The Mexican Gulf Railway Company v. Viavant, Administrator. the instalments called in; or to require absolutely the execution of the obligation contracted by the stockholder, of paying the whole amount of his shares. Art. 2120 of the Civil Code, which supports this position, provides, that "the creditor, instead of exacting the penalty stipulated from the debtor who is in default, may sue for the execution of the principal obligation:" and Pothier, (Obligations, No. 342,) says: "Quoiqu'il y ait eu ouver ture à l'obligation pénale par la demeure, en laquelle a été le débiteur d'exécuter l'obligation principale, le créancier peut, au lieu de demander la peine stipulée, poursuivre l'exécution de l'obligation principale." See also Toullier, Vol. 6, No. 465,-and 21 Wendell, 273. It is clear, therefore, that the plaintiffs, who are not shown to have ever done any act evincing an intention on their part to avail themselves of the forfeiture allowed by the charter, and whose resolution to exercise the faculty of declaring such forfeiture, if ever taken, does not appear by the record, and never was notified to the stockholders, were always at liberty to proceed against the deceased in his lifetime, to compel him to execute his principal obligation, and to sue him for the amount of his subscription. We conclude that the plaintiffs are entitled to recover the amount of the twenty shares subscribed for by the deceased. With regard to the objection urged by the defendant's counsel, that no books were ever opened according to the charter, and that, if opened, they never were exhibited or shown to the deceased, who subscribed for his shares upon a list, or loose sheet of paper, presented to him by three persons who called upon him for that purpose, we think it is untenable. The evidence shows, that the deceased knew the nature and object of the obligation which he was contracting; that he subscribed with his eyes open, and for the very object contemplated and provided for by the charter; that although he refused subsequently to pay the amount of his subscription, or to give his notes with interest, he was willing to give his notes without interest for the whole amount of his stock; and we think it does not lie in the mouth of the administrator of his estate, to dispute the validity of an obligation contracted in good faith by the deceased. A very similar question was lately decided by us in the Western District, in the case of the Red The State v. Phelps. River Rail Road Company v. Young, in which we held, in substance, that a stockholder cannot take advantage of the informalities existing in the manner in which his subscription was obtained, unless there was fraud or error, and that he is bound to pay the amount of his subscription, though books were not regularly opened according to the charter of incorporation. 6 Robinson, 39. Judgment affirmed. THE STATE U. ABNER PHELPS, Clerk of the City Court of Lafayette. Under the 18th section of the act of 28 March, 1813, a Clerk may require of an appellant security for the costs of making a transcript of the record; and, if not furnish ed, he may refuse to prepare it. The surety given in the appeal bond is not enough. The bond is conditional, and should the appellant succeed, the surety would be discharged. The Clerk has a right to require that the security be absolute, and that the solvency of the surety shall appear to his reasonable satisfaction. But he exercises his judgment at his peril. RULE to show cause why a mandamus should not be issued to Phelps, Clerk of the City Court of Lafayette. Wills, for the application. Phelps, pro se. MARTIN, J. A rule was issued against the defendant, Clerk of the City Court of Lafayette, to show cause why he should not be ordered to make out the record in the case Joel Thompson vs. William Ayres, and deliver the same to the applicant, the appellant in that case. The Clerk showed for cause, that the applicant is a non-resident of the State; that he has no apparent means of discharging debts; that he had been cast in the suit; and was informed that the respondent was authorized by law to, and did require security for the costs of making the transcript, under an act of the Legislature; Bullard & Curry's Digest, 444, sect. 18. That it is true the applicant had given an appeal bond, but that the surety therein is notoriously insolvent. The surety not Baldwin v. Bennett and others. having been given, the respondent did not think himself bound to make the transcript. It has been contended, that an appeal bond having been given, the Clerk had therein sufficient security. It is clear, that this bond did not suffice; for the appellant, the principal in the bond, might have succeeded in the appeal, and the surety would thereby have been discharged, the bond being conditional. The Clerk has a right to require that the security be absolute, and the solvency of the surety appear to his reasonable satisfaction. He exercises his judgment thereon at his peril. Nothing shows that he had the opportunity to exercise his judgment on the solvency of the surety on the appeal bond. We cannot, therefore, be precluded by that document. Rule discharged. EBEN FRANKLIN BALDWIN v. JOSEPH BENNETT and others, Owners of the Steamer John Jay. The provision of the 17th sect. of the act of 10 February, 1841, which declares that the cases then pending before the District Court of the First District, and the Parish and Commercial Courts of New Orleans, "shall be stricken from the jury docket, unless the compensation fixed by that act to be allowed to jurors, be advanced by the party demanding a trial by jury," is not unconstitutional. Per Curiam. Under the twentieth section of the sixth article of the State Constitution no acquired rights, or existing contracts can be affected by subsequent legislation; but it is otherwise as to remedies and forms of proceeding. Whatever relates to the manner of conducting and trying a suit, (litis ordinatio,) is always within the control of the Legislature, which can, at any time, make any change, or modification it may think conducive to the public good and the proper administration of justice. APPEAL from the Parish Court of New Orleans, Maurian, J. Van Matre, for the appellants. MORPHY, J.