text:
      COX vs. BALDWIN.

    The legal subrogation which is created by payment made'by a debtor, who being bound with or for another, has an interest in discharging the debt, is as extensive as any express subrogation.
    Appeal from the court of the first district.
    The commercial firm of Beale <fc Baldwin, which once existed in Kentucky, (and of which the defendant was a partner,) became indebted to Andrew Eliot and Co. of Philadelphia, in the sum of one thousand five hundred and eighty-five dollars and five cents, and upon the dissolution of the firm of Beale Sc Baldwin, Beale assumed the payment of the partnership debts,
    After a judgment had been recovered against Beale alone, for the amount, one of the Eliots applied to the defendant, Baldwin, for payment of their debt, and was answered that he would accept a draft from Beale for the amount. Beale accordingly drew a bill of exchange on t}ie defendant, in favor of George Eliot, which was endorsed over to Andrew, who presented it to the drawer, and upon his refusing to accept, the bill was protested. Beale afterwards coming to New-Orleans, a bail writ was sued out against him as drawer of the bill, by Andrew Eliot, and Hawkins and McLean became his bail.
    Beale having failed to pay the judgment obtained by Eliot, in May, 1822, proceedings were instituted against Hawkins & McLean,, and judgment entered up against them for one thousand five hundred and eighty-five dollars and five cents, one half of which was paid by Hawkins.
    McLean being insolvent, and execution having issued against Hawkins for the remainder of the debt, he obtained an injunction, and Cox, the plaintiff, became his surety on the injunction bond. Hawkins dying soon after insolvent, the injunction was dismissed, and Eliot having obtained judgment against Cox on the injunction bond, he was compelled to pay the remainder of the debt.

      The petition concluded with a prayer, that as the debt for which the said Beale was originally held to bail, was a debt due by a commercial firm, of which the said Beale and the defendant, Baldwin, were the partners, and for which they were bound in solido, and inasmuch as by the payment of said debt, the plaintiff had been subrogated to the rights of the creditors, that the defendant might be condemned to pay him the amount claimed, with interests and costs.
    There was judgment for the plaintiff and the defendant appealed.

      Me Caleb, for appellant, contended:
    1. That when Andrew Eliot Sc Co. received the bill drawn by Beale in favor of a third person, (George Eliot,) and George Eliot transferred said bill to another third person by endorsement, (to wit, Andrew Eliot,) that he (A. Eliot,) swearing that the amount was-due to him, sued upon the bill; obtained judgment and satisfaction of the bill, that the open account becamed merged in the bill, and that there was a novation of the debt. If a novation, then Baldwin is not bound, for it is one of the ways by which an obligation is extinguished. Here a new debt was contracted, which was , ,. substituted for the old one. A new debtor was substituted to the old one who was discharged, and a new creditor is substituted to the old one with regard to whom the debtor is charged. Old Code, p. 296, art. 173, sec. 1: 1 Evans Pothier, 390, 391; 12 Johns. Reps. 409; 11 Johns. Reps. 520; 5 Term Reps.; 7 Toulier, 335, Nos. 276, 277.
    2. If there was no novation, yet the defendant contends that the plaintiff has never been subrogated to any rights which can make him liable to pay him — perhaps not even to rights against Beale. Old Code p. 288, art. 149, 151; 7 Toulier, p, 119, No. 97; Merlin questions de droit.
    3. If plaintiff be subrogated to rights of. Andrew Eliot and Co. upon Hawkins, and through Hawkins subrogated to rights upon Beale: still defendant is not liable to pay plaintiff, for he shows that Beale never could recover against him, defendant, because, at the dissolution of the partnership, Beale assumed the common debts; and because if he had not, Baldwin now holds Beale’s notes, (spread upon the record,) which he could plead in compensation if he were sued by Beale.

      Strawbridge, for appellee,
    contended:
    1. Subrogation takes place of right for him, who being bound for others, or with others, has an interest in discharging the debt. Old Code, 290, art. 151; New Code, 2157; 7 Tou-lier, 191, No. 147; rights of surety against principal, whether with or without his knowledge. New Code, 3007-9,3021-2; Old Code, 430, art. 14, 15; 7 Toulier, No. 147-8.
    Subrogation equivalent to cession, 7 Tou-lier, p. 147, No. 119; transfers all accessaries, 7 Toulier, p. 147, No. 120; 4 New Code, 2615.
    2. Novation not presumed, must be expressed: no performance of Baldwin’s engagements, therefore no novation. Evans Pothier, p. 390; Old Code, p. 196, art. 173, 182; New Code, 2185, 2194; 8 Martin Reports, 422; n. s. 144.
    3. Baldwin’s engagement to accept was subsequent to the dissolution and agreement with Beale: a promise to accept before bill drawn, is, under circumstances, an acceptance. Chitty, 217, 8, 9; Bailey, 103, 4, 5.
   Porter, J.

delivered the opinion of the court. A. Eliot having obtained a judgment against Beale, proceeded against Hawkins, who was his bail. Hawkins procured an injunction, giving Cox, the present plaintiff, as . . . . ... , .. his surety. I he injunction being dissolved, and Hawkins dying insolvent, the plaintiff pajd Eliot the debt he had sued for. This is brought to recover from the defendant, who was partner of Beale, the debt due by the firm of Beale &. Baldwin, which debt the plaintiff alleges he discharged.

