granting it alone ; for tlic joint interest of both parties; for the interest of a third person ; for the interest of such third person and that of the part}'^ granting it; and finally, for the inter- est of the mandatary and a third person. Art. 295G. — The object of the mandate must be lawful, and the power conferred must be one which the principal himself has a right to exercise. Art. 2957. — The contract of mandate is completed only by the ac- ceptance of the mandatary. Art. 2958. — A power of attorney may be accepted expressly in the act itself, or by a posterior act. 19 L. 225. It may also be accepted tacitly ; and this tacit acceptance is inferred, either from the mandatary acting under it, or from his keeping silence when the act containing his appointment, is transmitted to him. 11 L. 2S8, 294. Art. 2959. — If the proxy or attorney in fact pleads tliat he has not accepted or acted under the power, it is incumbent on the principal to prove he has. Art. 2960. — The procuration is gratuitous unless there have been a contrary agreement. 10 L. 603. Art. 290 1. — A power of attorney may be given, either by a public act or by a writing under private signature, even by letter. It may also be given verbally, but of thi.s testimonial proof is ad- mitted only conformably to the title of conventional obligations. 4 L. 1C9 ; Seo 2 L. 696 ; 8 R. 2;36 ; 1 A. 72. Art. 29G2. — A blank may be left for the name of the attorney in fact in the letter of attorney. In that case, the bearer of it is deemed the person empowered. Art. 29G3. — It may be either general for all affairs, or special for one affair alone. Art. 2964. — It may vest an indefinite power to do whatever may appear conducive to the interest of the principal, or it may restrict the power given to the doing of what is specified in the procuration. Art. 2965. — A mandate, conceived in general terms, confers only a power of administration. lOM. CT9;10K. 43; 12 K. 653. 385 OF MANDATE. 335 If it be necessary to alienate or give a mortgage, or do any other act of ownership, the power must be express. Stat. ISth April, 1853, No. 126, p. 89.— It sliall be lawful for any married woman having a mortgage or privilege on the property of her husband, to appoint one or more agents w'ith power in her behalf, during her temporary or permanent absence from the State, to intervene in any contract of mortgage or sale, made by the husband, and sign in her be- half such renunciation of said mortgage or privilege, as the wife herself might do, if personally present, and the said power may be cither gene- ral or special, and may be executed in the United States, before any judge or justice of the peace, or notary, or commissioner of this State, and in foreign countries before any consul, vice consul, or consular or commercial agent of the United States. 6E. 142; 2A. S90;4A. 229. Art. 2966. — Thus the power must be express and special for the following purposes : To sell or to buy ; iOM. 679; 7N. S. 244; 1 K. 303; 1 A. 72; 4 A. 220 ; CA.52S; See 2 L. 596; CL. 591; Sn. 236, See 2415. To encumber or hypothecate ; 10 R. 43, 61. To accept or reject a succession ; To contract a loan or acknowledge a debt. 3 L. 199 ; 4 L. 310 ; 9 R. 293 ; 12 E. 221, 653. To draw or indorse bills of exchange or promissory notes ; 1 R. 303 ; 6 K. 13 ; 1 A. 457 ; 2 A. 353, 294, 772 , See 1 N. S. 608 ; 6 L. 590. To compromise or refer a matter to arbitration ; 2N. S. 292; ICL. 51, 54; 2 R. 1. To make a transaction in matters of litigation ; and in general where things to be done are not merely acts of administration, or such as fa- cilitate such acts ; 8L. 569; 13L. 4S4; 17^4.5; 2 A. 890; See 4 T. 32 ; IS L. 332; 2 R. 513; 5R. 172; 6 11.70,127.255: 8 K. 236; 12 R. 221, 243; 11 R. 95, 497; 2 A. 772; 5 A. 700. Art. 2967. — A power to compromise on a matter in litigation does not include that of submitting or referring to arbitrators. 5 N. 8. 669. Art. 2908. — A power to receive includes that of giving a receipt fa acquittance. Art. 29G9. — Powers granted to persons who exercise a profession, or fulfil certain functions, of doing any business in the ordinary course of affairs to which they are devoted, need not be specified, but are in- ferred from the functions which these mandataries exercise. Art. 2970. — Women and emancipated minors may be appointed at- torneys ; but, in the case of a minor, the person appointing him has no action against him, except according to the general rules relative to the obligations of minors; and in the case of a married woman, who has ac- cepted the power without authority from her husband, she can only be sued in the manner specified under the title of marriage contract and the respective rights of married persons. 25 586 OF MANDATE. CHAPTER 11. OF THE OBLIGATIONS OF A PERSON ACTING UNDER A TOWER OF ATTORNEY. Art. 2971. — The attorney in fact is bound to discliarge the functions of the procuration, as long as he continues to hold it, and is responsible to his principal for the damages that may result from the non-perform- ance of his duty. He is bound even to complete a thing which had been commenced at the time of the principal's death, if any danger result from delay. 9 R. 39G ; 10 R. 4S1 ; 11 R. 81 ; 12 K. 423 ; See 2'.t72. Art. 2972. — The attorney is responsible, not only for unfaithfulness in his management, but also for his tault or neglect. Nevertheless, the responsibility with respect to faults, is enforced less rigorously against the mandatary acting gratuitously, than against him who receives a reward. 7 M. 4j way of off-set, what the principal owes him, provided the debt be liquidated. 8 A. 9S. Art. 2993. — The attorney must also be compensated for such losses as he has sustained on occasion of the management of his principal's affairs, when he cannot be reproached with imprudence. Art. 2994. — If the attorney has advanced any sum of money for the affairs of the principal, the latter owes the interest of it, from the day on which the advance is proved to have been made. 6 L. 7G2 ; 2 A, "79, 874 Art. 2995. — If the attorney has been empowered by several per- sons for an affair common to them, every one of these persons shall be bound jointly and severally in solldo to him for all the effects of the procuration. CHAPTER V. HOW THE PROCURATION EXPIRES. Art. 2996. — The procuration expires : By the revocation of the attorney ; By the attorney's renunciation of the power ; By the change of condition of the principal ; By the death, seclusion, interdiction or failure of the agent or prin cipal. 15 L. 443. Art. 2997. — The principal may revoke his power of attorney when- ever he thinks proper, and, if necessary, compel the agent to deliver up the written instrument containing it, if it be an act under private sig- nature. 1 A. 401. 389 OF SURETYSHIP. 389 • Art. 299S. — If the principal only notified his revocation to the attorney, and not to the persons with whom he has empowered the at torney to transact for him. such persons shall always have the right of action against the principal to compel him to execute or ratify what has been done by the attorney ; the principal has, however, a right of action against the attorney. 1 A. 401. Art. 2999. — The appointment of a new attorney to transact the same business produces the same effect as a revocation of the first, from the day such appointment is notified to the first attorney. 1 A. 401. Art. 3000. — The attorney may renounce his power of attorney, by notifying to the principal his renunciation. Nevertheless, if this renunciation be prejudical to the principal, he ought to be indemnified by the agent, unless the latter should be so situated that he cannot continue the agency without considerable injurj'. Art. 3001. — If the attorney, being ignorant of death, or of the ces- sation of the rights of his principal, should continue under his power of attorney, the transactions done by him, during this state of ignorance, are considered as valid. Art. 3002. — In the cases above enumerated, the engagements of the agent are carried into effect in favor of third persons acting in good faith. Art. 3003. — In case of the death of the attorney, his heir ought to inform the principal of it ; and, in the mean time, attend to what may be requisite for the interest of the principal. TITLE XVI. OF SURETYSHIP. CHAPTER I. OF THE NATURE AND EXTENT OF SURETYSIlir. Art. 3004. — Suretyship is an accessary promise by which a person binds liimself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not. 5 N. S. 562 ; 14 L. 509 ; 12 K. 378 ; 1 A. 122. Art. 300.3. — Suretyship can only be given for the performance of valid contracts. A man may, however, become suret}- for an obligation of which the principal debtor might get a discliargc by an exception mere- ly personal to him, such as that of being a minor, or a married woman. Art. 300G. — The suretyship cannot exceed what may be due by the debtor, nor be contracted under more onerous conditions. It may be contracted for a part of the debt only, or under more fa- iTorablc conditions. 390 OF SURETYSHIP. The suretyship which exceeds the debt, or which is contracted under more onerous conditions shall not be void, but shall be reduced to the conditions of the principal obliejation. 1 K. 449 ; 10 K. 412 ; IS^^l'v. 571 ; 1 A. 254; 2 A. 160 ; 8 A. 294. Art. 3007. — A man may be surety without the order or even the knowledge of the person for whom he becomes surety. Surety may also be given, not only for the principal debtor, but also for the person who has been his security. Art. 3008. — Suretyship cannot be presumed; it ought to be expresed, and is to be restrained within the limits intended by the contract. 8 M. 14 ; 3 L. 503 ; 3 E. 3T3 ; 5 E. 70 ; 12 E. 378 ; 1 A. 62 ; 3 A. 205, 577," C35 ; See 5 N. S. 562 ; 7 L. 103 ; 7 E. 13 ; 11 E. 390 ; 12 E. 227. Art. 3009. — A general and indefinite suretyship extends to all the accessories of the principal debt, and even to the costs. 3 L. 378. Art. 3010. — Surety does not operate a mortgage on the property, unless there has been an express agreement. 3 E. 342 ; 1 A. 62. Art. 3011. — The debtor obliged to furnish security must oiFer a person able to contract, of property sufficient to answer for the amount of the obligation, and whose domicil is in the jurisdiction of the court where it is to be given. 1 N. S. 276 ; 12 L. 93 ; 14 L. 245 ; 17 L. 43S ; 2 E. 451 ; 3 E. 413 ; 1 A. 62 ; 3 A. 42 ; 6 A. 326. Art. 3012. — 'When the security received by the creditor, either vo- luntarily or by the direction of law, becomes insolvent, his place should be supplied by another. An exception to this rule takes place, only where by the agreement the creditor has required that a certain person shall be given as secu- rity. 3 A. 865. Art. 3013. — The obligations of sureties descend to their heirs. CHAPTER II. OF THE EFFECTS OF SURETYSHIP. Section I. — Of the Effects of Suretyship hrticircn the Creditor and the Surety. Art. 3014. — The obligation of the surety towards the creditor, is to pay him in case the debtor should not himself satisfy the debt, and the property of such debtor is to be previously discussed or seized, un- less the security should have renounced the plea of discussion, or should be bound in solido jointly Avith the debtor, in which case the effects of his engagement are to be regulated by the same principles which have been established for debtors in solido. 1 A. 254 ; 2 A. 830 ; 8 A. 365. See 2 M. 330 ; 5 M. 366 ; 11 M. 434 ; 1 N. S. 478 ; 3 E. .258. Art. 3015. — The creditor is not bound to discuss the principal debtor's property, unless he should be required to do so by the security, on the institution of proceedings against the latter. 6 M. 866, 674 ; 6 M. 562 , 9 M. 385 ; 12 M. 378 ; 1 N. S. 478 ; 14 L. 165 ; 1 R, 15 ; 5 A. 689. 391 OF SURETYSHIP. 391 Art. 3016. — The surety wlao does require the discussion, is bound ' to point out to the creditor the property of the principal debtor, and furnish a sufficient sum to have the discussion carried i".ito effect. He must not point out the property of the principal debtor situated out of the State, nor the property which is in litigation, nor that which is mortgaged for debt, and no longer in the possession of the debtor. 7 N. S. 195; 13 L. 274; 1 R. 15; 3 A. 674. Art. 3017. — When the security has pointed out property in the manner directed in the foregoing article, and has furnished a sufficient sum to have the discussion effected, the creditor is, to the amount of property pointed out, responsible to the security for the insolvency of the principal debtor, provided it has occurred through remissness in commencing proceedings. 3 A. G74. Art. 3018. — When several persons have become sureties for the same debt, each of them is individually liable for the whole of the debt in case of insolvency of any of them. Any one of tliem may, however, demand that the creditor should divide his action, by reducing his demand to the amount of the share and portion due by each surety, unless the sureties have renounced to the benefit of division. 15 L. 50 ; 4 A. 273. Art. 3019. — A creditor can by no means claim the whole sum from the surety who applied for a division, when the other sureties have be- come insolvent since the time of that application. The same thing takes place, if the creditor has himself voluntarily divided his actions 15 L. 50 ; 4 A. 273. Art. 3020. — The creditor may include in the same suit both the debtor and the security. If he obtains judgment against both, the se- curity, who is entitled to the benefit of discussion, may insist that the judgment shall be first executed against the principal debtor. 1 K. 15. Section II. — Of the Effects of Suretj/skip bctivcen the Debtor and tht Surety. Art. 3021. — The security, who has paid the debt, has his remedy against the principal debtor, wliether the surety has been given with or without the knowledge of the debtor. This remedy takes place both for the principal and interest, and for the costs which the surety may have been sentenced to pay; but with regard to the costs the remedy of the security begins only from tlie day he has given notice to the principal debtor, that a suit was commenced against him. 19 L. 885. Art. 3022. — With regard to that remedy, the security has the same riglit of action and the same privilege of subrogation, which the law grants to joint co-debtors. Art. 3023. — When there exist several principal joint debtors for the same debt, he who became a security to them all, has his remedy against each of them for the whole amount of what he may have paid. 392 OF SURETYSHIP. Art. 3024. — The surety has no rcmed}' against the principal debtor, who has paid a second time for want of being warned by the surety of the payment made by him. But the surety may have his action against the creditor for his reimbursement. Art. 3025. — When the security has paid without being sued, and without informing the principal debtor, he shall have no recourse ao-ainst the latter, provided that, at the time of payment, the debtor was in possession of such means as would have enabled him to have the debt declared extinct ; but in this case the security has recourse to the creditor for restitution. 13 L. 142. Art. 3026. — A security may, even before making any payment, bring a suit against the debtor to be indemnified by him : 1. When there exists a lawsuit against him for payment; 13 L. 142. 2. When the debtor has become a bankrupt, or is in a state of in- solvency ; 15 L. 351. 3. When the debtor was bound to discharge him within a certain time : 16 L. 136. 4. When the debt has been due by the expiration of the term for which it was contracted ; 5. At the expiration of ten years, when the principal obligation is of a nature to last a longer time, unless the principal obligation, such as that of guardianship, be of a nature not to be extinguished before a de- terminate time. 2 A. 469 ; See 5 M. 6T4 ; 10 M. 196 ; 3 N. S. 5T5 ; 16 L. 133 ; 19 L. 8S5 ; 4 E. 422 ; 3 A. 681. Section III. — Of the Effects of Suretyship hctiocen the Sureties. Ar-T. 3027. — When several persons have been sureties for the same debtor and for the same debt, the surety, who has satisfied the debt, has his remedy against the other sureties, in proportion to the share of each ; but this remedy takes place only when such person has paid in conse- quence of a lawsuit instituted against him. 2 A. 334. CHAPTER III. OF THE EXTINCTION OF SURETYSHIP. Art. 3028. — The obligation, which results from a suretyship, is ex- tinguished by all the different modes in which other obligations may be extinguished ; but the confusion which results in case the principal debtor or his surety should become heirs oiie to the other, does not ex- tinguish the action of the creditor against the person who has become the security of the security. Art. 3029. — The security may oppose to the creditor all the excep- tions belonging to the principal debtor, and which are inherent to the 393 OF SURETYSHIP. 393 debt ; but he cannot oppose exceptions which are personal to the debtor. 14 L. 1S3 ; 2 A. 128, IGO, 591. Art. 3030. — The surety is discharged when, by the act of the cre- ditor, the subrogation to his rights, mortgages and privileges, can no longer be operated in favor of the surety. 6 L. 514 ; 1 R. 212 ; 12 R. 206 ; 2 A. ISS, 42T. 940 ; 3 A. 674 ; Seo 3 N. S. 59S ; 3 L. 352 : 9 L. 12 ; 1 R. 528 ; 4 K. 506 ; 6 R. 47 ; 5 A. 266. Art. 3031. — The voluntary acceptance, on the part of the creditor, of an immovable or any other property, in payment of the principal debt, is a full discharge of the surety, even in case the creditor should be afterwards evicted from the property so accepted. Art. 3032. — The prolongation of the term granted to the princi- pal debtor without the consent of the surety, operates a discharge of the latter. JO R. 412 ; 11 R. 38 ; 1 A. 192 : 2 A. 940 ; Seo 4 M. 639 ; 3 N. S. 598 ; 7 N. S. 13 ; 8 N. S. 27S ; 4 t 294, 407 ; 16 L. 218 ; 18 L. 470; 19 L. 211 ; 3 R. 299 ; 4R. 276: 5 R. 249 ; 6 R. 899 : 9R. 240;J R. 33 ; 1 A. 192. CHAPTER IV. OF THE LEGAL AND JUDICIAL SURETIES. Art. 3033. — Whenever a person is bound by law, or by a judg- ment, to give a surety, he must present one who has the quaiifications required in article 3011. 3 A. 619; 6 A. 826; See 3011. Art. 3034. — The person, who can give no security, is admitted to give a pledge or other satisfaction sufficient to secure the debt, provided that the thing given in pledge may be kept without difficulty or risk. He may also deposit in the hands of the public officer, whose duty it is to receive the surety, the sum in which he is required to give it. 2 A. 132. Art. 3035. — A judicial surety cannot demand the discussion of the property of the principal debtor. 12M. 79; 3N. S. 575 ; 6 N. S. 495; 9 L. 227; 19 L. 497; 9 R. 45; 1 A. 122; Soo 10 R. 130, 191 ; V R. 266. Art. 303G. — The person, who has become the surety of the judicial surety, cannot demand the discussion of the property of the principal debtor, nor of the surety. Art. 3037. — The effects of judicial surety are determined in the laws regulating judicial proceedings. 1 A.122; 3 A, ST. 394 OF TRANSACTION OR COMPROMISE, TITLE XVII. OF TRANSACTION OR COMPROMISE. Art. 3038. — A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a law- suit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gain- ing, balanced by the danger of losing. This contract must be reduced to writing. 3 A. 94 ; 6 A. 52S. Art. 3039. — A man to transact, must have the capacity to dispose of the things included in the transaction. The tutor or curator of a minor or of a person interdicted or absent, cannot make a transaction without beinoj authorized thereto by the judge. Art. 3040. — Transactions regulate only tin? differences which ap- pear clearly to be comprehended in them by the intention of the par- ties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed ; and they do not extend to differences which the parties never intended to include in them. The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises. 1 E. 307. Art. 3041. — If he who has transacted concerning a right wliich he had in his own person, acquires afterwards a like right which belonged to another, the transaction cannot be prejudicial to his new right. Art. 3042. — One may add to a transaction the stipulation of a penalty against the party who fails to perform it ; and in this case the non-performance of what has been agreed on, gives a right to exact the penalty according to the tenor of the agreement, and pursuant to the rules recited in the title of conventional obligations. Art. 3043. — The creditor who transacts with the surety of his debtor, may discharge the surety only, and the transaction will not di- minish his right against the debtor. But if it is with the debtor him- self that he has transacted, the surety will likewise have the benefit of the transaction, because his obligation is only an accessory to that of the principal debtor. Art. 3044. — A transaction made by one of the interested parties, is not binding for the others, and cannot be opposed by them. Art. 3045. — Transactions have, between the interested parties, a force equal to the authority of things adjudged. They cannot be at- tacked on account of any error in law or any lesion. Uut an error in 3alculatiou may always be corrected. 7L. IT; 3 A. 94; 5 A. C2T. 395 OF RESPITE. 395 Art. 3046. — A transaction may be rescinded notwithstanding, wben- ever there exists an error in the person or on the matter in dispute. It may likewise be rescinded in the cases where there exists fraud or vio- lence. 4L. 461; 1 A. 320; 3 A. 492. Art. 3047. — A transaction may also be rescinded, Avheu it has been made in execution of a title which is null, unless the parties have ex- pressly compromised on the nullity. 1 A. 320. Art. 3048. — A compromise entered into on documents which have since been found false, is null i)i toto. , 4 L. 461 ; 4 A. 44. Art. 3049. — A transaction respecting a suit terminated by a judg- ment, which has acquired the force of the tiling adjudged, and of which the parties, or either of them, was ignorant, is null. If, however, the judgment is one from Avhich there could be an appeal, the transaction is valid. Art. 3050. — When the parties have compromised generally on all the differences, which they might have had with one another, the titles which they then know nothing of, and which were afterwards discovered, are not a cause of rescinding the transaction, unless they have been kept concealed on purpose by the deed of one of the parties. But tlie transaction becomes void, if it relates only to an object, on which it is proved by the titles newly discovered, that one of the parties has no right at all. T L. 85. TITLE X7III. OF RESPITE. Art. 3051. — A respite is an act by which a debtor, who is unable to satisfy his debts at the moment, transacts with his creditors, and ob- tains from them time or delay for the payment of the sums which he owes to them. Akt. 3052. — The respite is either voluntary or forced. It is voluntary, when all the creditors consent to the proposal, which the debtor makes to pay in a limited time tlic whole or a part of his debt. It is forced, when a part of the creditors refuse to accept the debtor's proposal, and when the latter is obliged to compel them by judicial authority to consent to what the others have determined in the cases directed by law. Art. 3053. — The forced respite takes place when the creditors do not all agree, for then the opinion of the three-fourths in number and in amount prevails over that of the creditors forming the other fourth, and the judge shall approve such opinion, and it shall be binding ou the Other creditors who did not agree to it. 396 OF RESPITE. Stat. Tith April, 1843, p. 51. — Tlie insolvent laws of said State, ic force at the date of the passage of the last bankrupt law of the United States, be and the same are hereby declared to be in full force and virtue : Provided, that the article 3053 of the Louisiana Code be so amended that the opinion of a majority of the creditors, in number and amount, shall prevail. 