* This suit is brought to recover the sum of four This opinion was delivered in June, 1843. So much of it as was overruled by the subsequent opinion on the re-hearing, is omitted. 6r 3091 51 623 6r 309 52 856 Baldwin v. Bennett and others. hundred dollars, alleged to be due to the petitioner, for his services as pilot on board the steamer John Jay during two months, at the rate of $200 per month, commencing on the 16th of November, 1838. The defence is, that on or about the time mentioned in the petition, the plaintiff engaged and agreed to serve as a pilot on board of the John Jay in the Arkansas trade, and to continue thereon from that time, until the expiration of the steamboat season on the Arkansas river, which usually terminates on or about the 1st of July of each year; that on the 10th of January, 1839, the boat left this city, with a full cargo of freight and a lot of passengers, for Fort Smith, on the Arkansas river, and the intermediate landings; that on or about the 16th of January, at the mouth of White river, and when the voyage had but fairly commenced, and long before the termination of the season, the plaintiff, without any just cause therefor, and without any previous intimation of his intention so to do, deserted and abandoned the John Jay, contrary to the will of the captain thereof, and took a birth as pilot on board the steamboat Burlington, engaged in the same trade; that as no pilot could be had at the mouth of White river to supply the place of the plaintiff, the captain was compelled to run the boat to Fort Smith, and return to New Orleans with but one pilot on board, lying by a part of every night, and sustaining damage by the wrongful conduct and breach of contract of the plaintiff, in the sum of $500, which is pleaded in reconvention. There was a judgment below for three hundred and seventy-five dollars in favor of the plaintiff. The defendants have appealed. Our attention has been called to a bill of exceptions taken by the defendants, to the opinion of the inferior Judge refusing to reinstate this case on the jury docket, from which it had been stricken, in obedience to the 17th section of the act approved the 10th February, 1841, entitled "An act to create two additional Sheriffs for the parish of Orleans, to fix the place of holding courts of justice, and for other purposes." The ground taken was, that so far as the statute tends to regulate and control the trial of cases which were instituted, and in which juries were prayed for prior to its passage, it violates the twentieth section of the sixth article of the Constitution of the State, and is, therefore, void. The Baldwin v. Bennett and others. 1 Judge was clearly right. Under the constitutional provision relied on, no acquired rights and existing contracts can be affected by subsequent legislation; but it is otherwise with regard to remedies and forms of proceeding. Whatever relates to the manner of conducting and trying a suit, (litis ordinatio,) is always within the control of the Legislature, who can, at any time, make any change or modification they may think conducive to the public good, and a proper administration of justice in our courts. SAME CASE-ON A RE-HEARING. Action by the plaintiff for two months wages as the pilot of a river steamer. It was proved that he had been employed for the season, at certain wages, payable monthly; that having determined to leave the boat, he applied to the clerk in the middle of a voyage, for the payment of two months wages then due, who refused to pay him then; that he never applied to the captain for payment, never informed him of the refusal of the clerk, nor gave him any notice of his intention to leave. It was shown that the captain remonstrated with him for leaving, and that his departure injured the voyage; also that the steamer had made one or more voyages during the first month, and had earned freight, by which the defendants were benefited. Held, that neither the expiration of the month, nor the failure to pay his wages, for which the law gave him a privilege on the vessel, justified the plaintiff in leaving the steamer during the voyage; that by doing so, he forfeited the wages of the last month; but that one or more voyages having been made during the first month, by which freight was earned, plaintiff should have been paid the wages of the first month, and that they were not forfeited by his subsequent desertion. The well settled principles of maritime law, that where an officer or seaman employed for a voyage, at monthly wages, voluntarily leaves the vessel, before its termination, without good cause, or the assent of the master, he will forfeit his wagesthat if the vessel be lost and earns no freight, the mariner gets no pay, though engaged by the month-and that even where no definite voyage is specified or terminus fixed, the contract is subject to the equitable restriction that it shall not be terminated at a time, or under circumstances particularly inconvenient to the other party, should be extended as far as applicable, to persons engaged in the navigation of our rivers and along our coasts. GARLAND, J. On the application for a re-hearing, we have again attentively looked into the facts of this case, and the law which governs it, and have concluded to modify our former judg |