The general issue was pleaded; the plaintiff had judgment, and the defendant appealed.

The statement of facts show, that a commercial partnership existed between Beale and the defendant in Kentucky, and they contracted a debt to Andrew and George Eliot, for which George Eliot received judgment against Beale alone in Kentucky.

The partnership between Beale and the defendant was dissolved on the first day of December, 1818. Beale assumed the payment of all the debts of the • firm, and the defendant receiving 83287 in cash and notes, transferred all his rights in the concern to Beale.

In the same month, or soon after, the defendant was applied to for payment of the debt due to the Eliots, and he referred the applicant to Beale, saying that Beale had funds to pay the debt, but that he, the defendant, would accept Beale’s draft iherefor. A draft was accordingly obtained on the 20th February, 1820, payable to the order of George Eliot, who indorsed it to Andrew. The defendant refused to accept it, and suit was brought against Beale, on which Hawkins became bail.

On this, the plaintiff’s counsel contends, that his client, having as surety of Hawkins, the bail of Beale, paid to Eliot a debt, for which the defendant was bound in sólido with Beale; he has been subrogated to the rights of the creditors, who received his money, and consequently may exercise them against the defendant.

By the article 151 of the Old Code, under which this transaction arose, subrogation takes place of right, 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. C. Code.

Art. 152 provides, that the subrogation takes place as well against the securities, as against the debtors.

The plaintiff argues, in becoming bound for the partner of the defendant, I became bound for him. It was the same debt. I £,&<3 an jnteres¿ jn discharging it, and the moment X did so, I became subrogated to all the rights of the creditor. He could have sued the defendant, and I of cours e can. The legal subrogation stands in place of the conventional. It is the same thing as if I had obtained an express subrogation of all the creditors’ rights. There is no difference between a sale of the debt by the creditor, and a payment by one of the parties bound for it.

The defendant answers, you were never bound for me, nor with me. You became surety for the bail of my partner, which was a distinct engagement. Had I been sued on this debt, you could not have been sued with me as my surety. If an action had been brought against you, you could not have pleaded discussion of my property. W hen there are several debtors in solido, any one of them may give distinct sureties, and in such case they are not bound with, nor for the co-obligor. My partner is largely indebted to me: had he paid the debt I could have pleaded compensation to his demand: , t i • , , , , you cannot, by discharging a debt due by him, acquire greater rights than he could by making payment.

The ground assumed by the defendant is apparently supported by Pothier, “When (says he,) the surety is only bound for one, of the debtors in solido, and not for the other, the surety, after he pays the debt, has oply a direct action against him for whom he bound himself. He can only,, as exercising the rights of his debtor, put in forcé those which that debtor might exercise against his co-debtors, and in the same manner.

Pothier, on Obligations, 441.

At the time Pothier wrote, the co-debtor or surety, who paid the debt, might take a subrogation, but if he did not, there was no legal one. He was driven to the action man-dati contraria; if he paid by the consent express or implied, of the principal debtor, or the action contraria negotiorum gestorum, if he paid without. We apprehend it is in relation to the right acquired by payment, without subrogation, the author is treating in the passage above cited; for in No. 427, he expressly states, that the surety, when he pays, may require of the creditor to sub-rogate him to all his rights, actions and hy-pothecations, as well against the principal debtor, for whom he has become surety, as against all the other persons who are liable for the debt.

The legal sub-rogation which is created by payment made by a debtor, who being bound with or for another, has an interest in discharging the debt, is as extensive as any express subrogation.

The legal subrogation which is now created by payment made by a debtor, who being bound with, or for another, has an interest in discharging the debt, is as'extensive as any express subrogation could be. The enquiry then is, was the plaintiff bound with the defendant, or for the debt he owed ? We think he was. The obligation he came under, as surety on the bond given to obtain an injunction, gave him an interest in discharging the debt due by Beale &. Baldwin, and it appears the payment made by him, did discharge it.

As to the other ground of defence, that the debt was novated, we do not see any force in it. The bill was taken in a country where the common law is in force, and the debt was contracted under the same system. We understand it to be a very clear principle, in that jurisprudence, that the acceptance of a note or bill of exchange, does not extinguish the debt it is given to discharge.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.


source: Caselaw Access Project

author: Porter, J.

license: Public Domain

text:
      FITZ vs. HAYDEN.