9 M. 390 ; 3 N. S. 446, 506 ; 8 L. 4G7. Art. 3054. — But in order that a respite may produce that effect, it is necessary : 1. That the debtor should deposit in the office of the clerk of the court of his domicil, to whom he presents his petitioft for calling his creditors, a true and exact schedule, sworn to by him, of all his mova- ble and immovable property, as well as of his debts ; 2. That a meeting of the creditors of such debtor, domiciliated in the State, shall be called on a certain day at the office of a notary pub- lic, by order of the judge, at which meeting the creditors shall be sum- moned to attend by process issued from the court, if the creditors live within the parish where the meeting shall take place, or by letters ad- dressed to them by the notary, if they are not residing in the parish ; 3. That the creditors be ordered to attend in ten days, if they ire all living in the parish of the judge who gives the order, and in thirty days, if there are some of them residing out of the parish ; 4. That this meeting, as well as its object, be advertised in English and in French, by papers posted up in the usual places, and also by three publications in English and French in the newspapers, if any be printed within the extent of the jurisdiction of the judge who grants the order ; 5. That the creditors explain exactly the amount of the sums wliich they claim, and make oath before the notary holding the meeting, that they are justly and lawfully due. The creditors who do not make this oath, shall not have the right of voting, and their credits shall not be counted among those by w^hicli it is to be determined whether the respite is granted or not. Art. 3055. — Absent creditors, and who are not domiciliated in the State, are not, in any case, summoned to the meeting. They are to be represented by an attorney, whom it is the duty of the judge to appoint for them. The duties of that attorney are confined to establishing, as far as possible, the debts of the absentees, and to seeing that the proceedings are conducted legally ; he cannot grant any thing in the name of the per- sons whom he represents. Art. 305G. — It is not necessary that the creditors should all be to- gether at the deliberation ; as they arrive at the place of meeting, each may take the oath and express his will. Art. 3057. — When it has not been possible to receive the declara- tions of all the creditors in a single day, the notary may adjourn the meeting to the day following ; aud if those two days are not sufficient, 397 OF RESPITE. 397 he may adjourn it to the next ; but the meeting must always be closed the tenth day at the latest. Art. 3058. — In ordci- that the contract of respite may be effectual, it must be homologated by the judge who ordered the meeting of the •creditors. 8 L. 87 ; See 8065. Art. 3059. — Every opposition to the homologation must be made in writing within ten days, dating from that on whicli the proccs verbal of the deliberation of the creditors was returned to the clerk's office. The reasons on which the opposition is founded must be expressed. Art. 3060. — The property of the debtor is not hypothecated, by reason of the respite, for the payment of the mass of the de])ts, unless the respite has been granted on the express condition that this hypothe- cation shall exist. But the creditors who are obliged to abide by the will of tlie major- ity, may require that the debtor shall furnish security, that the property of which he is left in possession shall not be alienated ; or in ease it is, that the money arising from the sale shall be employed in paying the debts existing at the time of the respite. Art. 3061. — If the debtor has solicited the remission of a portion of his debts, the creditors who grant it are alone bound, and this discharge does not in any way affect the others. Those creditors, even, who have consented on condition that the others should also accede to the demands of the debtor, are not bound, if a single one refuse. Art. 3062. — The following classes of persons cannot be compelled to enter into any contract of respite or remission : Privileged creditors, of what nature soever their privileges may be, and creditors who have a special mortgage by public act ; Minors, for the balance of account of their tutorship or curatorvship ; Wives for their dotal rights, or for that of reclaiming their jiroperty. Therefore, the privileged creditors, and those who have a special mortgage as aforesaid, cannot be deprived by any respite, though agreed to by three-fourths of the creditors in number and in amount, of the right of seizing the property on which they have a privilege ; but if such property do not prove sufficient to satisfy their debt, they shall be restrained fi-om acting for tlie surplus, either against the person of their debtor, or against those of his effects on which they have no privilege, except after the expiration of the term granted by the respite. But creditors having a general mortgage are bound by the respite, in the same manner as ordinary creditors. 4 L. 471. Art. 3063. — The time allowed to a debtor in a forced respite, can- not exceed three years; and if the creditors of the three-fourths in number and in amount, have granted to him more time, the creditors, who are opposed to the respite, may cause this delay to be reduced to the legal time, saving to the debtor the right, when it shall be expired, to call again these creditors in order to obtain a new delay, which, in 398 OF ARBITRATION this last case, shall be granted only, if all these creditors unanimously consent to it. Art. 30G4. — Any one who has claimed the benefit of the cession of goods, cannot afterwards pray for a mere respite. Art. 3065. — When the creditors refuse a respite, the cession of property ensues ; and the proceedings continue, as if the cession had been offered in the first instance. See 8 L. 39 ; See 305S. TITLE XIX. OF arbitratio:n'. Art. 3066. — A submission is a covenant by which persons who have a lawsuit or difference with one another, name arbitrators to decide the matter, and bind themselves reciprocally to perform what shall be arbi- trated. 5 A. 133. Art. 3067. — A submission must be reduced to writing. Art. 3068. — They who cannot bind themselves cannot make a sub- mission, such as a married woman, unless it be under her husband's authority. An attorney, in fact, cannot make a submission without a special power. The tutors or curators of minors, of persons intetdicted or absent, cannot do it without being authorized by the judge. Art. 3069. — Parties may submit either all their differences, oi only some of them in particular ; and likewise they may submit to arbi- tration a lawsuit already instituted or only in contemplation, and gene- rally every thing which they are concerned in, or which they may dis- pose of. Art. 3070. — One may submit to arbitration the damages incurred for a public offence ; but it is without any prejudice to the prosecution of it in behalf of the State. Art. 3071. — The power of arbitrators is limited to what is explain- ed in the submission. Art. 3072 — If the submission does not limit any time, the power of the arbitrators may continue in force during three months from the date of the submission, unless the parties agree to revoke it. 13 L. 462. Art. 3073. — It is usual to undergo a penalty of a certain sum of money in the submission, which the person who shall contravene the award, or bring appeal therefrom, shall be bound to pay to the other who is willing to abide by it ; but this covenant is not obligatory, and the submission may subsist without the penalty. Art. 3074. — All persons may be arbitrators, except such as are under some incapacity or infirmity, which renders them unfit for that function. 399 OF ARBITRATION. 399 Therefore minors under the age of eighteen years, persons interdict- ed, those who are deaf or dumb, cannot be arbitrators. Art. 3075. — Women who, on accoxmt of their sex, cannot be judges, are likewise incapable of being named arbitrators. Art. 3076. — There are two sorts of arbitrators : The arbitrators properly so called; And the amicable coinpounders. Art. 3077. — The arbitrators ought to determine as judges, agree- ably to the strictness of the law. Amicable compounders arc authorized to abate something of the strictness of the law, in favor of the natural equity. Amicable compounders are, in other respects, subject to the same rules which are pi-ovidcd for the arbitrators by the present title. 7 L. 477 ; 1 K. 202 ; Sec 17 L. 2S5 ; IS L. 417. Art. 3078. — Before examining the difference to them submitted, the arbitrators ought to take an oath liefore a jndge, or justice of the peace, to I'ender their award witli integrity and impartiality in the cause which is laid before them. Art. 3079. — The parties, who have submitted their differences to arbitrators, must make known their claims, and prove them, in the same manner as in a court of justice, by producing written or verbal evidence in the order agreed on between them or fixed by the arbitrators. Art. 3080. — The arbitrators shall appoint a time and place for exam- ining the' matter to them submitted, and give notice thereof to the par- ties or to their attorneys. Art. 3081. — The parties must attend the arbitrators, either in per- son or by their attorney, with their witnesses and documents. If one or botli of them should not appear, the arbitrators maj' proceed and inquire into the affair in their absence. Art. 308"2. — Arbitrators have no authority to compel witnesses to appear before them or to administer an oatli ; but at the request of ar- bitrators it will be the duty of justices of the peace to compel witnesses to appear and to administer the oatli to them. Art. 3083. — If the arbitrators disagree, another shall decide, and that other is called an umpire. Art. 3084. — The nomination of the umpire is cither made by the parties themselves at the time of the submission, or left to the discre- tion of the arbitrators. Art. 3085. — '\\ henever the umpire has not been appointed by the submission, the arbitrators have the power to appoint him, though such power is not mentioned in the submission. But if the arbitrators can- not agcec on this election, the umpire shall be appointed ex ojjicin by the judge. Art. 308G. — The umpire shall take an oatli similar to that taken by the arbitrators, before examining the matter or the point submitted to him. Art. 3087. — The arbitrators, who liavc once consented to act as such, ought to determine the suit or the difference which is submitted to them, as soon as possible, and within the time fixed by the sub- mission. 400 OF COMPROMISE. Art. 3088. — Arbitrators cannot exceed the power wbicli is given to them ; and if they exceed it, their award is null for so much. Art. 3089. — The authority of arbitrators extends only to the things contained in the submission, unless it has been stated that they shall have power to decide all disputes which may arise between the parties in the course of the arbitration. Art. 3090. — The arbitrators ouirht to give their award within the time limited by the submission, and it would be null, if it were given after the time is expired. Art. 3091. — Nevertheless the parties may give power to the arbi trators to prolong the time, and in this case their power lasts during the time of the prorogation. Art. 3092. — If the submission specifies a certain time for the ex- amination of the cause which the arbitrators are to decide, they cannot give their award till that time is expired. Art. 3093. — If there are several arbitrators named by the submis- sion, they cannot give their award, unless they all see the proceedings and try the cause together ; but it is not necessary that the award, be signed by them all. Art. 3094. — The arbitrators shall fix by tlieir award the amount of the sum which they sentence one or several of the parties to pay to the other or others, though the omission of this does not annul the award 1 R. 202. Art. 3095. — The arbitrators may likewise pronounce by their award on the interest and costs; but their silence on that subject is not a cause of nullity. Art. 3096. — The award, in order to be put in execution, ought to be approved by the judge ; but this formality is only intended to invest the award with a sufficient authority to ensure its execution, and not to submit to the judge the examination of its merits, except in case an ap- peal is brought before him. 3 L. 4SG; 7 L. 4T7 ; IS L. 41T ; See 1 E. 202. Art. 3097. — He who is not satisfied with the award, may appeal from it, though the parties had renounced such appeal by the submission ; but the appellant, before being heard on his appeal, ought to pay the penalty stipulated in the submission, if any has been stipulated ; and this penalty shall ever be due, though the appellant afterwards renoun- ces his appeal ; but if he succeeds to have the award reversed, either in whole or in part, the court who shall pronounce on the appeal, shall order the rejjayment of the penalty ; but if the award is confirmed, the penalty, which has been paid, shall operate no diminution on the amount of the award. Art. 3098. — The arbitrators having once given their award, cannot retract it nor change any thing in it. Art. 3099. — The submission and power given to the arbitrators are put at an end by any one of tlie following causes : 1. By the expiration of the time limited, either by the submission or by law, though the award should not be yet rendered ; 2. By the death of one of the parties or arbitrators ; 401 OF PLEDGE. 401 3. By the final award rendered by the arbitrators ; 4. When the parties happen to compromise, touching the thing in dispute, or when this thing ceases to exist. TITLE XX. OF PLEDGE. Art. 3100. — The pledge is a contract by which one debtor gives something to his creditor as a security for his debt. Art. 3101. — There are two kinds of pledge: The pawn ; The antichresis. Art. 3102. — A thing is said to be pawned, when a movable thing is given as security; and the antichresis, when the security given consistB in immovables or slaves. CHAPTER I. GENERAL PROVISIONS. Art. 3103. — Every lawful obligation may be enforced by the auxi liary obligation of pledge. Art. 3104. — If the principal obligation be conditional, that of the pledge is confirmed or extinguished with it. Art. 3105. — If the obligation is null, so also is the pledge. Art. 3106. — The obligation of pledge annexed to an obligation which is purely natural, is rendered valid only when the latter is con- firmed and becomes executory. Art. 3107. — Pledge may be given not only for an obligation con- sisting in money, but also for one having any other object, for example, a surety. Nothing prevents one person from giving a pledge to another for becoming his surety with a third. Art. 3108. — A person may give a pledge, not only for his own debt, but for that of another also. Art. 3109. — A debtor inay give in pledge whatever belongs to him. But witli regard to those things, in which he has a property which may be divested, or which is subject to encumbrance, he cannot confer on the creditor, by the pledge, any further right than he had himself. See 2 L. 514. Art. 3110. — To know whether the thing given in pledge, belonged to the debtor, reference must be had to the time when the pawn was made. 26 k 402 OF PLEDGE. AiiT. 3111. — If at tlio time of tlio contract, the debtor liad not the property of the thing pledged, but has acquired it since, by what title soever, his ownership shall relate back to the time of the contract, and the pledge shall stand good. AiiT. 3112. — One person may pledge the property of another, pro- vided it be with the express or tacit consent of the owner. Art. 3113. — But this tacit consent must be inferred from circum- stances, so strong as to leave no doubt of the owner's intention, as if he was present at the making of tlic contract, or if he himself delivered to the creditor the thing pawned. Art. 3114. — Although the property of another cannot be given in pledge without his consent, yet so long as the owner refrains from claim- ing it, the debtor, who has given it in pledge, cannot seek to have it re- stored, until his debt has been entirely discharged. Art. 3115. — Tutors and curators of minors and of persons under interdict, curators of vacant estates and of absent heirs, testamentary executors, and other administrators named or confirmed by a judge, cannot give in pledge the property confided to their administration, without being expressly authorized in the manner prescribed by law. 2 A, 872. Art. 31 IC. — An attorney cannot give in pledge the property of his principal, without the consent of the latter, or an express power to that efi"cct. . Nevertheless, where tlic power of attorney contains a general authori- ty to mortgage the property of the principal, this power includes that of giving it in pledge. Art. 3117. — The property of cities and other corporations can only be given in pledge, according to the rules and subject to the restrictions prescribed on that head by their respective acts of incorporation. Art. 3118. — A partner cannot, for his own concerns, give in pledge the partnership property without the consent of his associates. lie cannot do it even for the partnership concerns, without such consent, unless he be vested with the management of the co-partnership. This rule admits of exceptions in matters of commercial partner- ship. Art. 3119. — It is essential to the contract of pledge that the credi- tor be put in possession of the tiling given to liim in pledge, and conse- quently that actual delivery of it be made to him, unless he has posses- sion of it already by some other right. 1 E. 616. Art. 3120. — But this delivery is only necessary with respect to cor- poreal things ; as to incorporeal rights, such as debts, which arc given in pledge, the delivery is merely fictitious and symbolical. 8ee 8125; IE. 610; 1 A. 340. 403 0¥ PLEDGE. 40a CHAPTER II. OF PAWN. Akt. 3121. — One may pawn every corporeal thing, which is suscep- tible of alienation. One may even pawn money, as a security for performing or refrain iug to perform an act Art. 3122. — One may, in fine, pawn incorporeal movables, such ah debts and other claims of that nature. Art. 3123. — When a debtor wishes to pawn a claim on another person, he must make a transfer of it in the act of pledge, and deliver to the creditor to whom it is transferred, the note or obligation which proves its exri.stence, if it be under private signature, and must indorse it, if it be negotiable. 2 L. 361, SS6; 17 L. 189, 428; Sco 3127, 8128. Art. 3124. — The pawn invests the creditor with the right of caus- ing his debt to be satisfied by privilege and in preference to the other creditors of his debtor, out of the product of the movable, corporeal or incorporeal, which has been thus burdened. S L. 4S3 ; S R. 10. Art. 3125. — But this privilege shall take place against third per- sons, only in case the pawn is proved by an act made either in a public form or under private signature ; provided that in this last case it should be duly registered in the office of a notary public at a time not suspicious ; provided also, that whatever may be the form of the act, it mentions the amount of the debt as well as the species and nature of the thing given in pledge, or has a statement annexed thereto of its number, weight and measure. Stat. 12/ A February, 1852, p. 15. — ^ 1. AVhen a debtor wishes to pawn promissory notes, bills of exchange, stocks, obligations or claims upon other persons, he shall deliver to the creditor the notes, bills of exchange, certificates of stock, or other evidences of the claims or rights so pawned ; and such pawn so made, without further formalities, shall be valid, as well against third persons as against the pledgors thereof, if made in good faith. ^ 2. All pledges of movable property may be made by private wri- ting, accompanied by actual delivery and the delivery of property, on deposit in a warehouse, shall pass by the private assignment of the ware- house receipt, so as to authorize the owner to pledge such proport}-; and such pledges so made, without further formalities, shall be valid as well against third persons, as against the pledgors thereof, if made in good faith. ^ 3. If a credit not negotiable be given in pledge, notice of the same must be given to the debtor. ^ 4. In all pledges of movable property, it shall be lawful for the pledgor to authorize the sale, or other disposition of the property pledged, in such manner as may be agreed upon by the parties, without the in- tervention of courts of justice. aM 570; 5N.8.C1S; 2 1^365,367,459; 3L628; 81*428,483; 1A.443; 8A. 477, 478; 6A.517. 404 ^F PLEDGE. Art. 3126. — Nevertheless, the acts of pledge in favor of the banks of this State, shall be considered as forming authentic proof, if they have been passed by the cashiers of those banks or their branches, and contain a description of the objects given in pledge, in the manner directed by the preceding article. 1 A.443. Art. 3127. — When the thing given in pledge consists of a credit not negotiable, to enable the creditors to enjoy tlie privilege above men- tioned, it is necessary, not only tliat the proof of the pledge be made by an authentic act, or by act under private signature, duly recorded, as stated in the preceding article, but that a copy of this act shall have been duly served on the debtor of the credit given in pledge. 2 L. 361, 3SC ; 17 L. 190 ; Sco 31'25 and Amendment ; See 3123. Art. 3128. — On the other hand, this notification of the act of pledge to the person owing the debt pledged, shall not be necessary, if the debt is evidenced by a note or other obligation payable to the bearer or to order, because in that case it will suffice that the note or obligation shall have been indorsed by the person pledging it, to invest the creditor with the privilege above mentioned. 2 L. 361 ; 14 L. 452 ; 17 L. 190; 2 A. 838; See 3123. Art. 3129. — In no case does this privilege subsist on the pledge, except when the thing pledged, if it be a corporeal movable, or the evi- dence of the debt, if it be a note or other obligation under private sig- nature, has been actually put and remained in ■ the possession of the creditor, or of a third person agreed on by the parties. 1 L. 474; 1 A. 840; 2 A. 838; 6 A. 23, 517. Art. 3130. — When several things have been pawned, the owner can- not retake one of these without satisfying the whole debt, though he offers to pay a certain amount of it in proportion to the thing which he wishes to get. 1 K. 516. Art. 3131. — The creditor, who is in possession of the pledge, can- not be compelled to return it, but when he has received the whole pay- ment of the principal as well as the interest and costs. 1 R. 516. Art. 3132. — The creditor cannot, in case of failure of payment, dis- pose of the pledge, but may apply to the judge to order that the thing shall remain to him in payment for as much as it shall be estimated by two appraisers, or shall be sold at public auction, at the choice of the debtor. Any clause which should authorize the creditor to appropriate the pledge to himself, or dispose thereof without the aforesaid formalities, shall be null 8K. 10; See 3124. Art. 3133. — Until the debtor be divested of his property, if it is the case, he remains the proprietor of the pledge, which is in the hands of the creditor only as a deposit to secure his privilege on it. Art. 3134. — The creditor is answerable agreeably to the rules which have been established under the title of conventional obligations^ for the loss or decay ^f the pledge which may happen through his fault. 405 OF PLEDGE. 405 On his part, the debtor is bound to pay to the ereditor all the useful and necessary expenses which the latter has made for the preservation of the pledge. 1 A. 344 ; Seo 19 L. 556 ; See 1902. Akt. 3135. — The fruits of the pledge are deemed to make a part of it, and therefore they remain, like the pledge, in the hands of the cre- ditor ; but he cannot appropriate them to his own use, and he is bound, on the contrary, to give an account of them to the debtor, or to deduct them from what may be due to him. Art. 3136. — If it is a credit which has been given in pledge, and if the credit brings interest, the creditor shall deduct this interest from that which may be due to him ; but if the debt, for the security of which the claim has been given, brings no interest by itself, the deduction shall be made on the principal of the debt. Art. 3137. — If the debt, which has been given in pledge, becomes due before it is redeemed by the person pawning it, the creditor by vir- tue of the transfer which has been made to him, shall be justified in re- ceiving the amount, and in taking measures to recover it. When received, he must apply it to the payment of the debt due to himself and restore the surplus, should there be any, to the person from whom he held it in pledge. Art. 3138. — The pawn cannot be divded, notwithstanding the divi- sibility of the debt between the heirs of the debtor and those of the creditor. The debtor's heir, who has paid his share of the debt, cannot de- mand the restitution of his share in the pledge, so long as the debt is not fully satisfied. And reciprocally the heir of the creditor, who has received his share of the debt, cannot return the pledge to the prejudice of those of his co-heirs who are not satisfied. 1R.516. Art. 3139. — If the proceeds of the sale exceed the debt, the sur- plus shall be restored to the proprietor ; if, on the contrary, they are not sufficient to satisfy it, the creditor is entitled to claim the balance out of the debtor's other property. Art. 3140. — The debtor who takes away the pledge without the creditor's consent, commits a sort of theft. Art. 3141. — When the creditor has been deceived as to the substance or quality of the thing given in pledge, he may claim another thing in its stead, or demand immediately his payment, though the debtor be solvent. Art. 3142. — The creditor cannot acquire the pledge by prescription, whatever may be the time of his possession. CHAPTER III OF ANTICHRESIS. Art. 3143. — The antichresis shall be reduced to writing. The creditor acquires by this contract the right of reaping the fruits or other revenues of the immovables or slaves to him given in pledge, on condition of deducting annually their proceeds from the in- 406 OF PLEDGE. tereat, if any are due to him, and afterwards from the principal of his debt. See 3 L. IW. Art. 3144. — The creditor is bound, unless the contrary be agreed on, to pay the taxes, as well as the annual charges of the property which have been given to him in pledge. He is likewise bound, under penalty of damages, to provide for the keeping and useful and necessary repairs of the pledged estate, saving to himself the right of levying on the fruits and revenues all the expenses respecting such charges. He ought also to provide for the expenses respecting the mainten- ance of the slaves who have been given to him in pledge. Art. 3145. — The debtor cannot, before the full payment of the debt, claim the enjoyment of the immovables or slaves which he has given in pledge. Eut the creditor who wishes to free himself from the obligations mentioned in the preceding articles, may always, unless he has renounced this right, compel the debtor to retake the enjoyment of his immovable or slaves. Art. 3146. — The creditor does not become proprietor of the pledged immovable or slaves, by failure of payment at the stated time ; any clause to the contrary is null ; and in this case it is only lawful for him to sue his debtor before the court in order to obtain a sentence against him and to cause the objects, which have been put in his hands in pledge, to be seized and sold. Art. 3 1 47. — When the parties have agreed that the fruits or reve- nues shall be compensated with the interest, either in whole or only to a certain amount, this covenant is performed as every other which is not prohibited by law. Art. 3148. — Every provision which is contained in the present title with respect to the antichresis, cannot prejudice the rights which third persons may have on the immovable, or on the slaves, given in pledge by way of antichresis, such as a privilege or mortgage. The creditor who is in possession by way of antichresis, cannot have any right of preference above the other creditors arising from the diifer- ence of the pawn ; but if he has, by any other title, some privilege or morto;age lawfully established or preserved thereon, he will come in his rank like every other creditor. 407 OF PRIVILEGES. 407 TITLE XXI. OF PRIVILEGES. CHAPTER I. GENERAL PROVISIONS. Art. 3149. — Whoever has bound himself personally, is obliged to fnlfil his engagement out of all his property, movable and immovable, present and future. Art. 3150. — The property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exist among the creditors some lawful causes of preference. 15 L. 122 ; 3 A. 428. Art. 3151. — Lawful causes of preference are privileges and mort- gages. 3 A. 430. Art. 3152. — Privilege can be claimed only for those debts to which it is expressly granted in this code. 2L. 93;3L. IM; 4L. 222; 11L. 2S; ISL. 70; 1 E. 21 ; 2 R. 154; TR. 159; 11 R. 7S, 279 ; 12 E. 1T2 ; 2 A. 549, 099, 774, TS9, 961 : 3 A. 189, 423 ; 4 A. 310 ; 5 A. 349, 570 ; 6 A. 112 ; See S'N. 8. 606 ; 2 L. 113 ; 17 L. 158, 439, 59G ; 17 L. 443 ; 18 L. 73, 331. CHAPTEE II. OF THE SEVERAL KINDS OF PRIVILEGES. Art. 3153. — Privilege is a riglit, which the nature of a debt gives to a creditor, and which entitles him to be preferred before other credi- tors, even those who have mortgages. 2 A. 549. Art. 3154. — Among creditors who are privileged, the preference is settled by the different nature of their privileges. Art 3155. — The creditors who are in the same rank of privileges, are paid in concurrence, that is, on an equal footing. Art. 3156. — Privileges may exist, either on movables or immov- ables, or on both at once. CHAPTER III. OF PRIVILEGES ON MOVABLES. Art. 3157. — Privileges are either general, or special on certain mov- ables. 408 OF PRIVILEGES. Section I. — Of General Privileges on Movables. Art. 3158. — The debts which are privileged on all the movables in general; arc those hereafter enumerated, and arc paid in the following order. 1. Funeral charges ; 2. Law charges ; 17 L. 207. 3. Charges, of whatever nature, occasioned by the last sickness, con- currently among those to whom they are due. 7 R. 91. 4. The wages of servants for the year past, and so much as is due for the current year ; 2 A.1. 5. Supplies of provisions made to the debtor or his fiimily, during the last six months, by retail dealers, such as bakers, butchers, grocers and during the last year, by keepers of boarding houses and taverns ; 6. The salaries of clerks, secretaries, and other persons of that kind ; 3 A.42S; IE. 445; 1 A. 21, 22. 7. Dotal rights due to wives by their husbands. § 1. — Of Funeral Cliarges. Art. 3159. — Funeral charges are those which are incurred for the interment of a person deceased. AuT. 31 GO. — If the property of the deceased is so encumbered as not to suffice for the payment of his creditors, the funeral charges may, upon the request of any of them, be reduced by the judge to a reasonable rate, regard being had to the station of life which the deceased held, and which bis family holds. 8 A. 436. Art. 3161. — But, in case of the reduction, the judge can never allow, at the expense of the estate, on any account whatever, more than two hundred dollars for all the expenses occasioned by the interment of the deceased. 3 A. 43G. § 2. — Of LWw Charges. Art. 3162. — Law charges are such as are occasioned by the prose- cution of a suit before the courts. ]5ut this name applies more particu- larly to the costs, which the party cast has to pay to the party gaining the cause. It is in favor of these only that the law grants the privilege. 17 L. 207; 11 E. 28. Art. 3163. — The creditor enjoys this privilege, not with regard to all the expenses which he is obliged to incur in obtaining judgment against his debtor, but with regard only to such as arc taxed according to law, and such as arise from the execution of the judgment. 17 L. 208 , 11 E. 28. 409 OF PRIVILEGES. 409 Art. 31G4. — The costs for affixing seals and making inventories for the better preservation of the debtor's property ; those which occur in cases of failure or cession of property, for the general benefit of credi- tors, such as fees to lawyers appointed by the court to represent absent creditors, commissions to syndics ; and finally, costs incurred for the administration of estates, which are either vacant or belonging to absent heirs, enjoy the privileges established in favor of law charges. IT L. 208 ; 1 R. 270 ; 1 A. 21 ; 3 A. 436 ; See 10 L. 4.38. Art. 3165. — Not only has the creditor no privilege for the costs which are not taxed, or which are not included among those mentioned above, but he has no right to demand them even from the debtor. IT L. 209. § 3. — 0/ Rvpenses during the last Sichiess. Art. 3166. — The last sickness is considered to be that of which the debtor died. It is the expenses of this sickness that enjoy the privilege. 7 K. 91. Art. 3167. — But if the sickness with which the deceased was at. tacked, and of which he died, was a chronic disease, the progress of which was slow, and which only occasioned death after a long while, then the privilege shall only commence from the time when the malady became so serious as to prevent the deceased from attending to his business, and confined him to his bed or cliamber. Art. 3168. — However long the sickness may have lasted after arri- ving at the point which prevented him from attending to his afiiiirs, the privilege granted for the expense it has occasioned, can only extend to one year before the decease. Art. 3169. — The expenses of the last sickness comprehend the fees of physicians and surgeons, tlie wages of nurses, and the price due to the apothecary for medicines supplied by him to the deceased for his per- sonal use during his last illness. 1 A. 204. Art. 3170. — The accounts relating to these expenses must be fixed by the judge, in case of dispute, after hearing testimony as to the value of tlie services rendered, or care aflbrded, or as to the true value of medicines supplied, unless there has been a contract between the parties, in which case it must be observed. Art. 3171. — This privilege subsists, not only for the expenses of the last sickness of tlie debtor, it subsists also for those of the last sickness of children under his authority, but it is exercised subject to the rules laid down above. §4. — Of the Wtige,H of Servants. Art. 3172. — Servants or domestics are tho.ge who receive wages, and Etay in the house of the person paying and employing them for his ser- 410 OF PRIVILEGES. vice or that of his family ; such are, valets, footmen, cooks, butlers, and others who reside in the house. 6 A. 2T5. Ar.t. 3173. — Domestics or servants must make a demand of their wages, within a year from the time when they left service, but their privilege is only for the year past, and so much as is due for the present year. Art. 3174. — As to preceding years which maybe due, the wages may be recovered, if there is any balanced account, note or obligation of the debtor ; but they enjoy no privilege. They form an ordinary debt for which domestics or servants come in by contribution with other ordinary creditors. § 5. — Of Supplies of Frovisions. Art. 3175. — Such supplies of provisions as confer a privilege, are those which are made by retail dealers, that is, persons keeping an open Hhop, and selling, by small portions, provisions and liquors. C A. 275. Art. 3176. — Retail dealers, who have furnished such supplies, ought to demand their money within a year from the time of the first supply ; but they have a privilege only for the last sis months, and for the rest they are placed on the footing of ordinary creditors. 3 L. 154. Art. 3177. — Dealers by wholesale in provisions and liquors do not enjoy any privilege on the property of their debtor, further than what they have acquired by mortgage, or by a judgment duly recJorded. Art. 3178. — It is not keepers of taverns and hotels alone, who are comprehended in the term masters of boardififf-houscs, and enjoy a privi- lege for their supplies, but all persons who make a business of receiving persons at board for a fixed price. Art. 3179. — Teachers and preceptors, who receive into their houses young persons to be brought up, fed and instructed, enjoy the same privi- lege which is given to keepers of boarding-houses. Art. 3180. — The privilege of keepers of boarding-houses, taverns, and other persons comprised in this class, extends to the last year due, and to so much as has expired of ^he current year. § G. — OftJie Privilege of GlerJcs, and that of Wives for their Dotoer. Art. 3181. — Although clerks, secretaries and other agents of that sort cannot be included under the denomination of servants, yet a privi- lege is granted them for their salaries for the last year elapsed, and so much as has elapsed of the current year. This privilege, however, can- not be enforced until after that of the furnishers of provisions. 3 A. 42S. Art. 3182. — The privilege granted to wives on the movable efi'ecta of their hushinds, exists for the dotal property only, and can only be 411 OF PRIVILEGES. 411 enforced on such effects as were in the husband's possession at the digso lution of the marriage or co-partnership. * 7 L. 487 ; 3 K. 276 ; 9 K. 142 ; See 2355. Section II. — Of the Privileges on particxtlar Movables Art. 3183. — The privileges, enumerated in tlie preceding section, ex- tend to all the movables of the debtor, without distinction. There are some, which act only on particular movables and no other ; and it is of these last that we shall tre^t in this and the following sec- tions. Art. 3184. — The debts which are privileged on certain movables, are the following : 1 . The appointments of salaries of the overseer, for the year last past and so much as is due of the current year, on the product of the last crop and the crop at present in the ground ; 12 R. 527; 2 A. 447 ; 3 A. 183. 2. The debt of a workman or artisan for the price of his labor, on the movable which he has repaired or made, if the thing continues still in his possession ; 6 A. 232. 3. The rents of immovables and the hire of slaves employed in work- ing the same, on the produce of the crop of the year, and on the proceeds of the furniture which is found in the house let, or on the farm, and of every thing which serves to the working of the farm ; 2 A. 874; 5 A, 646. 4. The debt, on the pledge which is in the creditor's possession ; 5. That of a depositor, on the price of the sale of the thing by him deposited ; 6. The debt due foi* money laid out in preserving the thing ; 7. The price due on movable effects, if they are yet in the possession of the purchaser ; 8 A. 276. 8. The things which have been furnished by an innkeeper, on the property of the traveller which has been carried to his inn ; 9. The carrier's charges and the accessory expenses, on the thing carried. Stat. 23d March. 1 843, p. 44. — § 1. Article three thousand one hun- dred and eighty-four of the Civil Code be so amended as to insert in the first paragraph, after the word " overseer," the following words : " and debts due for necessary supplies furnished to any farm or plantation." ^ 2. The privilege of the overseer as granted in said article three thousand one Jiundred and eighty-four, shall be superior in rank to that of the furnislicr of supplies, as granted by the present act. § 3. This act shall be in force from and after its promulgation. § 1. — Of the Privilege of the Lessor. Art. 3185. — Tlie right, which the lessor has over the products of the estate, and on the movables which are found on the place leased, for 412 OF PRIVILEGES. his rent, is of a higher natm*o than mere privilege. The laticr is only enforced on the price arising from the sale of movables to which it ap- plies. It does not enable the creditor to take or keep the effects them- selves specially. The lessor, ou the contrary', may take the effects them- selves, and retain them until he is paid. 17 L. 443; IR. 445; 2 A. 14. Art. 3186. — The privilege of the lessor is enforced on the property subject to it in the manner described in the title of lease or hiring. § 2. — Of the Privilege oftlie Creditor on the Tiling Pledged. Art. 3187. — The creditor acquires the right of possessing and re- taining the movable, which he has received in pledge, as a security for his deb.t, and may cause it to be sold for the paj^mcnt of the same. Hence proceeds the privilege which he enjoys on the thing. Art. 3188. — For the exercise of this privilege it is necessary that all the requisites stated in the title oijjledge., should be fulfilled. § 3. — Of the Privilege of a Depositor. Art. 3189. — He who deposits a thing in the hands of another, still remains the owner of it. Consequently, his claim to it is preferred to that of the other credit- ors of the depositary, and he may demand the restitution of it, if he can prove the deposit, in the same manner as is required in agreements for sums of money, and if the thing reclaimed be identically the same which he deposited. 9 L. 44 ; 17 L. 162. Art. 3190. — If the depositary abuses his trust, by alienating the thing confided to his care ; or if his heir sell it, not knowing that it had been given in deposit, the depositor retains his privilege ou the price which shall be due. § 4. — Of Expenses incurred for the preservation of the Thing. Art. 3191. — He who, having 'in his possession the property of an- other, whether in deposit or on loan, or otherwise, has been obliged to incur any expense for its preservation, acquires on this property two spe- cies of rights. IK. 18G; 6 A. 362. Art. 3192. — Against the owner of the thing, his right is in the na- ture of that of pledge, by virtue of which he may retain the thing until the expenses, which he has incurred, are repaid. He possesses this qualified right of pledge, even against the creditors of the owner, if they seek to have the thing sold. He may refuse to re- store it, unless they cither refund his advance, or give him security that the thing shall fetch a sufficient price for that purpose. 413 OF PRIVILEGES. 413 Art. 3-193. — Fiiiall}', he who lias incurred these expenses, has a privilege against these same creditors, by virtue of which he has a prefer- ence over them out of the price of the thing sokl, for the amount of such necessary charges as he shall have incurred for its preservation. This is the privilege in question in the present paragraph. § 5. — Of tlw Privilege of the Vendor of Movable Effects. Art. 3194. — He who has sold to another any movable pi-operty, which is not paid for, has a preference, on the price of this property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser. So that although the vendor may have taken a note, bond or other acknowledgment from the buyer, he still enjoys the privilege. 3 L. 154 ; 10 L. G8 ; 14 L. 261 ; 11 R. 140 ; 1 A. 80 ; .3 A. 40 ; Seo 5 R. 423 ; 2 A. 335. Art. 3195. — But if lie allows the things to be sold, confusedly with a mass of other things belonging to the purchaser, without making his claim, he shall lose the privilege, because it will not be possible, in such a case, to ascertain what price they brought. 4 R. 419. Art. 3196. — If the sale was not made on credit, the seller may even claim back the things in kind, which were thus sold, as long as. they are in possession of the purchaser, and prevent the resale of them, provided the claim for restitution be made within eight days of the de- livery at farthest, and that the identity of the objects be established. Art. 3197. — When the things reclaimed consist of merchandise, which is sold in bales, packages or cases, the claim shall not be admitted, if they have been untied, unpacked or taken ovit of the cases, and mixed with other things of the same nature belonging to the purchaser, so that their identity can no longer be established. Art. 3198. — But if the things sold are of such a nature as to be easily recognized, as household furniture, even although the papers or cloths, which covered them at the time of delivery, be removed, the claim for restitution shall be allowed. § G. — Of the Privilege of the InnTceeiyer on the Effects of the Traveller. Art. 3199. — Those are called innkeepers, who keep a tavern or hotel, and make a business of lodging travellers. Art. 3200. — Innkeepers have a privilege, or more properly a right of pledge, on the property of travellers who take their board or lodging with them, by virtue of which they may retain the property and have it sold, to obtain payment of what such travellers may owe them, on either of the accounts above mentioned. 14 L. 101. Art. 3201. — Innkeepers enjoy this privilege on all the property which the traveller has brought to the inn, whether it belongs to him or not, because the property has become their pledge by the fact of its in- troduction into the inn. This privilege extends even to coined money 4U OF PRIVILEGES. which may be found in the apartment of the traveller who has died in their house. 2 A. 129. Art. 3202. — The term travellers applies to strangers and such as being transiently in a place where they have no domicil, take their board and lodging at an inn. 14 L. 101. Art. 3203. — The innkeeper, who retains the property of a traveller for tavern expenses due to him, cannot sell it of his own authority ; he must apply to a tribunal to have his debt ascertained, and the property seized and sold for the payment of it. Section II. — Of the Privilege on SJiips and Merchandise. Art. 3204. — The following debts are privileged on the price of ships or other vessels, in the order in which they are placed : 1. Legal and other charges, incurred to obtain the sale of a ship or other vessel, and the distribution of the price ; IE. 312; 7L. 4S7. 2. Debts for pilotage, wharfage and anchorage ; 3. The expenses of keeping the vessel from the time of her entrance into port, until sale, including the wages of persons employed to watch her; 4. The rent of stores, in which the rigging and apparel are deposited. 5. The maintenance of the ship and her tackle and apparatus, since her return into port from her last voyage. 6. The wages of the captain and crew employed on the last voyage ; 8 L. 42. 7. Sums lent to the captain for the necessities of the ship during the last voyage, and reimbursement of the price of merchandise sold by him for the same purpose ; 1L.543; 15 L. 145; 4A.9. 8. Sums due to sellers, those who have furnished materials, and workmen employed in the construction, if tlie vessel has never made a voyage ; and those due to creditors for supplies, labor, repairing, vic- tuals, armament and equipment, previous to the departure of the ship, if she has already made a voyage ; 8 L. 191 ; 15 K. 549 ; 3 A. 40 ; 5 K. 423 ; 4 A. 9 ; See 17 L. 161. 9. Money lent on bottomry for refitting, victualling, arming and equipping the vessel before her departure ; 1 0. The premiums due for insurance made on the vessel, tackle and apparel, and on the armament and equipment of the ship ; 11. The amount of damage due to freighters for the failure in deliver- ing goods which they have shipped, or for the reimbursement of damage sustained by the goods through the fault of the captain or crew. • Sec 12 L. 335. Stat. 28 Ajvil, 1853, No. 192.— In all cases where any loss or damage has been caused to the person or property of any individual, by any care- lessness, neglect or want of skill in the direction or management of any 415 OF PRIVILEGES. 415 steamboat, barge, flatboat, water-craft or raft, the party injured shall have a privilege to rank after the privileges specified by the Civil Code, article three thousand two hundred and four, and continue for the same length of time in the same manner provided for other privileges by the said arti- cle of the Civil Code upon such steamboat, barge, flatboat, water-craft or raft, for the amount of the loss or damage sustained, and may proceed by attachment or in rem to recover the same : Provided, however, that before so proceeding he, or if he be absent, his agent or attorney, shall swear to the amount of the loss or damage sustained, and file a bond with good and sufficient security, in favor of tlie owners of the steam- boat, barge, flatboat, water-craft or raft, whomsoever they may be, whether their names be known or not, for a sum exceeding by one-half in amount of that which is claimed, as a security for the payment of such damages as the owners may recover against him in case it should be decided that the attachment or proceeding was wrongfully obtained : And, provided, further, that it shall be suflScient for the oath required to be taken by the agent or attorney to be to the best of his knowledge and belief. Art. 3205. — The creditors, named in each number of the preced- ing article, come in together, and must all sufi'er a ratable diminution, if the fund be insuflicient. 15 L. 142. Art. 3206. — Creditors, having privileges on ships or other vessels, may pursue the vessel in the possession of any person who may have obtained it by virtue of a sale ; in this case, however, a distinction must be made between a forced and a voluntary sale. Art. 3207. — When the sale has been a forced one, the right of the purchaser to the property becomes irrevocable ; he owes only the price of adjudication, and over it the creditors exercise their privilege, in the order above prescribed. 8 L. 42. Art. 3208. — When the sale is voluntary on the part of the owner, a distinction is to be made, whether the vessel was in port or on a voyage. Art. 3209. — When a sale has been made, the vessel being in port, the creditors of tlic vendor, who enjoy the privilege for some cause an- terior to the act of sale, may demand payment and enforce their rights over the ship, until a voyage has been made in the name and at the risk of the purchaser, without any claim interposed by them. Art. 3210. — But wlicn the ship has ma'le a voyage in the name and at the risk of the purchaser, without any claim on the part of the privi- leged creditors of the vendor, these privileges are lost and extinct against the ship, if she was in port at the time of sale. Art. 32 11. — On the other hand, if the ship wa.i on a voyage, at the time of the sale, the privilege of the creditor against the purchaser shall only become extinct after the ship shall have returned to the port of departure, and the creditors of the vendor shall have allowed her to de- part on another voyage for the account and risk of the purchaser, and shall have made no claim. 416 OF PRIVILEGES. Art. 3212. — A ship is considered to have made a voyage, when her departure from one port and arrival at another shall have taken place, or when, without having arrived at another, more than sixty days have elapsed between the departure and I'eturn to the same port, or when the ship, having departed on a long voyage, has been out more than sixty days, without any claim on the part of persons pretending a privilege. 3 A. 40. Art. 3213. — The captain has a privilege for the freight, during fif- teen days after the delivery of the merchandise, if they have not passed into third hands. He may even keep the goods, unless the shipper or consignee shall give him security for the payment of the freight. IL. 269; IE. 556; 2 A. 129, Art. 3214. — Every consignee or commission agent, who has made advances on goods consigned to him, or placed in his liands to be sold for account of the consignor, has a privilege for the amount of these ad- vances, with interest and charges, on the value of the goods, if they are at his disposal in his stores, or in a public warehouse, or if, before their arrival, he can show, by a bill of lading or letter of advice, that they have been despatched to him. This privilege extends to the unpaid price of the goods which the consignee or agent shall have thus received and sold. Stat, nth February^ 1841, p. 21. — That Article three thousand two hundred and fourteen of the Civil Code be so amended that every consignee commission agent or factor shall have privilege pre- ferred to any attaching creditor on the goods consigned to him for any balance due him, whether specially advanced on said goods or not, pro- vided they have been received by him, or an invoice or bill of lading has been received by him previous to the atachment. Provided, that the privilege established by this act shall not have a preference over a pri- vilege pre-existing on the goods aforesaid in behalf of a resident cre- ditor of this State. Stat. Sth March, 1841, p. 58.—^ 1. The first section of the act to which this is an amendment be so amended that the last proviso con- tained in the French text of said section do agree with the English text and read in the following manner in both texts, " Provided, that the privilege established by this act shall not have a preference over a privi- lege pre-existing on the goods aforesaid in behalf of a resident creditor of this State." ^ 2. All laws or parts of laws contrary to this act be, and the same are hereby repealed. 1 L.863; 2L.440; 3L. 301,562; 6 L. 893 ; 12 L. 144, .370, 879 ; 13L.4S9; 2R.342; 2 A, 572; 3A 44T ; See 14 L. 473, 476. Art. 3215. — In the event of the failure of the consignee or com- mission agent, the consignor has not only a right to reclaim the goods sent by him, and which remain unsold in the hands of the consignee or agent, if he can prove their identity ; but he has also a privilege on the price of such as have been sold, if the price has not been paid by the purchaser, or passed into account current between him and the bank- rupt. • 6 K. 268. 417 OF PRIVILEGES. 417 CHAPTER IV. OF PRIVILEGES ON IMMOVABLES AND SLAVES. Art. 3216. — Creditors who have a privilege on immovables and slaves arc : 1. The vendor, on the estate or slave by him sold, for the payment of the price, or so much of it as is due, whether it was sold on or with- out a credit ; 2. Architects and undertakers, bricklayers and other workmen em- ployed in constructing, rebuilding or repairing houses, buildings, or mak- ing other works, on such houses, buildings, or works by them constructed, rebuilt or repaired ; 13 L. 8; 15 L. 8S4, 416; 2 A. 309; Sec 2743. 3. Those who have supplied tlie owner with materials for the con- struction or repair of an edifice or other work, which he has erected or repaired out of these materials, on the edifice or other work constructed or repaired ; 4. Those who have worked by the job, or by employing their slaves in the manner directed by law, or by the regulations of the police, in making or repairing the levees, bridges, ditches, and roads of a proprie- tor, on the land, the levees, bridges and roads over which have been made or repaired. 2 A. 309 ; 6 A. 139, ITS, 212 ; See 5 L. 349 ; 13 L. 9 ; 3 A. 600. Art. 3217. — The privilege granted to the vendor on the immovable sold by him, extends to the slaves, beasts and agricultural implements attached to the estate, and which made part of the sale. Art. 3218. — If there are several successive sales, on which the price is due wholly or in part, the first vendor is preferred to the second, the second to the third, and so throughout. CHAPTER V. OF PRIVILEGES WniCn EMBRACE DOTH MOVABLES AND IMMOVABLES. Art. 3219. — The privileges which extend alike to movables and immovables, arc the following: 1. Funeral charges ; • 2. Judicial charges ; 17 L. 207. 3. Expenses of the last illness ; 4. The wages of servants ; 5. The salaries of secretaries, clerks and otlier agents of that kind. With regard to the wife's dower, she has no privilege on the immo- vable property of her husband, but a mere ri'^lit nf mortgage, as is said under the title of contract of marriage. 3 A. 429; 2A. 7S9. Art. 3220. — "When, for want of movables, the creditors, who have a privilege according to the preceding article, demand to be paid out of 27 418 OF PRIVILEGES. the proceeds of the immovables and slaves of the debtor, the paymenta must be made in the order laid down in the following chapter. 8 A. 4-36. CHAPTER VI. OF THE ORDER IN WHICH PRIVILEGED CREDITORS ARE TO BE PAID. Art. 3221. — If the movable property, not subjected to an^y special privilege, is sufficient to pay the debts which have a general privilege on the movables, those debts arc paid in the following order : Funeral charges are the first paid ; Law charges, the second ; Expenses of the last illness, the third ; The wages of servants, the fourth ; Supplies of provisions, the fifth ; 3 A. 428 ; 6 E. 85. The salaries of clerks, secretaries and others of that nature, the sixth ; And finall}', the wife's dower, the seventh. Art. 3222. — But when part of the movables are subject to special privileges, and the remainder of the movables are not sufficient to dis- charge the debts having a privilege on the whole mass of movables, or if there be equality between the special privileges, the following rules shall direct the determination. Art. 3223. — Whatever may be the privilege of the lessor, charges for selling the movables subjected to it are paid before that which is due for the rent, because it is these charges which procure the payment of the rent. 1 R. 445 ; 2 R. 350 ; 4 E. 366; 8 A. T04. Art. 3224. — The case is the same with respect to the funeral expen- ses of the debtor and his family ; when there is no other source from which they can be paid, they have a preference over the debt for tent or hire, on tlie price of the movables contained in the house or on the farm. 1 E. 445. Art. 3225. — But the lessor has a preference on the price of these movables, over all the other privileged debts of the deceased, such as expenses of the last illness, and others which have a general privilege on the movables. 17 L. 443; 1 E. 445. Art. 3226. — With regard to the crops which are subject to the lessor's privilege, the expenses for seed and labor, the wages of over- seers and managers are to be paid out of the product of the year, in preference to the lessor's debt. So also, he who has supplied the farming utensils, and who has not been paid, is paid in preference to the lessor, out of the price of their sale. 6 E. 85,484; 8 A. 2T6. Art. 3227. — If among the movables with which the house or farm, 419 OF PRIA^LEGFS. 419 or any other thing subject to the lessor's privilege, is provided, there should be some which were deposited by a third person in the hands of the lessor or farmer, the lessor shall have a preference over the deposi- tary, on the things deposited, for the payment of his rent, if there are no other movables subject to his privilege, or if they are not sufficient; unless it be proved that the lessor knew that the things deposited did not belong to his tenant or farmer. Art. 3228. — With the exception stated in the foregoing article, the privilege of the depositor on the thing deposited is not preceded by any other privileged debt, even funeral expenses, luiless it be that the depos- itor must contribute to the expense of sealing and making inventory, because this expense is necessary t*o the preservation of tlie deposit. 11 K. 4. Art. 3229. — The privilege of him who has taken care of the prop- erty of another, has a preference over that property, for the necessary expenses which he incurred, above all the other claims for expenses, even funeral charges ; his privilege yields only to that for the charges on the sale of the thing preserved. 6 A. 862. Art. 3230. — The privilege of the vendor on movables sold by him, which are still in possession of the vendee, yields to that of the owner of the house or farm which they serve to furnish or supply, for his rents. It yields also to the charges for affixing seals and making inventories, but not to the funeral or other expenses of the debtor. 2A.U. Art. 3231. — The privilege of innkeepers on the effects of travellers deceased in their house, is postponed to funeral and law charges, but is preferred to all the other privileged debts of the deceased. Art. 3232. — The privilege of carriers, for the cost of transportation and incidental expenses, yields only to the charges which would arise on the sale of the goods. The case is the same respecting the freight of goods carried on board a ship or other vessel. Art. 3233. — If the movables of the debtor, by reason of the spe- cial privileges affecting them, or for any other cause, are not sufficient to discharge the debts having a privilege on the whole movable proper- ty, the balance must be raised on the immovables sind slaves of the debtor, as hereafter provided. 3 A. 4.36. Art. 3234. — If the movables or slaves of the debtor are subject to the vendor's privilege, or if there be a house or other work subjected to the privilege of the workmen who have constructed or repaired it, or of the individual who furnished the materials, the vendor, workmen and furnishers of materials, shall be paid from the price of the object affect ed in their favor, in preference to other privileged debts of the debtor, even funeral charges, except the charges for affixing seals, making in- ventories, and others which may have been necessary to procure the Bale of the thing. 2 R. 280, 527 ; See 13 L. 8. Art. 3235. — When the vendor of lands finds himself opposed by i 420 OF PRIVILEGES. workmen seeking payment for a house or other work erected on the land, a separate appraisement is made of the ground and of the house, the vendor is paid to the amount of the appraisement on the land, and the other to the amount of the appraisement of the building. 1 E. 173. Art. 3236. — With the exception of special privileges, which exist on immovables in f\ivor of the vendor, of workmen and furnishers of materials, as declared above, the debts privileged on the movables and immovables generall}', ought to be paid if the movables are insuffi- cient, out of the product of the immovables and slaves belonging to the debtor, in preference to all other privileged and mortgaged creditors. The loss which may then result from their payment must be borne by the creditor whose mortgage is least ancient, and so in succession, ascending according to the order of the mortgages, or by ^?ro rata contributions where two or more of the mortgages have the same date. 3 A. 43G. Art. 3237. — When the debts privileged on the movables and im- movables cannot be paid entirely, either because the movable effects are of small value, or subject to special jirivileges which claim a pref- erence, or because the movables and immovables together do not suffice, the deficiency must not be borne proportionally among the debt- ors, but the debts must be paid according to the order established above, and the loss must fall on those which are of inferior dignity. IK. 445. CHAPTER VII. HOW PRIVILEGES ARE PRESERVED AND RECORDED. Art. 3238. — The vendor of an immovable or slave only pre- serves his privilege on the object, when he has caused to be duly record- ed, at the office for recording mortgages, his act of sale in the manner directed hereafter, whatever may be the amount due to him on the sale. 2 A. 251, SOO ; 3 A. 600 ; 6 A. 162. Art. 3239. — Architects, contractors, masons and other workmen, those who have supplied the owner with materials for the construction or repair of his buildings or other works, those who have contracted, in the manner provided by the police regulations, to make or put in repair the levees, bridges, canals and roads of a proprietor, preserve their privileges, only in so far as they have recorded with the register of mortgages, the act containing the bargains they have made, or the amount or acknowledgment of what is due to them, in all cases where the amount of the bargain or agreement, or the amount of the account or acknowledgment, exceeds the sum of five hundred dollars. 2 A. 549; 3 A. 19S; 4 A. 97; 5 A. 431; See 16 L. 292; Sco 3332. Art. 3240. — The privileges, enumerated in the two preceding arti- cles, are valid against third persons from the date of the act if it 421 OF PRIVILEGES. 421 has been duly recorded, that is to say, -within six days of the date, if the act has been passed in the place where the registry of mortgages is kept, or adding one day more for every two leagues from the place where the act was passed, to that where thcrso7is, with respect to a contract or judgment, are all who were not parties to it. In cases of failure, third persons arc par- ticularly the creditors of the debtor, who contracted with him without knowledge of the rights which he had transferred to another. 2 L. 122 ; 6 L. 539. TJtS BNO PROMULGATION OF THE CIVIL CODE. Extract from an Act passed by the Sixth Legislature^ of the St lie of Louisiana, in their Si^concl Session., entitled '•'•An Act to j^iovide for the printing and the promxdgation of the Amendments made to the Civil Code of the State of Louisiana^ Approved April I2th, 1824. Section I. — Be it enacted hy the Senate and Ho^ise of Rep>resc7ita- tives of the State of Louisiana, in General Assembly convened ; That the amendments made to the Civil Code of the State shall be in force from the day of their promulgation, as hereinafter provided. Sec. II. — And be it further enacted, That the said Code as amended, shall be printed in the English and French languages, opposite to one another, under the title of " Civil Code of the State of Louisiana." Sec. VII. — And be it further enacted, That when the said Civil Code shall be printed and received, the promulgation of it shall be made by the Secretary of State, by sending a copy thereof to each of the courts of and within this State, of which transmission the date shall be recorded in the office of the Secretary of State ; and one month after said transmission, the said Code shall be deemed promulgated, and shall henceforward be in full force throughout the State. A. B. ROMAN, Speaker of the House of Represoitatives. H. S. THIBODAUX, President of the Senate. Approved, April 12, 1824. TH. B. ROBERTSON, Governor of the State of Lozcisiana. GENERAL INDEX. THE FIGURES INDICATE THE NUMBERS OF THE ARTICLES. A. ABANDONMENT. Sepo.ration may be claimed in case of abandonment of the liusband by hn wife, or of the wife by her Inisband, in what manner, from 139 to 143. How a master may discharcje himself from the responsibility by him incurred in abandoning his slave, 181. Tlie abandonment of the land extinguishes the servitudes charged on it, 809. Of the abandonment of property made by a debtor to his creditors, v. cession of property. ABSENCE. Of the effects of absence upon the eventual rights which may belong to the absentee, from 77 to 80. Of the effects of absence respecting marriage, 81, v. absentees. ABSENTEES. Of the meaning of the word absentee, 3522. No. 3. Of the curatorship of absentees, from 50 to 57. Of th« putting into provisional possession the heirs of the absentee, from 68 to 76. Of the case of the minor children whose father has disappeared, from 82 to 86. Curators who have been appointed to absentees, or relations who have been put in possession of the effects of such absentees, can sue or be sued for a partition, 1238. Partitions in which absentees are concerned, must be made in a judicial manner, 1246. Absentees have a tacit or legal mortgage on the property of their cura- tors, 3282. How proscription by which property is acquired, runs against absentees, 3437, 3442, 3343, 3444, How prescription which releases from debts, is acquired against absen- tees, 3506. ABSENT HEIRS, v. curators, and counsel to absent heirs. ACCEPTANCE. Of the community between husband and wife. Rules relative thereto, v. community. Of donations inter vivos ; forms and effect of the acceptance of these dona- tions, from 1527 to 1533. Such acceptance is not required in donations made by marriage contract, 1732. 464 INDEX. ACCEPTANCE— ( Continuea). Of successions; ia what maimer successions may be accepted expressly or tacitly, 982. At what time succession may be accepted, from 972 to 981. When the acceptance of a succession is implied or not from certain acts, from 990 to 997. Who are the persons who can or cannot accept a sueces-^ion, from 998 to 1001. What are the effects of the acceptation of a succession, from 1003 to lOOG. ACCESSION. (Of the right of) what is so called, 490. Of the rig-lit of accession to what is produced by the thing, from 491 to 495, V. fruits. Of the right of accession to what unites or incorporates itself to the thing, 496. Of the right of accession in relation to immovables, from 497 to 511; in relation to movables, from 512 to 524. ACCESSORIES. The obligation of delivering the thing sold, includes its accessories and depen- dencies, 2466. ACCESSORY CONTRACT. Its definition in opposition to a principal contract, 1764. ACCIDENTS, V. fortuitous events. ACCOUNTS, To be rendered by the tutor of a minoi', from 350 to 356, by curators to vacant successions and to absent heirs, from 1179 to 1196, by the testamen- tary executor, from 1666 to 1668. ACCRETION. . (Right of) ; in succession ah intestato, the portion of the heir renouncing goes to his co-heirs of the same degree ; it is what is called tlie right of accretion, from 1015 to 1021. Tliis right does not exist in matter of testamentary dispositions, except in some cases provided by law, from 1699 to 1702. ACCRETIONS, Which are formed successively and imperceptibly to any soil situated on the bank of a river, to whom they belong, 501, v. alluvions. acknowledg:\ient. Of natural children hy their fathers and mothers, in whose favor it may be made, its forms and effects, from 221 to 223, v. natural children. ACQUESTS AND GAINS, v. community. ACTIONS. An action for the recovei'y of an immovable estate or an entire succession is considered as immovable, 403. Actions and obligations, the object of which is to recover money due or movable property, are considered as movables, 466. Actions in avoidance of a contract, from 1963 to 1989, v. contracts. Action of nullity and rescission of agreements and sale, v. nullity, rescission, y. hypothecary and redhibitory actions and reduction. ACTS under private signature. What contracts may be made imder private signature, 2237. Of the form necessaiy for their validity, 2238. Of the credit to be given to them, 2239. How the person, who did subscribe such acts, must acknowledge or deny his signature, 2240. Of the proof to be made when the signature is expressly denied, 2241. In case of sale or exchange of real property or slaves, the acts under private signature are valid against bona fide purchasers and creditors, only from the day on which they are registered in the office of a notary public, 2242, v. authentic, confirmative, conservatory and recognitive acts. INDEX. 465 ADJUDICATIOK How the jiroperty which minors hold in common wrth their fathers and mothers, may be adjudicated to the latter, 338. In what manner adjudication at public sales ought to be made, and of their effect, from 2585 to 2593, 2601. ADMINISTRATION. Of the tutor, from 327 to 356, v. tutor. Of vacant successions, v. curators to vacant successions. ADMINISTRATORS OF SUCCESSIONS. Of the appointment and duties of the administrator of a succession, the heir of which takes time for deliberating, 387 from 103-4 to 10-12, 10-16, 1052, and from 1055 to 1063. A.DOPTION. The adoption is abolished, 232. ADULTEROUS CHILDREN. Who are called so, 201. Tliey cannot be legitimated or acknowledged by their fathers and mothers, 217, 222, but they are entitled to alimony, 262. Adulterous and incestuous children can in no case inherit the estates of their natural fathers and mothers, 914. In what manner fathers and mothers arc restrained from disposing in favor of their adulterous and incestuous children, 1475. ADULTERY. The husband may claim a separation in case of adultery on the part of his wife, 136. Tlie wife may also claim such separation in case of adultery on the part of her husband, when he has kept his concubine in their common dwell- ing, 137. ADULTS. Males who have attained fourteen years complete, and females the age of twelve years complete, are distinguished by the name of adults, 40. ADVERTISEMENTS. What is understood by public advertisements, 3522. No. 4. AFFINITY, Is not an impediment to marriage, 98. AFFIXING OF SEALS, v. seals. AGE. Age forms a distinction between those who have and those who have not sufficient reason and experience to be masters of themselves, 34. Of the presumption of survivorship which results from the age of persons who have i)erished in the same event, from 931 to 933. AGREEMENTS, v. contracts. ALEATORY CONTRACTS, Defined, 2951. # ALEMBICS, When placed upon a tract of land for its service and improvement, are im- movable by destination, 459. ALIENATION. The persons who have been put into provisional possession of the estate of the absentee, cannot alienate his immovables and slaves, 70. When it is necessary to sell any of the slaves of the absentee, in what manner such sale may be made, 65. Minor's property cannot be alienated, except when it is for the interest of tho minor to do so, i-with what formalities such sale must be made, 338, 339. The immovables settled as a dowry cannot be alienated except in certain casjs, from 2337 to 2342. 30 466 INDEX. ALIMONY. Children are bound to maintain their father and mother and other ascendants who are in need, and this obligation is reciprocal on the part of the children and other descendants, 245. What is understood by the word alimony, 246. In what manner alimony must be granted, from 247 to 250. Fathers and mothers owe alimony to their natural children, aaA vice versa ; and of the rules relative to that obligation, from 256 to 261. Alimony is due to bastards, though they be adulterous and incestuous, by their mother and her ascendants, 202. ANIMAL. Of the responsibility of the master of an animal for the damage he has caused, 2301, V, beasts, cattle and ivild beasts. ANNUITIES. Perpetual rents and annuities are considered as movable things, 466. The annuities are civil fruits ; they are obtained day by day, and they belong to the usufructuary, 537, 540. Annuities bear interest from the day the debtor is in default, 1939, 2771. The contract of annuity defined, 2704. Annuity may be either perpetual or for life, 2765. Rate of interest on annuity for life, 2766. Constitiited annuity essentially redeemable, 2767. In what cases the debtor may be compelled to redeem the same, from 2768 to 2770. ANTICHRESIS. A sort of pledge, 3101, defined, 3102. Its form and efi'ects, from 3143 to 3148. APOTHECARIES. Of their privilege for medicines by them supplied to a deceased person during his last sickness, 3109. Of the prescription of their actions in payment of the medicines by them sold, 3503. APPARENT OR VISIBLE SERVITUDES. What are the servitudes so called, 724. How continuous and apparent servitudes are acquired by prescription, 34*70. APPLICATION AND CONSTRUCTION OF THE LAWS. Rules relative thereto, from 13 to 21. APPRAISEMENT, APPRAISERS, v. experts. APPRENTICES, Are a sort of free servants, 157. How apprentices may be engaged, and of the form and effect of their engage- ments, from 158 to 163. Are bound to fulfil their engagements, and when such engagements may be dissolved, from 104 to 166. How the master may correct his apprentice, 167. V. Engagejiient and master. AQUEDUCT. (Right of) a sort of conventional servitude, 707, 720. ARBITRATION. Defined, 3066. Form and object of the submission to arbitration, 3067, 3069, 3070. Who may or may not make a submission, 3068. Of the penalty generally agreed on by the siibmission, 3073. How the submission is put an end to, 3099. V. Arbitrators, award. INDEX. 467 ARBITRATORS. There are two sorts of arbitrators, SOY 6. How their powers are liniited with respect to their extent or duration, 3071 3072, 3089, 3090, 8091. Who may be appointed arbitrators, or are excluded therefrom, 3074, 3075. How the arbitrators and amicable compounders ought to determine the causes submitted to them, 3077. Of the oatli to be taken by them, 3078. Of the proceedings before the arbitrators, from 3079 to 3082. Of the umpire to be appointed in case the arbitrators cannot agree, and in wliat manner such umpire must act, from 3083 to 3086. Of the duties imposed on arbitrators, from 3088 to 3095, 3098. How their powers expire, 3072, 3090, 3091, 3099. In what manner tliey shall give their award, from 3092 to 3095. Of the homologation of the award, and of the appeal claimed therefrom, 3096, 3097. ARCHITECTS, v. Undertakers. ARREARAGES Of a rent charge, how prescribed against, ^503. ASCENDANTS Owe alimony to their descendanta, and vice versa, 245. How ascendants are appointed to the tutorship of their descendants, from 281 to 2R3. Of successions falling to ascendants, from 899 to 906. ASSIGNS. "What is the legal meaning of this word, 3522. No. 5. ASSIGNMENT OR TRANSFER Of debts and other incorporeal rights, from 2612 to 2624. How the delivery is operated between the assignor and the assignee, as it regards third persons, 2613. Of the effects of the want of notice of such transfer, 2614. The transfer of a debt includes the privileges and mortgages which are at- tached to it, 2615. Of the nature and extent of the warranty to which the assignor is liable, from 2616 to 2621. How he against whom a litigious right has been tran^erred, may be released therefrom, 2622. Exception to that rule, in what cases, 2624. When a right is said to be litigious, 2623. ATTORNEY AT LAW. A counsellor or attorney at law is not disqualified from being a witness in the cause in which he is employed, 2261. The actions of counsellors or attorneys at law for their fees and emoluments are prescribed against by three years, 3503. The actions of the parties against their attorneys for the return of the papers trusted to them, are likewise prescribed against by three years, 3504. ATTORNEY IN FACT. His duties, 2971, 2974. His responsibility, 2972, 2975. He is bound to render an account of his management to his principal, 2973. In what case he is answerable for the person to whom he has substituted his powers, 2976, 2977. The principal may even in that case act directly against the substi. tute, 2978. The attorney cannot go beyond the limits of his procuration, and in what cases he is not considered to have exceeded his authority, 2979, 2980. 468 INDEX. ATTORNEY IN" FACT— (Co wimwecO. The attorney is not responsible to those with ■whom he contracted in that capacity, unless when he has bound himself personally towards them, 2981, 2982. When there are several attorneys in fact empowered by the same act, they are not bound in solido, 2983. In what cases the attorney is bound to pay interest to his principal, 2984- AUCTION (Sale at), v. Public sales. AUTHENTIC ACT. When an act is considered as being in an authentic form, 2231. In what case an act which is deficient as authentic, may avail as a private writing, 2233. The authentic act is full proof of the agreement between the contracting parties and their assigns, unless it be declared and proved a forgery, 2233, 2235. The acknowledgment of payment in an authentic act cannot be contested xinder the pretence of the exception of no7i nimierata pccunia, 2234. AUTHOR. What is the meaning of this word, 3460. The possessor is allowed to make the sum of possession necessary to prescribe, by adding to his own possession that of his author, 3459, AUTHORITY OF THE THING ADJUDGED. What are the necessary requisites to give to a judgment the authority of tho thing adjuged, 22G9. AWARD. In what manner the arbitrators must give their award, from 3090 to 3095. The award, in order to be put into execution, ought to be homologated or ap- proved by the judge, but without any inquiry into its merits, except in case of appeal, 3096. An award may be appealed from, and how, 3097. The arbitrators having once given their award, cannot retract or change any thing in it, 3098. B. BAD FAITH. The heir who omitted by bad faitli to include in the inventory of the succes- sion any effects belonging to it, is thereby deprived of the benefit of inven- tory, 1054. Efifect of bad faith with respect to the restitution of the things unduly re- ceived, 2289, 2290. V. Good faith, posseswr. BAKERS. Tlieir claims for bread are privileged, 3158. Such claims are prescribed against by the lapse of one year, 3499, 3500. BANKRUPTCY, v. failure, failing circumstances. BANKS OF A NAVIGABLE RIVER. Their use is public, but their property belongs to those who possess the adja- cent lands, 446. What is understood by the banks of a river or stream, 448. BASTARDS. Children are legitimate cr bastards; what is understood by bastards, 21. Bastards belong to no family, and are not submitted to paternal autho- rity, 254. V. Adulterous, incestuous, and illegitimate children, BED OF A RIVER, v. river. INDEX. 469 BENEFICIARY HEIR. Duties of the heir who wishes to enjoy the benefit of inventory, 1027, 1028, 1031. During the term for deliberating, no judgment can be rendered against the beueficiaiy heir, 1045. At the expiration of the terra for deliberating, the beneficiary heir may be compelled to decide whether he accept or reject the succession, from 1048 to 1050. Effect of the declaration of the heir that he is willing to accept the succession only under the benefit of inventory, 1051. V. Benefit of inventory. BENEFIT OF DISCUSSION. The surety cannot be compelled to pay the debt, until after the property of the debtor has been pieviously discussed or seized, unless the security should have renounced the plea of discussion ; rules relative to that discus- sion, from 3014 to 3017, 3020. How that discussion may be required by the third possessor of the immov- able property or slaves subject to a mortgage, 3366, 3367. BENEFIT OF DIVISION. A debtor in solido may be sued separately without having a right to plead the benefit of division, 2089. I "When several persons are securities for the same debt, any one of them may demand that the creditor should divide his action, imlessthe securities have renounced the benefit of division, 3018, 3019. BENEFIT OF INVENTORY, Defined, 1025. What is to be done by the heir who wishes to enjoy that benefit, 1027, 1028. Of the inventor}' to be taken in case the heir takes such benefit, from 1028 to 1033. After the inventory, an administrator must be appointed; and the preference is to be given to tlie beneficiary heir, from 1034 to 1040. Such administrators are bound to give security, and what are their other duties, 1034, 1041, 1042, 1044, from 1055 to 1063. What are the advantages Avhich the heir derives from the benefit of inven- torj^ 1047. BILATERAL OR RECIPROCAL CONTRACT, defined, 1758. BILLS OF EXCHANGE. Actions for the payment of bills of exchange or negotiable notes, are prescribed against by five years, 3505, 3506. BONA FIDE POSSESSOR, v. possessor. BOOKS. The books of merchants are good evidence against them, and so are private books against him who has written them, 2244, 2245. BORROWER. Of the obligations of the borrower for use, from 2869 to 2876. How he must keep and preserve the thing, 2869, 2870. Of his responsibility witli respect to the thing lent, from 2870 to 2873. The borrower is not at liberty to keep the thing by way of compensation or set-ofT, 2874. He has no right to be reimbursed of the expenses he was compelled to make in order to use the thing, 2875. When several jx-rsons have jointly borrowed the same object, they are bound in solido to the lender, 2876. Engagements of the borrower for consumption, from 2891 to 2893. The borrower is obliged to restore the thing lent in the same quantity and condition, and at (he place and time agreed on, 2891. 470 INDEX- BORROWER— (Coniinwci). • If it be impossible for him to do so, lie is bound to pay the value of the thing lent, 2892. If he does not fulfil either of these engagements, he is bound to pay in- terest, 2893. BOUND SERVANTS, v. servants. BOUNDS. lie who removes or pulls up bounds, is liable to damages, 851. BRANCHES OF A FAMILY. If one root has produced several branches, how is the partition of a succession to be made, 894. BRANCHES OF A TREE. Every proprietor in the cities may compel his neighbor to cut off the branches and roots of the trees which extend on his estate, 687. BROKERS. The broker or intermediary who is employed to negotiate a matter between two parties, is considered as the mandatary of both, 2985. Of the obligations and responsibility of such agents, from 2986 to 2989. BROTHERS AND SISTERS. The representation is admitted in favor of the children and descendants ol the brothers and sisters of the deceased when they come to the succession, in concurrence with the uncles and aunts, 893. How brothers or sisters, or their descendants, inherit from their brother or sister deceased, jointly with the father and mother of the deceased, 899, 900, 907. Brothers and sisters inherit to the exclusion of other ascendants and col- laterals, 908. BCriLDINGS. Lands and buildings and other constructions are immovable by their nature, 455. Every one is bound to keep his buildings in good repair ; Rights of action of the neighbor, when a building threatens ruin, 666, 667. The owner of a building is answerable for the damage caused by its ruin, 2302, 2303. f BULK. What is the legal meaning of that word, 3522, No. 6. BUYER. Of the obligations of the buyer, from 2527 to 2543. Obligations of the buyer with respect to the payment of the price, from 2528 to''2530. When the buyer is bound to pay the interest of the price, 2531, 2532. Obligations of the buyer, by which he is bound to receive delivery of the thing, and to remove it, 2533, 2534. In what cases the buyer may suspend the payment of the price, from 2535 to 2537. BUTCHERS. Their privilege, 3158. Their actions for supplies of meat are prescribed by one year, 3499. c. CADUCIIX Of a testament or legacy, from 1690 to 1698. The testamentary disposition becomes without effect, if the instituted heir or the legatee does not survive tlie testator, 1081. Of the elfcct of conditions annexed to a testamentary disposition, 1691, 1692. INDEX. 471 CADUCITY— ( Continueil). The legacy falls, if the thing bequeathed has totally perished, 1693, 1G94. Difference in ease of an alternative legacy, 1695. The testamentary disposition fails, when the instituted heir or the legatee re- jects it, or is incapable of receiving it, 169G. So, by the birth of legitimate children of the testator, posterior to its date, 1698. CAPABILITY OF CONTRACTING. How insane persons, slaves, married women and minors, are incapable of con- tracting, 1775, 1776. Rules with respect to the incapacity of interdicted persons, 1777, 1781, 1782. — Of minors, 1778, from 1784 to 1789. — Of married Avomen, 1779, 1780, and from I78t to 1789. — Of slaves, 1783. — Of the persons who are deprived of the enjoyment of their civil rights, 1790. V. interdicted persons, married women, minors and slaves. CAPTATION. Proof is not admitted of the testamentary dispositions having been made through hatred, anger, suggestion or captation, 1479. CAPTURES FROM THE EXEMY, Are one of the five ways of acquiring property by occupancy, and are regu- lated by the law of nations, 3377, 3388. CARRIERS AKD WATERMEN, Are subject to the same obligations which are imposed on tavern keepers, in the title of deposit, 2722. Rules respecting their responsibility, 2724, 2725. CASUAL CONDITIONS, Defined, 2016. CATTLE, Intended for the cultivation of land, are immovable by destination, 459. If the usufruct consists of only one head of cattle which dies, the usu- fructunry is not bound to return another, or to pay the value of the same, 68G. What is his obligation when a whole herd of cattle is subject to the usu- fruct, 587. CAUSE. Prescription may be pleaded in every stage of a cause, 3427, v. prescription, CAUSE OF CONTRACTS. An obligation without a cause, or with a false or unlawful cause, can have no effect, 1887. When the cause of a contract is considered as illicit, 1889. What is meant by the cause of a contract, 1890. An agreement is not the less valid, though the cause be not express- ed, 1888. When a contract is considered as being without cause, 1891. Where the consideration or cause of a contract exists at the time of making it, but afterwards fails, in what cases it will not effect the contract, 1892, 1893. If the party can show the existence of a true consideration, the contract can- not be invalid.'iled, though the cause expressed in the contract be one that did not exist, 1894. CAUSES WIIICII DISPENSE OR EXCUSE FROM THE TUTORSHIP, from 319 to 321. Who are the persons dispensed or excused by the nature of their offices, from 312 to 314. Persons who arc not relations of the minor, or who are related to him only beyond the fourth degree, cannot be compelled to accept the tutor- ship, 315. 472 INDEX. CAUSES WHICH DISPENSE OR EXCUSE FROM T»E TUTORSHIP— (Con- tlmted). A person may be excused from the tutorship by his age, infirmities, or the number of tutorships to which he has been already appointed, from 316 to 318. In what manner and at what time the tutor must propose his excuses against his appointment ; he is bound to administer provisionally during the pen- dency of the suit relative thereto, 319, 320. No excuse whatever may dispense the father from accepting the tutorship of his children, 321. CAUSES, For which a ]-)erson may be excluded or removed from tutorship V. Incapacity, exclusion, and deprivation of tutorship. celebration' OF MARRIAGES. By whom marriages may be celebrated, 101, 102. No marriage canbe celebrated without the license of the_ parish judge ; in what manner this license must be granted, and how opposition may be made to the granting of it, from 103 to 106, from 108 to 110. In whose presence the marriage must be celebrated; act to be made of such celebratiion, 107. No marriage ciin be contracted by procuration. 111. CERTAIN, UNCERTAIN. What is the legal meaning of these words, 3522, No. 8. CERTAIN CONTRACTS. Definition of contracts which are certain, 1*768. CESSION OF PROPERTY, Defined, 2166. Two kinds of cession, 2167, 2168. Both are subject to formalities prescribed by special laws, 2169. What is the benefit of the voluntary cession of property, and of its effects, 2170, 2172, 2173. The cession of goods does not transfer the property to the creditors, but only gives them the right of selling it, 2171. The creditors cannot refuse the cession of property, except in case of fraud, 2172. Of the rights which the debtor preserves on the property thus surrendered, after the cession has been made, 2174, 2175. Of the rights which the cession confers upon the creditors, from 2176 to 2178. What are the eff"ects which the debtor is not bound to abandon to his credi- tors, 2179. In what manner the sale of property surrendered to creditors must be made, 2180. CHARGES. Of the charges which the usufructuary is bound to support, 572, 573. CHILD, CHILDREN. Children arc legitimate or bastards, 27. ChildreTi born dead are considered as if they had never been born or con- ceived, 28. Children in their mother's womb are considered as if they were already born, and of their rights, 29. Children are legitimate or illegitimate, 197. When the child is or is not deemed capable of living, 205 ; and when his le- gitimacy may be disputed, from 204 to 211. How the filiation of legitimate children may be proved, v. filiation. How children, born oiit of marriage, may be legitimated, v. legitimation. Y. Bastards, illegitimate, legitimate, and natural children. CHILDREN OF COLOR. In what manner proof of acknowledgment of children of color may be made, 221. I INDEX. 473 CHILDREN OF SLAVES. Children born of a mother in slavery follow the condition of their mother, and belong to the master of such mother, 183, 492. The usufructuary has only the enjoyment of their labor or services, 539. Children of slaves are considered as natural fruits, 537. The child born of a woman, after she has acquired the right of being free at a future time, becomes free at the period fi.xed for her enfranchise- ment, 196. CHIMNEY. At what distance and in what manner a chimney must be constructed near a wall, whether held in common or not with a neighbor, G88, 689. CITATION. In what manner prescription is interru2:)ted by a citation, 0484, 3485, 3517, 3518. CITIES. Things which are for the common use of a city, are public things, 445. Things which belong in common to the inhabitants of cities, are of two kinds, 449. CITY COUNCILS Have the right to m.ake regulalions to determine the mode of proceeding to pull down houses in order to arrest the progress of fire, 668. CIVIL FRUITS. What fruits are so called, 537. — They belong to the usufructuary, 536, and they are acquired day by day, 540, \. fruits. CIVIL OBLIGATIONS, Defined, 1750. Their different kinds, 1753. CIVIL POSSESSION, Defined, 3390, 3392: in what it diflfers from natural possession, 3394; how it may be retained, 3468, v. possession. CLAUSES, V. penal clauses. CLERKS AND SECRETARIES Have a privilege for their salaries, 3158, 3181 ; their actions for the same are prescribed against by three years, 3503. CLERKS OF COURTS. ) The actions for their fees are prescribed against by three years, 3503. CLOTHES, V. linen and clothes. CODICIL. The form of disj^osing by codicil is abolished, 1563. COH.VBITATION Between husband and wife, is ever presumed in case of a voluntary separa- tion, 207. The proof of cohabitation with the reputed father, though sujiported by oath of the motlier, is not sufficient to establish natural paternal de- scent, 228. COHEIRS, V. heirs. COLLATERAL LINE. What is so called, 886. How the degrees are counted in that line, 888. In whose favor the representation is admitted therein, 893 ; and how brothers and sisters inherit in that line, 907, 908, 909. COLLATERALS. How collaterals inherit in defect of brothers and sisters, 910. 474 INDEX. COLLATION. What is meant by collation, from 1306 to 1319. How it is due by children and other descendants, from 1306 to 1318. How they ma}^ be dispensed with the obligation of collating, from 1309 to 1312. Who are the children and descendants who are bound to collate, from 1313 to 1319. To whom the collation is due, and what things are subject to it, from 1320 to 1328. To what succession it is due, 1320. What thinijs are and what things are not subject to be collated, 1320, and from 1322 to 1325 and 1328. How collations are made, and in what waj-s, from 1329 to 136Y. Of the collation when made in kind, 1320; and when made by taking less, 1331. Of the collation when the things given were immovables, from 1333 to 1360; when they consisted in slaves, 1361, 1362 ; when in movable effects, 1363 ; when in S2')eeie, l.'?6i. COMMERCIAL TARTXERSHIPS, Defined, and their kinds, 2796, 2798, 2799. Their particular rules, 2823. COMMISSION. Granted to tutors of minors, 342. To administrators of successions, in case the heir has taken the benefit of in- ventorj^ 1062. To curators of vacant successions or absent heirs, 1187 to 1190 and 1200. To testaraentar}'' executors, from 1676 to 1680. COMMON PROPERTY Between husband and wiftj, 2314. COMMUNITY. Of acquets and gains between husband and wife, from 2369 to 2393. How marriage produces by itself that community, 2369, 2370. What are the effects included in that community, 2371. What debts are excluded therefrom, 2372. Of the power of the husband on the propert}^ of the community, 2373. Of the partition of the common effects at the dissolution of the community, from 2374 to 2377. How the wife and her heirs may renounce that community, v. renun- ciation. How the community may be modified or limited by the marriage contract, and how the husband and wife may agree therein that there shall be no community between them, from 2394 to 2398. V. Separation. COMMUTATIVE CONTRACTS, Defined, 1761 ; when presumed such, 1763. COMPARISON OF WRITING. When that kind of proof may be resorted to, 2241. COMPENSATION OR SET-OFF, is one of the manners of extinguishing a debt, 2126. When it may be opposed, from 2204 to 2206 ; and when not, 2207, 2209, 2210, 2213. The surety may oppose the compensation of what the creditor owes to tho principal debtor, 2208. COMPROMISE OR TRANSACTION, v. transaction. COMPULSORY TRANSFER OF PROPERTY. When it may take place, 2004, 2605. Of the compensation to be granted to the owner, and in what manner it ia settled, from 2005 to 2610. INDEX. 475 COMPULSORY TRANSFER OF VROFERTY— {Continued). Of the recourse of the true owner against the person who has unduly received sucJi compensation, 2G11. CONCUBINAGE. Persons wlio live in open concubinage, are respectively incapable of making to each other any donations, except of movable effects up to a certain amount, 1468. CONCUBINES. Tlie wife may claim her separation for the adultery of her husband, if he has kept his concubine in the common dwelling, 137. CONDITIONS, Required to contract marriage, 91, 92. Conditions impossible, or contrary to the laws or morals, inserted in dona- tions, ai'C deemed not written, 1500. How donations may be revoked on account of the non-performance of the con- ditions annexed thereto, 1546, and from 1552 to 1555. CONDITIONS IN CONTRACTS. Their several kinds, from 2016 to 2021 ; their effects, from 2023 to 2037. Of the suspensive condition and its effects, from 2038 to 2039. Of the resolutory condition, from 2040 to 2042. CONDITIONAL OBLIGATIONS, v. oWgations. CONFESSION, Of payment, contained in an authentic act, cannot be contested under the pre- tence of tlie exception oi non iiumcrata pecu?iia, 2234. Confession is of two kinds, 2268. Of extra-judicial confession, 2269. Of judicial confession, 2270. CONFIR]\IATIVE ACTS, And their effects, from 2252 to 2254. CONFUSION. Effect of confusion in matter of servitudes, from 801 to 808; and for the ex- tinguishment of obligations, 2214, 2215. CONJUNCTIVE OBLIGATIONS. Defined, 2058 ; how created, 2060. CONSANGUINITY. The propinquity of consanguinity is established by the number of genera- tions, 885. CONSENT OR ASSENT Necessary to give validity to a contract, from 1791 to 1813. Of the nature of the assents, and how it is to be shown, from 1791 to 1812. What defects of consent will invalidate a contract, 1813. V. Error, fraud, violence, threats. CONSERVATORY ACTV^. Merc conservatory acts do not amount to an acceptance of a succession or of a community, 991, 2381. CONSIGNEE OR COMMISSION AGENT. Of his privilege on the goods consigned to him, 3214. CONSIGNMENT In case of a tender of payments, its effects, 2163. CONSIGNOR. Of his right to claim his goods in the possession of the consignee who has failed, and of his privilege on their price, if still due, 3216. CONSTRUCTION OF THE LAWS. (Rules respecting the,) from 13 to 2L 47G INDEX. CONSTRUCTIONS. Wliic-h the owner may make on his land, 497. He is presumed to have made those which exist thereon, and at his own ex pense, 498. Of the case wlien the owner of the soil makes conkructions with materials be longing to another, 499. When a third person has made constructions with his own materials on the land of another, what is the right of the owner, 500. CONTINUOUS OR NON-INTERRUPTED SERVITUDES, Defined, 723 ; how may be acquired by prescription, 3470. CONTRACTS. Definition and nature of a contract, 1754. General dispositions relative to contracts, from 1755 to 1771. Of the several kinds of contracts, 1758, and from 1760 to 1769. Of the requisites to the formation of a valid contract, 1772. Of the parties to a contract, and of their capability, from 1773 to 1794. Of the /sonsent necessary to give validity to contracts, from 1791 to 1812. "What defects of consent will invalidate a contract, 1813. Of the object and matter of contracts, from 1877 to 188G. Of the cause or consideration of contracts, from 1887 to 1894. V. Obligations. CONTRIBUTION. What is so called with respect to the payment of the debts of a succes- sion, 1869. How the usufructuary, under an universal title, is bound to contribute to the payment of the debts of the succession of the testator, 580, 581. How legatees under an universal title contribute to the same, 1606. When there are several heirs, each of them contribute to the payment of the debts, in 'what proportion, 1369. CONVENTIONAL MORTGAGES, Defined, 3257 ; rules relative thereto, from 3258 to 3278. CONVENTIONAL OBLIGATIONS, v. obligations. CONVENTIONAL SERVITUDES. From 705 to 721. Of the general division of servitudes into urban and rural, 706, Of the several kinds of urban servitudes, from 707 to 716. Of the several kinds of rural servitudes, from 717 to 722. Of the division of servitudes into continuous and discontinuous, apparent or non-apparent, 723, 274. COPIES OF TITLES. Proof resulting therefrom, from 2247 to 2250. CORPORATIONS, Defined, 418. Of the nature of corporations, of their use and kinds, from 418 to 422. Of their privileges and incapacities, from 423 to 537. Of the dissolution of corporations, 133. CORPOREAL THINGS, Defined, 451. CO-TUTOR. When the mother retains the tutorship of her children by a first mar riage, her second husband becomes ipso facto the co-tutor of such chil- dren, 273. COUNSEL FOR THE ABSENT HEIRS. When appointed, and his duties, from 1204 to 1213, and 1654, 1655. COUNSELLOR AT LAW, v. attorney at law. INDEX. 477 COUNTER-LETTERS Have no effect against creditors or bona Jlde possessors, 2236. CREDITORS May intervene in the suits, the object of which is to deprive their debtor of the unsufruct granted to him, 618. They may cause to be annulled any renunciation wliich their debtor may have made of liis right of usufruct to their prejudice, 619. They arc authorized to accept a succession which their debtor refuses to accc]it, or to which he has renounced, and in what manner, 1014, and from 10(34 to 1067. Of their rights, when a presumptive lieir of a succession refuses or neglects to act as such, 1029, 1030. What they are authorized to do, when the heir takes a term for delibera- ting, 1045. After what time they may compel the heir to decide whether he accepts or not, 1048. The creditors of the wife may attack the renunciation to the community which she may have made to defraud them, 2390 ; but they cannot, Avith- out her consent, petition for a separation of property between her and her husband, 2407. The creditors of the husband may object to such separation, even when de- creed and executed, if made to defraud them, 2408. Of the privilege of the creditor on the tiling given to him on pledge, 3187. The creditors may plead prescription for the purpose of acquiring property, tlwugli their debtor have renounced to such right, 3429. (KEDITORS IN SOLIDO. Of the rules which govern obligations between them, from 2083 to 2085. CREW. Of the privilege of the ofiicers, sailors, and others of the crew of a ves- L. sel, 3204 Their claims for their salaries or wages are prescribed against by one year, 3499, 3500. CROP. Standing crops are considered as immovable, 456. V. Fruits. CRUEL TREATMENT. The judge may order the sale of a slave against the will of the master, if such master be convicted of cruel treatment towards him, 192. CURATORS, CURATORSIIIP. Of the curator of the child in his mother's womb, 29, 415. Curators to absentees; when they are appointed, and how, 50, 51, 414. Of their oath ; of the inventory to be taken by them, and of the security they are bound to give, 52. Of their powers and duties, 53, 54, 56. How their curatorship ends, 55. Of the curator ad hoc to be appointed to an absentee in the suits in which he is concerned, 57. Curators of minors, 257. * There are two kinds of these curators, 358. Of the curators ad bona, their powers and duties, from S51 to 366. Of the curators ad litem, from 364 to 366. Of the curator ad hoc, who is appointed in certain cases to the emancipated minor, 372. Tlie minor who is emancipated otherwise than by marriage, cannot sue or be sued, without being assisted by a curator ad litem, 378. Curators to insane persons and others, 31. At what time curators arc appointed to insane persons, 397 478 INDEX. CURATORS, CURATORSlllP— {Continued). Who may be appointed in that capacit}', and of their power and duties as such, 399, 400, 402. Of the curators to be appointed to persons incapable of administering their property on account of infirmities, 32, 409. Of the cui'ators who are appointed to other persons, from 414 to 417. Curators to vacant successions and absent heirs. Of the appointment of such curators, from 1105 to 1125. Of the duties and powers of such curators, from 1126 to 1148. Of the cause for which such curators may be dismissed or superseded, from 1149 to 1152. How such curators must proceed to the sale of the effects and to the liquida- tion of the successions by them administered, from 1153 to 1178. Of the account to be rendered by thom, and of the commission which they are entitled to, from 1179 to 1196. Of the duties of such curators, when their administration is prolonged beyond the legal term, from 1197 to 1203. CUSTOilS, Defined, 3. D. DAMAGE, V. loss, waste. DAMAGES. Of the damages which are due in case of inexecution of obligations to do or not to do, from 1920 to 1922. Of the damages resulting from the inexecution of obligations in general, from 1924 to 1939. The seller who knows the vices of the thing sold and omits to declare them, is answerable in damages, 2523. Of the damages to which the seller may be subject, when he declared that the thing sold possessed some quality which he knew it did not possess, 2525. When the buyer is bound in damages on account of the delay in the pay- ment of the price, 2543. DATIVE TUTORSHIP. Rules relative thereto, from 288 to 296. V. Tutorship. DATIVE EXECUTORSHIP. In what case the judge shall appoint a dative executor, and of the duties of such executor, 1671, 1672. DEAF AND DUMB Are incapable of being witnesses to a testament, 1584. DEATH. The execution of a testament shall not be ordered until the decease of the testator has been suflaciently proved, 1638, 1639. DEBTORS IN SOLIDO. Of the rules which govern the obligations with respect to debtors in solido, from 2086 to 2103. DEBTS. Of their payment, from 1368 to 1416. How the heirs and the legatees, tinder an universal title, are bound to contribute to the payment of the debts of a succession, from 1369 to 1379. How the usufructuary, under an universal title, is bound to contribute to the same, 550, 581. Of the manner in which the debts of a succession administered by curators, executors, and administrators, ought to be paid, from 1051 to 1061 ; from 1167 to 1177 and 1663. r INDEX. 479 DEDUCTIONS, (Of the) to be made before proceeding to partitions, from 1279 to 1284. DEFAMATION (Public) is a cause of separation, 139. DEFAULT (To be in), in liow many ways a debtor may be put in defaultj for not exe(?uting his obligations, and effects of such default, from 1904 to 1908, and 1913. DEFECTS OF A THING, v. vices, DEFINITIONS (general) of law, 1, 2. DEGREES OF RELATIONSHIP. In matter of relationship, each generation is called a degree, 885. The series of degrees forms the line, 886. How degrees are counted in the direct line, 887. How in the collateral line, 888. V. Zine. DELEGATION, Defined, 2188. Does not operate a novation except in what case, ibid, DELIBERATING (term for), v. term. DELIVERY. Of the obligation to deliver an object, and of the effects of such an obligaticn, from 1904 to 1919. Tlie seller is bound to deliver the thing sold, 2459. Tradition or delivery defined, 2452. How the delivery of movable effects takes place, 2t53. How that of slaves, 2454. How that of immovables, 2455. How tliat of incorporeal rights, 2457. Of the rules with respect to the delivery or tradition, from 2465 to 2475. DEPOSIT. Defined, 2897. Of its different kinds, 2898. Of the deposit properly so called, from 2899 to 2934. What may be its object, 2899. It is essentially gratuitous, 2900. Is perfected only by real or fictitious delivery, 2901. Of voluntary deposit; rules respecting it, from 2903 to 2907. The imperfect deposit is abolished, 2934. Of the necessary dejiosit, from 2935 to 2940. V. Sequestration. DEPOSITARY. Of the obligations of the depositary in general, from 2908 to 2930. His duties, 2908, 2900, and from 2911 to 2919, 2930. His rcsponsibilitj^ from 2910 to 291 G. To whom the thing deposited must be restored, from 2920 to 2923. In what place it must be restored, 2924, 2925. At what time, 2926. Tlie depositary cannot retain the thing by way of compensation or set-ofl, 2927. "When several persons have received the same thing in deposit, each of them is bound to restore the whole, 2928. The unfaithful depositary is not admitted to the benefit of cession, 2929. DEPOSITOR. Of the obligations and rights of the depositor, from 2931 to 2933. How the depositor lias a right to reclaim the thing deposited, when it exists in kind in the hands of the depositary or assigns, 2932. Of his privilege on the price of that thing, if still due, in case the depositary has disposed of the Bame. 480 INDEX. DERELICTIONS. Defined, to whom they belong, 502. DESCENDANTS. Of the duties of descendants toward their ascendants who are in need, 245 Of successions falling to descendants, 898. DESTRUCTION. The destruction of a building on which an iisufruct is established, puts an end to such usufruct, 608, 609. Servitudes are extinguished by the desti'uction- of the estate which owes the same, 779. 'When the thing which is the object of the obligation is destroyed, how far the obligation is extinguished, 2216, 2217. DIRECT LINE. What is called so in matter of relationship, 886. How the degrees are counted in the direct line, 887. DISCUSSION, V. tencjit of discussion. DKCONTINUOUS OR INTERRUPTED SERVITUDES. Defined, 723. They cannot be acquired by prescription, 762. DISINHERISON. How forced heirs may be deprived of their legitime or legal portion, 1609. What are the requisites for a valid disinherison, from 1510 to 1612 and 1616. Of the causes for which parents may disinherit their children, 1613. Of the causes for which ascendants may disinherit their descendants, 1614. Of the causes for which children may disinherit their parents, 1615. Of the effect of a valid disinherison, 1617. DISMISSAL, V. removal. DISPOSABLE PORTION. Of the portion reserved to the children and descendants in the succession of their fathers and mothers, 1480. Of the legal portion reserved to the father and mother in the succession of their children and descendants, 1481. Rules respecting the disposable portion, from 1483 to 1488. DISPOSITIONS. Mortis causa, v. testaments, testamentary dispositions. DISSOLUTION. Of corporations, v. corporations. Of marriage, v. marriage. Of partnership, v. partnership. DISTANCE. Of the distance and of the intermediary works required for certain build- ings, from 688 to 691. DISTINCTION, Of persons, from 24 to 41. DISTRIBUTION. What is understood by distribution among creditors, 3522, No. 10. DITCHES IN COMMON. Every ditch between two estates is supposed to be held in common, 685. A ditch held in common, is to be kept at the expense of the two contiguous proprietors, 686. I INDEX. 48 i DIVISIBLE OBLIGATIONS. Their difference from the indivisible obligations, 2104. Of the effects of divisible obligations, 2107, 2108. DIVISION, V. benefit of division. » DOMESTIC BOOKS OR PAPERS. Wiiat proof may be derived from them, 2244. DOMESTICS OR SERVANTS. Who are the persons called by lliat name, 3172, v. servants. DOMESTIC ANIMALS, 3382. DOMICIL. Whei'c is the domicil of every citizen, 42. Wliat is understood by the principal establishment of a person, ibid. How a change of domicil is produced and proved, from 43 to 45. Of the domicil of the public functionaries, 46, 47. Of the domicil of the minor and of the married woman, 48. Of the domicil of the persons of full age who constantly labor with, or serve others, 49. DONATIONS. Intcr-vivos and mortis causa, rules common to both, from 1463 to 1509. General dispositions, from 1453 to 1455. Of tiie capacity necessary for disposing and receiving by such donations, from 1-156 to 1479. Of the disposable portion and the legitime, from 1480 to 1488. Of the reduction of donations which exceed the disposable portion, from 1489 to 1505. Of dispositions reprobated by law in donations, from 1506 to 1509. DONATIONS INTER-VIVOS. Defined, 1454. General dispositions, from 1510 to 1522. Of the form of donations intcr-vivos, from 1523 to 1545. Of the exception to the rule of the irrevocability of donations inter-vivoa, from 1546 to 1562. V. Revocation, DONATIONS MORTIS CAUSA. Defined, 1455. V. Testaments. DONATIONS MADE BY MARRIAGE CONTRACT. To the husband or wife, licable to error, violence, and fraud in contracts, 1875, 1876. Of the fraud for which contracts may be avoided at the suit of persons who have not been parties thereto, from 1973 to 1979. Within Avhat time the action of nullity on account of fraud must be brought, 2218. The renunciation of warranty in matter of redhibitory defects is not binding, if there lias been fraud on the part of the seller, 2526. What is understood by fraud in speaking of the preference which is given by the debtor to one of his creditors over the others, S324. FREEMEN. Who ai-e considered as such, 38. FREIGHT. Of the privilege of the captain for his freight, 3213. The cla.ini for freight is prescribed against by one year, how, 3499, 3500. FRUITS. Of the several kinds of fruits, 537. Of natural fruits, ibid. Of civil fruits, ibid. Fruits of trees not gathered, are immovable, 456. Of the fiuits of a real estate, since its seizure, 457. All the fruits belong to the owner of the thing by right of accession, from 491 to 493. ■ They must be returned with the thing by the possessor, unless he held it bona fide, 494. In case the thing is subject to usufruct, all its fruits belong to the usufructuary, from 536 to 541. The proceeds or fruits of the dotal property belong to the husband, 2329. In what c;>se the fruits of the'paraphernal property of the wife belong to the conjugal partnership, 2363. When the husband is accountable, and may be sued for them, 2365, 2368. How the fruits, hanging by the roots at the time of the dissolution of tho mar- riage, are divided, 2376. FULL AGE, V. persons of full age, majority. FUNERAL CHARGES. Of their privilege, 3158, 3219. What is understood by funeral charges, 3159. How their amount may be reduced in certain cases, 3160, 3161. INDEX. 487 a GAINS AND ACQUESTS, v. comviunitjj. GAMING. There is no action for the payment of what has been won at gaming or by a bet, except in certain cases, 2952; but the loser cannot recover what he has voluntarily paid, 2953. GENERAL DEFINITIONS OF RIGHT, 1, 2. GENERATIONS. The propinquity of consanguinity is established by the number of generations , each ireneralion is called a degree, 885. In the direct line there are as many degrees as there are generations, 887. How counted in the collateral line, 888. GIVING IN PAYMENT, Defined, 2625. In wlmt it differs from the contract of sale, and effects of this difference, from 2626 to 2628. Rules which are common to both contracts, 2629. GOOD FAITH. Of the effects of good faith in matter of prescription by which property is ac- quired, 2436, 2-439. Of the good faith necessary in the prescription of ten and twenty years, from 3442 to 3444, 3446, 3448. Good faitli is alwaj's presumed in matter of proscription, 344'7. In the prescription of thirty year?, good faith is not necessary, 3465, 3470. Of the good faith necessary for the pi-escription of movables, 3472 ; when it is not required, 3475. Good faith is in no case necessary to claim the benefit of the prescription whicli operates a release from debt, 3496. GOOD MORALS. The cause of a contract is illicit when it is forbidden by law, contrary to moral conduct or to public order, 1889. GRANDCIIILDREX. When they are obliged to collate, and when they are reputed to be exempt from that obligation, from 1316 to 1319. GRANDMOTHER Of the minor is the only woman who may claim the tutorship by the effect of the law, 284, 322. But she is not compelled to accept it, 284. GRATUITOUS CONTRACTS, Defined, 1766. GUARDIAN OF SEALS. By whom appointed, 1079. When the seals have been broken or altered, the judge shall take the declaration of the guardian as to the causes of such breaking or alter- ing, 1086. H. HAZARDOUS CONTRACTS, Defined, 1769. HABIT.VTION. Right of habitation defined, 622. • Of the rules which are common to use and habitation, 623, 626, 627, 630, and from 036 to 641. Of the security to be given by the person who enjoys the right of habitation, and of the other duties imposed ou him, 624, 640. 488 INDEX. HEIRS. There are three sorts of heirs, 8l5. Who is called the presumptive heir of a person, 876. Of unconditional heirs, 877, 878. Of beneficiary heirs, 879. The heir is the universal suceessorof the deceased, 880. Of legitimate heirs and their difi'erent classes, from 882 to 884 Howthey contribute to the iiayment of tlie debts, 1376, 1377. Y. Absentees, forced heirs. HERITABLE OBLIGATIONS. How an obligation is heritable; distinctions upon that subject, 1992, 1994, 1998, and from 2001 to 2004, 2006. HIRE OF MOVABLES OR IMMOVABLES. How the action for arrearages of such hire is prescribed against by three j^ears, 3503. HIRING, T. letting and hirivg. HOMOLOGATION OR APPROBATION OF THE JUDGE. When necessary', 1164, 1165, 1296, 1297, 1299, 3096. HORSES AND MULES, AND OTHER ANIMALS. Of their redhibitory defects, 2503, 2504, 2506. HOUSE RENT. No house rent is due by the widow; during what time, 2391. HOUSES. The sale or gift of a house ready furnished, includes only sucli furniture as is in the house, 471 ; that of a house with all that is in it, does not include the money nor the debts or other rights, 472. V. Buildings. HUNTING. One of the ways of acquiring property by occupancy, 3377. HYPOTHECARY ACTION. How it may exist against heirs, 1370, 1382, 1384, 1385, 1386, 1387. Of the hypothecary action which is exercised against the debtor or his heirs, 3361. Of the hypothecary action which may be exercised against thii'd possessors, from 3362 to 3373. Of the plea of discussion which may be opposed by the third possessor, and of its effects, 3366, 3367. Of the relinquishment which may be made by the third possessor, and of its effects, from 3.'')68 to 3372. Of the action of the third possessor against the debtor, when he has either paid the debt or relinquished the property, 3373. HUSBAND. In what cases the husband may disown the child, andin what cases he cannot, from 204 to 211. When lie may, without the concurrence of his wife, claim the partition in which he is concerned, 1240. Of the power of the husband upon the dowry of his wife, 2327, from 2329 to 2331 ; and upon the property held in common between them, 2373. When he has the administration of the paraphernal property of his wife, effects of that administration, from 2362 to 2365. V. Dowry, community, paraphernalia. HUSBAND AND WIFE. Of the rights of the husband or wife of the absentee, 65. Of the respective rights and duties of husband and wife, from 121 to 132. The husband cannot bo a witness either for or against his wife, nor the wife for or against her Imsband, 2260. INDEX. 489 HUSBAND AND 'WIFE— (Continued). Husband and wife cannot enter into any agreement, the object of which would be to alter the legal order of descents, or to derogate to the conjugal or pa- ternal authority, ^2306, 2307. Husbands and Avivcs caunot prescribe against each other, 3489. V. Married persons. IDIOTS AND LUNATICS, v. persons insane or interdicted. IGNORANCE OF THE LAAV. No one can allege ignorance of the law, after its promulgation, 7. ILLEGITIMATE CHILDREN. Who arc called so, 109. Illegitimate ehildfeii are of two kinds, 200. Who aie those who may be legitimated, and in what manner, 217. Illegitimate children, who have been acknowledged by their father, are called natural children, 220 ; but though duly acknowledged, they cannot claim the riglits of legitimate children, 224. V. Bastards, natural children. ILL TREATxMENTS, Are a cause of separation, 138. IMMEMORIAL POSSESSION, What it is, 762. IMMOVABLES. A division of things is in movables and immovables, 452. Of immovables in general, from 453 to 468. Of immovables by their nature, 455 ; by their destination, 459, 460 ; by the disposition of the law, 456, 457, 458, 461 ; by the object to which they re- late, 462, 463. IMPLEMENTS OF HUSBANDRY, Are immovable by destination, 459. IMPOSSIBILITIES. What is considered as impossible in the meaning of the law, 2028. IMPOSSIBLE CONDITIONS, Contained in donations inter vivos or mortis causa, are reputed not ■writ- ten, 1506. How far impossible conditions may render void the agreement which depends on them, 2026, 2027. IMPOTENCY. The husband cannot disown the child by alleging his natural impotence, 204. IMPROVEMENTS. The usufructuary may make improvements and repairs on the estate subject to the usufruct, 561 ; but he cannot claim any compensation for the same at the expiration of the usufruct, 589, What improvements he may set off against the damage he has caused to the property of which he had the usufruct, 590. Tiic donee, who collates in kind a real estate which has been given to him, must be reimbursed for the expenses which have improved the same, 1334. IMPUTATION OF PAYMENT. How done, from 2159 to 2162. 490 INDEX. INCAPACITY. Of beins^ tutor, 322, 325. Of being heir, from 928 to 957, 959, 969. Of disposing or receiving by donation, from 1456 to 1418. Of contracting, 1775, 1776, 1779, 1782, 1784. INCESTUOUS CHILDREN. What children are so called, 102. The}' cannot be legitimated, 217 ; nor acknowledged, 222. They cannot inherit their natural fathers and mothers; they may only re- ceive alimony from them, 914, 1475. INCORPOREAL THINGS. Defined, 451. They are considered either as movables or immovables, according to the object to which they relate, 402. What incorporeal rights are considered as immovable, 463. What are considered as movable, 466, 467. INDEPENDENT COiS TRACTS. Defined, 1762. LN'DICATION OF PAYMENT. The mere indication made by a debtor of a person who is to pay in his place, does not operate a novation, 2190. INDIVISIBLE OBLIGATIONS. How an obligation is indivisible, from 2104 to 2106. Of the eff"ects of indivisible obligations, from 2109 to 2112. INEXECUTION OF CONDITIONS May cause the revocation of a donation inter-vivos, 1546, and from 1552 to 1555. Of contracts, v. damages. INFAMOUS PERSONS Cannot be witnesses, 2260. INFIRMITIES. . ■. . Persons incapable of managing their own affairs by reason of infii'mities, are placed under the care of curators, 32, 409. Of the infirmities which may excuse from tutorship, 317. INGRATITUDE. A donation inter-vivos may be revoked on account of ingratitude, 1546. The revocation on account of ingratitude can take place only in three cases, 1547. Within what time, by whom, and against whom the action must be brought, 1548. Of the effect of that revocation, and what donations cannot be revoked for cause of ingratitude, from 1549 to 1551. INJURIOUS WORDS. The action for injurious words is prescribed against by one year, 3501, 3502. INN-KEEPERS _ Are responsible as depositaries for the effects brought by travellers who lodge at their house; effects of that responsibilit}', from 2936 to 2940. Of the privilege of inn-keepers, and upon what effects it is exercised, 3158, 3178, 3180, and from 3199 to 3203. Tlieir claims for lodging and board are prescribed against by one year, 3499. INOFFICIOUS. What dispositions are called so, 3522, No. 21. INSANITY, V. interdiction, persons insane or interdicted. INDEX. 491 INSCRIPTION OR RECORDING. Of donations intcr-vivos, from 1541 to 1545. Of articles of partnersliips in commendam, 2816, 2818, 2819. Of privileges, from 3238 to 3243. Of mortgages, from 3314 to 3334. INSOLVENT, INSOLVENT CIRCUMSTANCES. What is meant by being in insolvent circumstances, 1980. What is the effect of that situation, 1979, and from 1981 to 1983. INSTITUTION OF HEIR, v. testamentary dispositions. INTERDICTION. In what case the persons insane may be interdicted, and who has a right to petition for such interdiction, from 382 to 385. IIow the act of madness, insanity, or fury, must be proved to pronounce the interdiction, and of the proceedings thereon, 286 : and from 388 to 390, 392, 406. IIow the judge may appoint an administrator pro tempore during the pen- denc}' of tiie suit for interdiction, 387. Every sentence of interdiction shall be published ; in what manner ; and of the effects of the interdiction, from 393 to 397. How the interdiction may be revoked, 407, 408. All persons who, owing to certain infirmities, are incapable of taking care of their persons and piopei't}^ may be interdicted, 409. . Interdiction does not take place on account of profligacy or prodigal- ity. 413. Of contracts made by persons interdicted, 1781, 1782. V. Persons interdicted. IN SOLIDO, V. oblifjations in solido. INTEREST Due on the balance of the tutor's account, 353. Interest of money is a civil fruit, and belongs to the usufructuary, 537, 540. Such interest is supposed to be obtained day by day, 540. Interest is of two kinds, and of the rules respecting both, from 1930 to 1937 and 1939. Interest upon interest cannot be recovered, 1934, 1936. A demand of interest against one of the debtors in solido, makes interest run witli respect to all, 2093. In order to make a real tender valid, it must be made not only for the whole of the sum demanded, but also for the interest due, 2164. The interest of the doM-ry begins from the day of the marriage, against those who have promised the same, 2326. From what day the interest of the dowry is due by the husband, 23.53. In what cases the buyer owes interest on the price of the sale until the pay- ment of the capital. 2531, 2532. IIow the purchaser may relieve liimselffrom the payment of interest, 2537. When the interest of the sums lent, and the arrears of constituted and life an- nuity, is due, 2771. It is lawful to stipulate interest for a loan either of money or of other movable things, 2894. Interest is cither legal or conventional, 2895. Of the rate of legal interest, ibid; and of conventional interest, ibid. The release of tlie principal without any reserve as to the interest, operates a release of such interest, 2896. INTERPRETATION OF AGREEMENTS OR CONTRACTS. Rules respecting that, from 1940 to 1956. Of legacies, rules respecting it, from 1705 to 1716. ^ INTERRUPTION OF PRESCRIPTION. Of the causes whicli interrupt prescription tending to the acquisition of pro- pert}-, from 3482 to 3486. 492 INDEX. INTERRUPTIOX OF rRESCRirTIOX— {Co«<«'7nretation of agreements, from 1940 to 1957. Of the obligation to perform, as incident to a contract, all that is required bv equity, usage, or law, from 1958 to 1962. ^*^Tcn°°^''^^'^^ ™^"' ^'^ avoided by persons not parties to them, from 1963 to 1989, Of the different kinds of obligations, 1990, 1991. Of strictly personal, heritable, and real obligations, from 1992 to 2014 Of simple and conditional obligations, from "2015 to 2037. Of the suspensive condition, 2038, 2039. Of the resolutory condition, from 2040 to 2042. V. Condition. ^V''"'lf,?.o''r^ unlimited obligations, as to the time of their performance, from 2043 to 2056. * ' V. Term. Of conjunctive and alternative obligations, from 2057 to207l ^'trioi's^ obligations, joint obligations, and obligations^ »i 'solido, from 2072 ^^2979 to"'>082'^'"''^ ^°^^'"'' ^^''^'"''^ obligations and joint obligations, from ^^.^^^^f.n"'^^ ''1"'^'' govern obligations between creditors in solido, from 2083 to 208o ; and Between debtors in solido, from 2086 to 2103. Of obligations divisible and indivisible, from 2104 to 2106. Of the eftocts of divisible obligations, 2107, 2108. Of the effects of indivisible oJsligations, from 2109 to 2112. Of obligations with penal clauses, from 2113 to 2125." Of the manner in which obligations may be extinguished, 2126. V. Compensation, confusion, loss, novation, nullity or rescission mvmcnt prescription, remissic'<\ ' f J » Of the manner in which obligations are proved V. Proof. OCCUPANCY. Defined, 3375. ^^8376 3377 ''"^ ^"^^^ '" '^^"'''' Property may be acquired by occupancy, ^''oT-o^'? property of wild beasts and fowls may be acquired in that way 33 i 8, 3379. What are the beasts which are considered as being wild or not, from 3378 to oo^2i. Of those who discover or find precious stones, or a thing which is abandoned by its master, or a treasure, 3383, 3384, 3386. Of those who find a movable thing lost by its master, 3385. One must not reckon, in the number of things abandoned,' those which have Dcen lost in a shipwreck, 3387. How the manner of acquiring property by capture is regulated, 3388. OFFICES OF MORTGAGES, v. mortgages. 506 INDEX. OLOGRAPHIC TESTAMENT, Must be drawn up in writing, 1568. In what form, and by whom, 1581, 1582. In what manner it is proved, 1648. It must be opened by the judge if it be sealed, how, 1648. ONEROUS CONTRACTS, Defined, 1767. OPENING OF A SUCCESSION. In Avhat manner successions are opened, from 928 to 943. OPENING OF A TESTAMENT. lu what manner testaments are opened, and when, from 1637 to 16S9, 1648 and 1649. v. testaments. OPPOSITION TO MARRIAGE, v. marriage. ORDINARY PARTNERSHIPS. What are the ordinary partnerships, 2797. v. partnerships. OUTRAGES. Cruel treatments and excesses are causes for a separation from bed and board, 138. OVERSEERS, Are privileged for their salaries upon tlie crops, 3184. Their actions for payment of their salaries are prescribed by three years, 3503. OWNER. The owner of the soil may make upon it all plantations, and erect all build- ings which he thinlis proper, under the exceptions established in the title of servitudes of land, 497. V. Constructions. OWNERSHIP, Defined, 480 ; who is said to be the owner of a tiling, 481. Ownership is divided into perfect and imperfect, 482. When the ownership is perfect, and when imperfect, ibid. Rules respecting both kinds of ownership, from 483 to 490. The right of ownership subsists independently of possession, 488. No one can be divested of his property unlefs for some purpose of pub- lic utility, and on consideration of an equitable and previous indem- nity, 489. The ownership of a thing carries with it the right to all that the thing pro- duces, and to all that becomes united to it, either naturally or artificially, 490. v. accession. PARAPHERNALIA. What is understood by paraphernalia or extra-dotal property of the wife, 2315, 2360. Of the power of the wife upon her paraphernalia, 2361. How the husband may have the administration of the paraphernalia of his wife, and when the fruits thereof belong to the community, from 2362 to 2365. How the wife, who Ims reserved to herself the administration of her parapher- nalia, ought to bear a proportion of the marriage charges, 2366. The wife niay alienate her paraphernal property with the authorization of her husband, 2367. Of the action of the wife against her husband for the restitution of her para- phernal property, and the fruits thereof, 2368. INDEX. 507 PAEISH JUDGES. Their actions for the payment of their fees and emoluments are proscribed by three _years, 8503. PARTICULAR LEGACIES, Defined, 1618. Of tho rig]it which the legatee derives from the legacy, and in what cases the delivery of tlie legacy must be demanded, from 1619 to 1625. From what day the interest or proceeds of the thing bequeathed shall accrue to tiie ben ^fit of the legatee, 1024. How the heiis are bound to deliver the legacy, 1626, 1631. Particular legacies must be discluirged in preference to all others, and how the legacies of a certain object must be first taken out, 1627, 1028. Tlie legacy must be delivered with every thing that appertains to it, 1029,' 1030. The legacy of a thing belonging to another person, is null, 1632. How tlie licir is bound to discharge the legacy of an indeterminate thing, 1033. A legacy made to a creditor shall not be deemed to be in compensation of tiie debt, nor a legacy made to a servant in .compensation of his wages, 1634. The legatee, by a particular title, is not liable to the debts of tho succession, excejit in case of reduction or mortgage, 1635. The legacy of a certain object is extinguished by tho loss of the object, how," 1636. V. Legacies. PARTICULAR PARTNERSHIPS, From 2806 to 2809. v. partnerships. PARTIES. Of the parties to a contract, I'J'/S. To all contracts there must be at least two parties, 1758. Those only are parties to a contract who have given their assent to it, either expressly or by implication, 1773. How contracts may be avoided by persons not parties to them, from 1963 to 1989. PARTITIONS. Of the partition of successions, from 1214 to 1304, and from 1420 to 1452. Of the nature of a partition, and of its several kinds, from 1214 to 1229. Every partition is eitlier definitive or provisional, 1218. Of definitive partitions, Uiid. Of provisional partitions, ibid. The action of partition cannot be prescribed against, how, from 1227 to 1220. Among what persons partitions can be sued for, from 1230 to 1244. In what innnner the judicial partition is made, from 1245 to 12C)8. When the property is indivisible by its nature, or cannot be conveniently di- vided, tlie sale of it is made at public auction, from 1201 to 1204. Any co-heir may become a puVchaser at such sale, up to the amount of the portion owing to him from the succession, 1205, 1206. How the notary is bound to proceed in the judicial partition, from 1269 to 1304. IIow the notary must begin bj- settling the accounts which each of tho heirs may owe to the succession, 1271, 1272, 1273. In what manner he must proceed in case collation is to be made, from 1274 to 1270. How t!:e notary shall afterwards proceed to the formation of the active mass of the succession, 1277, 1278. How ho must juoceed to the deductions to bo made from the mass, and what is understood by deduction, from 1279 to 1285. Of the turniation and composition of the lots, and how they are formed by ex- perts, from 1286 to 1289 508 INDEX. VAFJFITIOlsS— (Continued). If any contestation arise, the notary must refer the parties to the judge, 1290. No partition is made of the passive debts of tlie succession, 1293. Of the effect of partition, 1294, 1295. How the judicial partition must be homolos;ated by the judge, and how the judge must decide upon tlie opposition made to it, from 129fi to 1299. The rules established for the partition of successions are applicable to parti- tions between co-proprietors of the same thing, 1304. 1 Of the warranty in matters of partition, from 1420 to 1434. i Of the rescission of partitions, from 1435 to 1452. ,• How partitions may be rescinded on account of lesion, from 1436 to 1438. Suits for the rescission of partitions are prescribed by the lapse of ten years, 1451, 1452. The minor, who obtains relief against a partition, relieves those of full age, 1450. Of partitions made by parents among their children, from 1*717 to 1726. PARTNERS. Of the obligations of partners towards each other, from 2824 to 2842. Of the obligations of partners towards third persons, from 2843 to 2846. V. Partnerships. PARTNERSHIPS, Defined, 2772. Who may contract a partnership, 2773. General provisions, from 2773 to 2794. Of the several kinds of partnerships, from 2795 to 2799. For what object commercial partuershi2:)s are formed ; of their several kinds, 2796, 2798. Of their particular rules, 2823. Ordinary partnerships are all such as are not commercial; they are divided into iiniversal and particular partnerships, 2797. Of universal partnerships, their definition, 2800. Their rules, from 2801 to 2805. Of particular partnerships, their rules, from 2806 to 2809. Of partnerships hi cominendain, 2799, and from 2810 to 2822. How the articles of partnership in com.mendam must be recorded, 2816, 2818, 2819. Of the different manners in which partnerships end, from 2847 to 2861. V. Partners. PASSAGE {right of). Who may claim the right of passage, and by whom such passage must be furnished, and under what indemnity, from 695 to 699, 704. Of the servitude of passage in cities, 715, and in the country, 718. V. Eoad. PASSAGE MONEY. If a woman has a child during a voyage by sea, the price of her passage is not increased therebj', 2724. PASTURAGE. (Right of), is a rural servitude, 717, and in what it consists, 722. PATERNAL AUTHORITY. Of the effects of paternal authority, from 233 to 254. Bastards are not submitted to the paternal authority, 253, PATERNITY. What constitutes the presumption of paternity, 203. How that presumption ceases to have effect, from 206 to 208 and 210. INDEX. )09 PATERmTY— {Continued). Illegitimate children, who are free and white, may be allowed to prove their paternal descent ; but when they are of color, they are allowed to prove their descent from a father of color only, 226. In what ways the proof of natural paternal descent may be made in cases where sucli proof is allowed, from 227 to 228. PATRIMONY. V. Separation of patrimony. PAWN. Defined, .S102. What things may be pawned or given in pledge, 3121, 3122. Of tlie transfer and other requisites necessary to give a claim in pledge, 3123. What privilege the pawn confers to the creditor, and under what restrictions, from 3124 to 3129. Of the other riglits, which the creditor acquires on the thing pledged, 3130, 3131. The creditor cannot, in case of failure of payment, dispose of the pledge, but he may apply to the judge to order that the tiling shall remain to him in payment for its estimated value, or shall be sold at public auction, 3132. Of the rules relative to that contract, from 3133 to 3142. The creditor cannot acquit the pledge by prescription, 3142. PAYMENT, Is one of the wavs by which obligations may be extinguished, 2126. What is meant by pjiyment, 2127, 2128. Of payment or perf irTnance in general, from 2129 to 2154. Of paj-nient with subrogation, from 2155 to 2158. Of the imputation of payments, from 2158 to 2162. Of tender of payment and consignment, from 21G3 to 2165. What h.as been paid through error or mistake, may be reclaimed, from 2279 to 2292. PAYMENT OF DEBTS OF A SUCCESSION, v. Debts. PENAL CLAUSE, Of obligations with penal clauses, from 2113 to 2125. PERPETUAL RENTS AND ANNUITIES Are in the class of things movable, 466. V. Annuities, Jient. PERSONAL ACTION. Of the personal action which is exercised against the heir, 1370. PERSONAL OBLIGATIONS. When an obligation is personal, 1992, 1993, 1999. When it is jiresumed such, 1995, 1996. Of the effects of a purely personal obligation, with respect to the lieir, 1997, 1998. PERSON. The word person, used in the law, is applicable to men and women, or either, 3522, No. 25. PERSONS. Of the distinction of persons, from 24 to 41. Curators are appointed to persons incapable of adminisiering their persons and affairs, 32, 33, 409. Persons incapable of contracting, from 1785 to 1790. Interdicted or insane persons, 31, 33, 322, 1584, 1775, 1781, 1782. V. Interdiction. How far free colored persons may be competent witnesses in civil matters, 2261. Minors of both sexes are called persons of full age, when they have attained the age of one and twenty years, 41. 510 INDEX. PHYSICIANS. When pli3-sicians or surgeons cannot receive an}^ benefit fi'ora donations inter- vivos or mortis causa, made to them b}' sick persons, 1476. Of their privilege for their salaries for having attended the deceased in hia last sickncj^s, 3158, 3109. How this claim for salaries is prescribed by three years, 3503. PLEDGE. The contract of pledge defined, 3100. There are two kinds of pledge, the pawn, the antichresis, 3101. General provisions with resj^ect to the contract of pledge, from 3103 to 3120. V. Antichresis, pawn. PLOTS FOR BUILDINGS, Defined, 2727. Rules respecting them, from 2728 to 2748. POSSESSION, What is meant by possession, 3380. Natural and civil possession defined, from 3390 to 3394. What things are properly susceptible of being possessed, and by whom one may possess, 3395, 3396, 3408. How possession may be acquired, and by whom, from 3399 to 3404. How possession once acquired, is preserved by the mere intention of the pos- sessor, 3405. How possession may be lost, from 3410 to 3412. What rights are acquired by mere possession, 3413. Of the nature of the possession necessary to prescribe. V. Prescription. POSSESSOR. Of the possessor in good faith, and of the rights which are peculiar to him, 3414, 3416. Of the possessor in bad faith, 3415. Of the rights, which are common to all possessors in good or bad faith, from 3417 to 3419. POSSESSORY ACTIONS. Possessory actions are prescribed by one year, 3501, 3502 POSTHUMOUS CHILD. What is meant by posthumous child, 30. POTESTATIVE CONDITIONS. What conditions are so called, 2019, 2029. POWER OF ATTORNEY, v. mandate. PRECARIOUS POSSESSION. What is understood by a precarious possession, 3522, No. 27. PRECARIOUS POSSESSORS. From 3476 to 3479. PRECEPTORS. In what cases teachers and preceptors have the same privilege which is given to keepers of boarding-houses, 3179. How the actions of teachers and preceptors are prescribed, 3499, 3503. PREDIAL OR LANDED SERVITUDES, v. scrviticdcs. PRESCRIPTION, Defined, 3420. General provisions, from 3421 to 3434. Prescription, by which property is acquired, defined, 3421. Of the time necessary for prescription, from 3435 to 3441. Of the prescription of ten and twenty years, from 3442 to 8464 INDEX. 511 PRESCRTPTIOX— ( Continued). Of the prescnption of thirty years, from 3465 to 3471. Of pi'escriptiou of movables, from 3472 to 8475. Of the causes wliioh prevent sueli prescription, from 3476 to 3481. Of the causes wliicli interrui>t prescription, from 3482 to 3486. Of the causes which su^^pend tlie course of prescription, from 3487 to 3493. Of the prescrii)tion Avliieli operates a release from debt, from 3494 to 3498. Of the prescription of one J'ear, from 3499 to 3502. Of the |ireseription of three years, 3503, 3504. Of the presci'ipl ion of five years, from 3505 to 3507. Of the prescription often years, from 3508 to 3511. Of the prescription of thirty years, 3512, 3513. Of the rules relative to the prescription operating a discharge from debts, from 3514 to 3521. PRESERVATION OF A THING. The expenses made for the preservation of a thing, are privileged, 3184, and from 3191 to 3193. PRESUMPTIONS. Defined, 2263. Of presumptions established by law, from 2264 to 2266. Of presumptions not established by law, 2267. PRICE. Of the action in diminution of the price of a thing sold, 2468, 2470, 2471, 2475, and from 2519 to 2522. In what eases a supplement of the price may be required or not, from 2469 to 2475. PRIMOGENITURE. In matter of legal successions, no difference of sex, and no right of primogen- itui-e are known, 889- PRINCIPAL CONTRACTS. Defined, 1764. PRINCIPAL AND AGENT. Of the obligation of the principal, who acts by his attorney in fact, from 2990 to 2995. V. Mandate. PRIVATE V/RITINGS. How domestic books and papers may be pi'oof against him who lias written them, 2245. PROCEEDINGS. Of the proceedings of separation from bed and board, from 140 to 143. Of the provisional proceedings to which such a separation ma}' give occasion, from 144 to 148. Of objections to the action of separation from bed and board, 149, 150. PRIVILEGES. ' General provisions thereon, from 3149 to 3152. Their several kinds, from 3153 to 3156. Privileges on movables, 3157. General |irivilege3 on movables, 3158. Funeral charges, from 3159 to 3161. Law charges, from 3162 to 316.5. Expenses during the last sickness, from 3166 to 3171. Wages of servants, from 3172 to 3174. Supplies of provisions, from 3175 to 3180. Privilege of clerks, and privilege of wives for their dowry, B181, 3182. Privileges on particular movables, 3183, 3184. Privilege of the lessor, 3185, 3186. Privilege of the creditor on the thing pledged, 3187, 3188. 512 INDEX. « rraVILEGES— {Co«-opci-tj contained in the marriage con- Effects of that clause, from 2395 to 2398 Of the separation of property prayed for by the wife during, marrinire 2391, Of (he causes for winch such separation nlay be prayed fo" and of the nro- ceedings thereon, from 2399 to 2403. ^ ^ ^^tTuiL "'^ ''^l""'''^''''' ''^ property, from 2404 to 2406 ; and from 2410 ''^i^"iil;^;.:rty;^;;;?:"i:;;:'' ^'^^ •'"^^^'^^ «^ -^^ -^'^ -^p-^ ^o separa. "o7tW .tf' r ^°'7\ *" T-l'^^''^'' ^'^ ^^'' household expenses, and to those propcrt3^ 270;)?'' '' "'"' ''' ^'""'"^ ''^'"'"'''^ lier separation ol SEPARATION OF PATRIMONY. '^''mtrimonv of^lT'^ .l''''^ '^''^^VV'^^^* ^^ ''^^^ *'»« separation of the MOO doT if' ff."'' deceased from that of the lieir. 1370, 1397. monW397.' ^''^'' '''"'^ ^' '"^^'^ '^'' separation of patri^ What are the object and eflfects of that separation, 1398, 1399 1402 1403. ^''''''"' ^'''^'' *''' '''^^'"'■' '''•'y ^"""°<^ «"«^ separation. ^Mw to'TliT' '""^ ''''^'"" ""^""^ ^''"' '"'■'' ^ ^'™'"^ "^"'^ ^« "^''^^^^' f"-"™ '^'tiri^l\?of1l!^'-''V^'^V''^'".''\' "^'''*^^ demanding the separation of tiie estate ot the hoir from tluxt of the succession, 1412 SEQUESTRATION, Is either conventional or ordered by the judge 2941 Conventional sequestration defined, 2942. ' Rules relative the ♦^o, from 2942 to 294?'. Of the duties of the ocquestrator, 294G, 2947. Judicial sequestration or deposit defined 2948 What obligations are created by such sequestration, 2949; and to whom the judicial sequestration is confided, 2950. lu wnom me SERVANTS. Of master and servant, from 155 to 190. There arc two cl.asses of servants, the free servants and the slaves 155. Of free servants, from 15G to 171. How man}^ kiucls there are, 157. How thp'"may engage thcn,selves or be engaged, and of the form and effect of such contract, from 158 to 104. In what cases such contract may be rescinded or dissolved, 105 166 Ot he power of the master upon his indented servant or apprentice,' 167 Ot the hiring of- servants and workmen, from 2717 to '>7'>1 Sl'srsmTsn'!''"''"" ^"'" ^'''''" ''"^'''' "'"^ ''^ ^''' '""^'"'^ "^ ^^'""^ privilege. Who are those who iire considered as servants or domestics, 3172. iheir acjiions for their wages are prescribed by one year 3499 V. Apprcnticr, master, slave j j t SERVITUDES OF LAND. Gencrnl principles, from 642 to 654. ^'^GSo'to'esg' '''"'"'' '"■'^""°'**' ^'■*"" ^^° "'^*»'''^1 situation of the place, from Of servitudes imposed by law, from 660 to 670. Of walls, fences, and ditches in common, from 071 to 687 " from b^88^?o" e'gL '^" '"^"'•'"'^'^'"'•3- ^'"'•'^^ required for erecting buildings, Of sights on (he property of a neighbour. 692, 693. 520 INDEX. SERA^TUDES OF LA'SD—iCoiiimucd). Of the innincr of carrying off rain from the roof, 694. Of the riglit of passage and of way, from 695 to 704. Of conventional or voluntary servitudes, from 705 to 767. Of the several kinds of conventional or voluntary servitudes, from 706 to 724. How servitudes are established, from 725 to 754. How servitudes are acquired, from 755 to 7g7. Of the rights of the j^roprietor of the estate to which tlw servitude is due, from 768 to 778. How servitudes are extinguished, from 779 to 818. Continuous and apparent servitudes are acquired by prescription, how 3470. SEVERAL OBLIGATIONS. Where there are more than one obligor or obligee, the obligation may be several or joint, or in solido, 2072. How several obligations are produced, 2073, 2074. SEX. What differences the laws have established between men and women, on account of tlie difference of sexes, 24, 25. In matter of legal successions, no difference of sex is known, 889. SHERIFFS. Their actions for the payment of their fees are prescribed by three years, 3503. SHIP MASTERS. Of their privilege for their wages or salaries on the last voyage, 2726, 3204. Of the privilege of tlie sliip master or captain for his freiglit, 3213. Their actions lor their freight and salaries are prescribed by one year, 3499. SHIPS. Of the privilege which may exist on ships and merchandise, from 3204 to 3215. Ships and vessels are susceptible of being mortgaged, 3256. Of the privilege for the supply of wood, and other things necessary for the construction, equipment, and provisioning of ships and other ves- sels, 3204. How the action for such supjily is prescribed by one year, 3499. SIGNATURE. The person against whom an act under private signature is produced, is obliged formally to avoAV or disavow his signature, 2240. If the party disavow his signature, it must be proved by witnesses or comparison, 2240. Sales or exchanges of real property and slaves, by instrument made under private signature, are valid against bona fide purchasers and creditors, only from the day they are registered, where, 2242. SIGNIFICATION. Of the signification of sundry terms of law employed in the code, 3522, from No. 1 to 32. SIGHTS. Of sights on the property of a neighbour, 692, 693. V. View. SIMPLE OBLIGATIONS. Of simple and conditional obligations, from 2015 to 2037. A simple obligation defined, 2015. SLAVES. A slave is one who is in the power of a master to whom he belongs, 85. The rules for the police, and conduct to be observed with respect to slaves, are fixed by special laws, 172. INDEX. 52 SLAVES— ( Contimifid). The slave is entirely subjoet to the Mill of his master, how, 173; he is iu' capable of making any kind of contract except for his freedom, 1774 1775 1783, 1785. AU that a slave possesses belongs to his master, except his ;>(?c«/iMMi, and what is meant hy pecuJiam, 175. He cannot transmit any thing by succession, 17G, 945. He is incapable of exercising any public office or private trust ; he cannot be a witness, and cannot be a party in any civil action, except when he has to claim or prove his freedom, 176, 177, 322, 1584, 2260. When slaves are prosecuted in the name of the State for offences they have committed, notice thereof must be given to their masters, 178. How masters are bound by, or answerable for the acts of their slaves from 179 to 181, 2300. Slaves cannot marry without the consent of their masters, 182. The children born of a mother, then in a state of slaver^', belong to the mas- ter of their mother, 183, 492. How slaves may be enfranchised, from 184 to 192. V. Unfranchisfmcnt. Of the slave who has acquired the right of being free at a future time, or of slaves for years, from 193 to 196. Slaves are immovable by the disposition of the law, 401. Children of slaves are natural fruits, but the usufructuary has only the en- joyment of tlieir labor or services, 537, 539. The usufructuary is not bound to return other slaves in the stead of such as have died, 688. In what manner he who has the use of one or more slaves has the right of enjojMng their services, 631. Slaves are incapable of inheriting, 045; they cannot receive by donations inter vivos or causa mortis, unless they have been previousl}^ enfranchised, or are enfranchised by the act of donati. Testa.nents (the mystic only excepted) cannot be witnessed by those who are instituted heirs or named legatees therein, 1585, 1586. What IS understood by the res^idence of the witnesses in the place where the testament is executed, 1587. The formalities to which testaments are subject must be strictly ob- served, 1588. J " How testaments made in foreign countries, or in the other States of the Union may ta^e efteet here, 1589. ' Of particular rules on the form of testaments made by persons employed in armies on the held, or m a militaiy expedition, from 1590 to 1593 Ot testaments made at sea, from 159-1 to 1597. Of testamentary dispositions, 1598. Of universal legacies, from 1599 to 1603. Of legacies under an universal title, from 160-t to 1608. Of disinheiison, from 1609 to 1617. Of particular legacies, from 1618 to 1630. Of the opening and proof of testaments, from 1637 to 1650, 1681 168'^ Ot testamentary executors, from 1651 to 1680. ' Of the revocation of testaments and of their caducity, from 1683 to 1704 General rules for the interpretation of legacies, from" 1705 to 1716 V. Disinherison, legacies, mystic, nuncupative and olographic testaments tcs- tametitary executors. ' TESTAMENTARY DISPOSITIONS, 1598. V. Legacies. TESTAMENTARY EXECUTORS. The testator may name one or more testamentary executors, for what pur- pose, 1651. " The testator may give his testamentary executor the seizin of the whole or a r?.Q 1^!.'^ succession, in what manner, and how long such seizin lasts, 1662 Who cannot be testamentary executors, 1656, 1658. How a married woman may be a testamentary executor 1657 Of the duties of the testamentary executor, and of the account he is bound to render of his administration, from 1659 to 1663, and from 1665 Tlie testamentary executor is not bound to accent the executorsliin • nor to give security when he does accept it, 1670. i . i." In ^ what case the judge may appoint a testamentary executor, and how, Tlic powers of the testamentary executor do not go to his heirs, 1073 When there are several testamentary executors who have accepted, in what manner they may act, and how they are bound in solido, 1074 Of the expenses made by the executor which must be defrayed out of the suc- cession, and of the commission allowed to him, from 1075 to 1080 526 INDEX. TESTIMONIAL OR ORAL PROOF. The sale or transfer of immovable property or slaves, cannot oe proved by oral testimoii}-, except in certain cases, 2255. Ifo parol evidence can be admitted against or beyond what is contained in the ads, 2256. How agreements relative to personal property may be proved by oral evi- dence, 2257. Of the oral evidence which is admitted in cases where a wi'itten instrument has been lost or destro^-ed, 2258, 2259. "Who are the competent witnesses who may be admitted in civil matters, from 2260 to 2262. V. Witness. THING ADJUDGED. A legal presumption results from the authority of the thing adjudged, 2264. THINGS. Of the division of things, from 439 to 452. Of things which are for the common use of every hodj, from 441 to 443, Of public things, from 444 to 446. Of things holy, sacred, and religious, 447. Of things which belong in common to the inhabitants of cities or other places, 449. Of private estates, 450. Of corporeal and incorporeal things, 451. Of immovables, from 453 to 463. V. Immovables. Of movables, from 464 to 472. V. Movables. Of things on estntes considered in their relation to those who possess them, from 473 to 479. THIRD PERSONS. What is meant by third persons, 3522, No. 32. THIRD POSSESSORS. Of tlie effect of mortgages against third possessors, and of the hypothecary action, from 3362 to 3373. THREATS, V. violence. TITLE, v. just title. TRADITION, V. delivery. TRANSACTION OR COMPROMISE, Defined, and its form, 3038. Who is and Avho is not capable of making a compromise, 3039. What differences are deemed to be regulated by the compromise, 8040, 3041. Of the penaltj' which may be added to the compromise in order to enforce its execution, 3042. Of the effect of a compromise, from 3043 to 3045. A compromise cannot be rescinded on account of error in law, or of lesion, 3045. For what other causes compromises may be annulled or not, from 3046 to 3050. TRANSFER. V. Assignment. TREASURE. The usufructuary has no right to the treasure which may be discovered in the land of which he has the usufruct, unless he himself has discovered it, 546. Of the right of him who finds a treasure in his own land, or on land belong- ing to nobody, or to other persons, 3386. INDEX. 527 TREBELLIANIC TORTION. The instituted heir has no longer any right to the trebellianic portion, 1507. TREES. Standing trees, and their fruits not gathered, are considered as immovable ; when cut down the}' are movable, 456. • The usufructuary may cut trees on the land of which he has the usufruct, lor the amelioration and cultivation of the laud, 644. No proprietor in the cities can plant trees on the boundary line which sepa- rates his estate from that of his neighbor, 687. If the neighbor suffers any damage from them, he may oblige the owner to have them torn up, or the branches or roots of them cut off, how, 087. TUTOR. Of the duties of the tutor by nature, 209. The tutor by will is not compelled to accept the tutorship, 277. Of the duties of the dative tutor, 293. Of liis powers and functions, from 297 to 299. Who are the persons incapable of being tutors, 322. Who are the (lersons who arc excluded, or who may be removed from tutor- ship, from 323 to 320. Of the administration of tutors in general, fi'om 327 to 356. A tutor must take care of the person of the minor, and represents him in all civil acts, 327. He must administer the minor's estate as a prudent administrator, 327. He cannot purchase, lease, or hire the property of the minor, 327. Of the oath he must t.ake, 328. • Of tlic inventorv wliich the tutor must make, and of the surety he is bo\md to give, from 329 to 332. How and when the tutor must cause the movable effects of the minor to bo sold, 333. - In what case the immovables and slaves of the minor may be sold, and with what formalities, from 334 to 339. How the tutor may let out the property of the minor, and how he must in- vest the revenues which exceed the expenses of his ward, 340, 341. How the expenses for the support and education of the minor ought to be re- gulated, 343. Of the commission allowed to the tutor, 343. How the tutor administers the affairs of his ward, 344. How he may accept or reject the successions which have fallen to hrs ward, from 345 to 347. How he may borrow money, purchase immovables and slaves, or compromise for the minor, 348. How he may accept bargains and donations made to his ward, 349. The tutor cannot in any case dispose gratuitously of the movable or im- movable property of the minor or any part thereof, 349. Of the account he is bound to render, from 350 to 353. How the property of the tutor is tacitly mortgaged in favor of the minor and from what time, 354. Every agreement made between the tutor and the minor who has arrived at the age of majorit\% is null, unless the same was entered into after the rendering of a full account of the tutor's administration, 355. Tlic action of the minor against his tutor I'cspecting the acts of tutorship, is prescribed by four years, 356. V. Tutorship. TUTORSHIP. General dispositions thereon, from 263 to 206. There arc four sorts of tutorships, 204. Of tutorship by nature, from 207 to 274. Of tutorship by will, from 275 to 280. Of tutorship by the effect of tlie law, from 281 to 287. Of dative tutorship, from 288 to 289. 528 INDEX. TVTOR?>lIir—{Conti7iucd). Of the under tutor, from 300 to 304, V. Under tutor. Of family meetings, from 305 to 311. V. Family inectings. Of the causts which dispense or excuse from the tutorship, from 312 to 821. V. Causes. Of the incapacity for, the exclusion from, and deprivation of tutorship, from 322 to 32(3. V. Removal. Of the administration of the tutor, from 32'7 to 356. V. Tutor. V. Curator of minors. u. UMPIRE. Of the umpire who is appointed in case the arbitrators cannot agree, from 3083 to 3086. UNDERTAKER. Of the right of the iindertaker or woi'kman who has made, at tiie instance of the usufructuary, any building or work or improvement on the property, and who is unpaid at the expiration of the usufruct, from 591 to 51)3. An undertaker may agree either to furnish his work and industry alone, or to furnish also the materials, 2728. If the work be destroyed previous to its being delivered to the owner, on whom falls the loss, from 2730 to 2732. Of the responsibility of the undertaker or workman, if the woi-k fall to ruin, either in part or in whole, ou account of the badness of the workmanship, and how long it lasts, 2733. ^ The undertaker or other workman, who lias agreed to make a building by the job, according to a plot, cannot claim an increase of the price on the plea of the original plot having been changed and extended, except in cer tain cases, 2734, 2735. How the jn-oprietor has a right to cancel at pleasure the bargain he has made, even when the work has already been commenced, 2736. Contracts for hiring out work are cancelled by the death of the undertaker or workman, unless the proprietor consent that the work be con tinned, 2737. Obligations of the proprietor in either case, 2737. The undertaker is responsible for the deeds of the persons employed by him, 2739. Of the liability of the undertaker in case he fails to do the work he has con- tracted for, or does not execute it in the manner and at the time agreed on, 2740. Of the privilege of the undertaker for the payment of his labor, 2743. Of the recording of agreements or undertakings for work when they exceed five hundred dollars, 2746. V. Plots for buildings, workmen. UNDER TENANT OR UNDER LESSEE. The privilege of the lessor affects not only the movables of the lessee, but those of the under lessee and other persons, when their goods are contained ia the house or store, 2677. UNDER TUTOR. In every tutorship there must be an under tutor appointed by the judge, 300. Of the duties and powers of the under tutor, from 301 to 303 ; and when they are at an end, 304. UNILATERAL CONTRACT, Defined, 1758. INDEX. 529 UNIVERSAL LEGACIES OR LEGATEES, Defined, 1599. In ■what cases the universal legatee is bound to demand the de.ivery of the estate beqxieatiied to liim, from IGOO to 1602. IIow tlie universal legatee, who concurs with a forced heir, must contribute to the payment of the debts of the succession, 1603. Y. Legatees. UNIVERSAL PARTNERSHIPS. Ordinary partnerships are divided into universal and particular partner- ships,* 27 97. Universal partnership defined, 2800. Its particular rules, from 2801 to 2805. UNLIMITED OBLIGATIONS. Of limited and unlimited obligations as to the time of their performance, from 2043 to 2056. UNWORTIIINESS, Of lieirs, of the heirs who are called unwortli}', 958. Of tlie difference between being unworthy or incapable of inheriting, 959. Who are the persons unworthy of inlieriting, 960, 962. The unworthincss is never incurred by the act itself, it must be pronounced by the court in a suit instituted for that purpose, 961. Effects of the judgment by which the heir is declared unworthy of inheriting, from 963 to 967. Who may sue in order to cause the heir to be declared unworthy of inherit- ing, 968. Of the reconciliation wbich is a bar to that action, 969. URBAN SERVITUDES, Defined, 706. How many kinds there are of them, 707. USAGE. Of the obligation to perform as incidents to a contract, all that is required by equity, usage, and law, from 1958 to 2962. When the intent of the parties is evident, neither equitj' nor usage can be re- sorted to, 1958. What is understood by the word usage in such a case, 1901. USE. Right of use defined, 621. The right of use and habitation is established and extinguished in the same manner as the usufruct, 623, 626, 627, 630. Of the rights of the person liaving the use, 624, 625, 629; and from 631 to 63.5. What distinguishes the usufruct of a property from the use of it, 628. Of the duties of him who has the use, 640, C41. USUFRUCT, Defined. 525. Tiierc are two kinds of usufruct, 526 to 528. By whom, to whom, and liow usufruct may be established, from 530 to 532, 534, 535. Upon what things usufruct may be established, 533. Of the rights of the usufructuary, from 536 to 549 ; and of his obligations from 550 to 593. Of the obligations of the owner, from 594 to 600. How usufruct expires, from 601 to 620. USUFRUCTUARY. The father and mother who have, during marriage, tlie enjoyment of the estate of their children, are liable to the same obligations to which the usufructuaries are subjected, 240. Of the right of tlie usufructuary-, from 536 to 549 34 530 INDEX. \JSUFRUCTUA.'RY—{Co7itimied). All kinds of fruits natural, cultivated, or produced during the existence of the usufruct, belong to the usufructuary, 536, 540. What is understood by natural, ciiltivated, and civil fruits, 537, 538. The children of slaves subject to usufruct, who are born during its duration, belong to the owner, the usufructuary has only the enjoyment of their la- bor and services, 539. If the usufn;ct includes things which cannot be used without being expended or consumed, the usufruetuarj' may dis])Ose of them ; under what obliga- tions, 542. What is the right of the usufructuarj-, if the iisufruct comprehends things which are gradually impaired by wear and decay, 543. The usufructuary has a right to draw all the profits which are usually pro- duced by the thing subject to the usxifruct ; in what manner, 544. He has the right to the enjoyment and proceeds of mines and quarries, as well as of the increase broui^ht by alluvion, but not to the islands formed in a stream opposite to sucli land, 545, 546. The usufructuary has no right on the treasure which may be discovered in the land of which he has the usufruct, unless he himself has discovered it, 546. The \iDufructuary enjoys the right of servitude, waj's or others due to the in- heritance of which he has the usufruct, 547. He may lease to another, or even sell or give away his right; effects of such acts, 548. What actions the usufructuary may exercise, 549. Of the obligations of the usufructuarj', from 550 to 593. Of the inveniA. 'y he must take, and of the security he is bound to give, and how he may give a mortgage in lieu of such security, from 550 to 555. If the usufructuary does not give security, what is to be done; and of the effect of not giving securitj^ from 556 to 557, 559. Of the obligation of the usufructuary, and of his responsibility, 558, 560, and from 562 to 564. The usufructuary may make necessary and useful improvements and repairs of the thing, but he cannot change its condition, 561. Wliat repairs the usufructuary is bound to moke, from 565 to 5*71. Of the other obligations of the usufructuary, from 572 to 579 ; and from 582 to 688. How the usufructuary under an universal title is bound to contribute to the payment of the debts of the testator, 680, 581. At the expiration of the iisufruct, the usufructuary has no right to claim any compensation for the improvements he has made, but he must abandon them to the owner, except certain articles which he may take away, 589, 590. Of the action of the undertaker who made, at the instance of the usufruc- tuary, any building or other work on the property, and who is unpaid at the expiration of the usufruct, from 591 to 593. V. ilsufruct. UTENSILS. The utensils necessary for working cotton and other manufactures, are im- movable, 459. V. Implements of husbandry. V. VACANT ESTATES. Of the administration of vacant estates, and estates of which the heirs are absent, from 1068 to 1213. Of the administration of vacant and of intestate successions, from 1088 to 1213. What is understood by a vacant estate, 1083. What is understood by a succession ab intestato, 1089. INDEX. 531 VACANT ESTATES— (Continued). ?/ ,y'Y'™/-?^'''i"t a»'^ intestate successions are managecl, 1090, 1091 It all the heirs are absent and minors, there is no occasion for the apnoint nient of a curator to the absent heirs, whj^ 1092. appomt Of the curators to vacant successions and to absent heirs. V. (Jurators. VENDOR, V. sale, sdla: VICES, V. redhibition, redhibitory vices. VIEW. Tlie right of view is one of tlie principal kinds of urban servitudes, 707 What IS understood by view, 711. ' Servitudes of view are of two kinds, 712. VIOLENCE. Violence and threats are causes which invalidate a contract, 1813. Ut the defect of consent arising from violence or threats, from 1844 to 1853 ""utriirjsirt-o^tv'^^^""^^ ^^ ^^^^^^^ — '-^ '^ '^^'^^^ ^ -- ^Ts''?,!^'r''''*'°' "PPli'^-'^We to error, violence, and fraud in contracts, VOYAGE. AVhat is understood by tlie voyage of a ship or vessel, 3212. w. WAGES. The wages of servants are privileged, how, 3158, 3173 3174 Of the privilege of the master and crew of a ship or vessel, 3204. In what order the wages of servants and seamen are paid, 3221 3499!'3500 ' ''''''^'' ""^ ''"''''"^' """'^ '*'''°'''' ^''^ prescribed by one year, WALLS IN COMMON. Of the walls in common, rules relative thereto, from 671 to 681. WARRANTY. Of the warranty in matters of partition, from 1420 to 1434 Ot the warranty in case of eviction of a thing sold, from 2476 to 2495 V. HjViction. Of the warranty in case of redhibitory vices. V. Redhibition, redhibitory vices. WASTE. ^ fructreil" '°"'°''""^ ^^ *''« usufructuary on the thing subject to the usu- WATER. Of the right of the owner whose estate borders on running water, or throuch •whose estate water runs, 657. ^ ""i-ti, ui uirougn WATERING. The riglit of watering is a sort of rural servitudcL 717 In what it consists, 721, WEARING APPAREL, v. linen and clothes. WELL. When a person wishes to dig a well, at what distance from the wall held in common he must do it, and in what manner, 688, 691. 532 INDEX. WIDOW, V. ir«/<-. WIFE. Of liusliaml and wife, v. husband and wife. Of the duties of the wife, 122. How she must be nuthorized by her husband, or in cnse of liis refusal or absence, by the judge, from 123 to 131, 1467, 1779, 1<'80, 2338, 3339. The wife may make her testament without the authority of her hus- band, 132. At the expiration of wlmt time the wife may be at liberty to contract another marriage, 134. For what causes the wife may claim her separation from bed and board, from 137 to 139. V. Separation from led and board. Of the rights of the wife with respect to the tutorship of her children. V. Mother. Of the separate property of the wife, 2315. In what cases the dotal effects may be alienated by the wife or with her con- sent, from 2338 to 2;;40. Of the rights of the wife at the time of dissolution of the marriage with respect to dowry, from 2346 to 2351. Of the mortgage and privilege of the wife for her dowry, 2355, 2366, 3158, 3182, 3221. Of the rights of the wife upon her paraphernalia or extra-dotal property, 2361, 2364, 2365, 2367, 2368. Tlie wife or her heirs may exonerate themselves from the debts of the community, by renouncing such community, from 2379 to 2384, 2388, 2392. How the wife may lose the riglit of renouncing, 2381, 2386, 2387, 2389. The creditors of tlie wife may attack the renunciation which she or her heirs have made with a view to defraud them, 2390. If the dowry be exposed to be lost, the wife may sue for a separatibn of gooda from her husband, and in wiiat manner, 2345 ; and from 2399 to 2412. WILD BEASTS AND BIRDS. What beasts are considered as wild, and in what manner their property is acquired, 3378, 3380. WITNESSES. Who may be a witness to a testament, from 1584 to 1585, 1641. Who is a competent witness in civil matters, 2260, 2262. WOMEN. Of the essential differences which the law has established between men and women, 25. Woman cannot be appointed to any public office, nor perform any civil func- tions, 25. Women, except the mother and grandmother, cannot bo appointed tu- tors, 322. Women cannot be witnesses to a testament, 1684. WORKMEN. What action the workmen Avho have boon cnijiloycd in the construction of a building or other works undertaken by the job, may have against the pro- prietor of the house on which they have worked, 2741. The workmen and persons furnishing materials who have contracted with the undertaker, have no action against the owner, but they may cause the moneys due to the undertaker to be seized, 2744. Pa^'ments made by tiio proprietor to the undertaker by anticipation, are con- sidered witii regard to workmen, and to those who have f-.irnished materials, as not made, 2745. Workmen employed in the construction or repair of ships and vessels, enjoy a privilege for the price of their labor, 2478. The actions of workmen for what is due to them, are prescribed by one year, 3499, v. undertaker. INDEX. 533 WORKS. Agreements or undertakings for work exceeding five hundred dollars, must be^i-educed to writing, and registered with the recorder of mortgages, For the undertakings not aniounting to five hundred dollars, their recordintr 19 dispensed with but their privilege i.s prescribed by six months, 2747. ^Vorkmen employed in the construction or repair of ships and boats are also dispensed with that, formahty, whatever may be the amount of their in- terest, but their privilege is at an end if thev suffer the ship to depart without exercising their claim, 2748. ^ "'-P»iw V. iVew works, constructions. Ji Q)cn g- •«.t'^ 4 1 i' 4