    An agent wbo in the discharge of his duties as such, takes by consent of the principal, a conveyance of property in his own name, while at the same time he is not the real owner, is not bound to sue for the possession of the property at his risk and expense, unless that possession has been lost through his fault. He fulfils his obligations, and discharges his duty by offering to reconvey when called on.
    Appeal from the court of the parish and city o f New- Orleans.
   The facts in this case are fully given in the opinion of the court delivered by

Porter, J.

The defendant was employed by the plaintiff several years since, to superintend and direct the building of a steam-boat at Cincin-natti, in the state of Ohio, where the defendant resided. The plaintiff made advances and the work was proceeded in. Before the boat was completed the plain tiff became insolvent. Desirous to protect the defendant from any injury he might sustain in consequence of advances on behalf of the boat, the plaintiff made an absolute conveyance to him and J others who were concerned in her construction, of all his right, title and interest therein. the conveyance the defendant proceeded to have the boat completed under the direction, and with the assistance of an agent whom the plaintiff sent to Cincinnatti. The one third of the boat which had been sold by the plaintiff on the eve of his insolvency as already stated, was by conveyances to which all parties assented, vested in one Talbot.

The vessel was called La Selle Creole, and at the time she was finished the title to two thirds of her was vested in the plaintiff, and one third in Talbot. In this situation she was taken to Louisville, to have the engine put in by the firm of Prentiss and Blake-well, engineers, and to be finally prepared for navigating the river.

When finished, a difficulty arose respecting the adjustment and payment of the account of the engineers. They had a lien on her, and refused to permit her to depart for New-Orleans, unless their claim was paid, or a conveyance made to them of one third of the boat. An arrangement was finally made between Hayden and them, by which they received a conveyance of one third of , , . . . the boat, and. gave at the same time a counter letter, by which they declared that Hayden should have the right to rebuy or purchase back the said share, if within fifteen days? after the arrival of the boat in New-Orleans, he paid to them the sum of S30Q0. Stone, the agent of the plaintiff*, who had been sent by him to attend to the completion of the boat, protested against this conveyance, but from every thing we can discover it was a matter of necessity, and considering the defendant as the agent of the plaintiff*, it appears to have been a prudent measure. The plaintiff* too, subsequently ratified it.

Things being in this situation, the defendant attempted to put in command of the boat one Emmerson, but Prentiss and Blake-well, and Talbot, as owners of two-thirds, resisted this demand, and the person last mentioned, took the control and management of her, and descended the river to New-Orleans. Emmerson came down in her as passenger, with a power of attorney from the defendant, by which he was empowered on the receipt of the money due Prentiss and Blakewell, and the payment of the balance owing the defendant, to convey the two-thirds , of the boat to the plaintiff.

The plaintiff attempted to make these pay-meats, and after several negotiations he succeeded so far as to obtain from Emmerson, the agent of the defendant, a letter addressed to Captain Talbot in the following words: “Sir, I have disposed of the two-thirds of steam-boat Belle Creole, which I represent, she must be delivered free from cargo, or any engagements of that kind. It will likewise he necessary to furnish them with an inventory of cabin furniture, and all other apparel on board, as belonging to them.” Talbot refused to deliver up the boat. She soon after left the port, and where she has since been, or whát has become of her, the record does not inform us. '

These as we understand, are the material facts to be gathered from the mass of confused, and irrelevant matter, with which the record is loaded. It will be seen from the statement just made, that the responsibility of the defendant turns entirely on the performance of his contract, express or implied, to convey the boat to the plaintiff on his arrival in New-Orleans. The plaintiff insists it was the duty of the defendant to sell and deliver her. The defendant urges it was sufficient for him to make a conveyance of all his right and title, and if any ulterior steps were necessary to get possession, the plaintiff should have pursued them.

The defendant it is clearly proved, acted as the agent of the plaintiff through the whole transaction, as well before, as after the conveyance made to him, though it is shown, he considered he might become the absolute owner, unless the plaintiff would repay him his advances. But it is established that he was ready to reconvey the boat at any moment, not on the payment of the one-third of her value, but on the repayment of the money advanced, thus admitting he was but the trustee of the plaintiff, and not the real owner. The plaintiff chose to consider the defendant as his trustee, or agent, and as holding the boat for him. The defendant assented, and offered to reconvey. In carrying this contract into effect, the obligations of the parties must be sought in the characters in which they acted, and it appears to us, they can be considered in no other light but as principal, and agent, for the agreement to recon-vey was a performance of the obligations which the defendant as agent had contract» jp (.^jg vjew of the subject be correct, the defendant was not responsible for the non delivery of the boat. An agent, who in the discharge of his duties as such, takes ... by consent of the principal, a conveyance ... ... of property in his own name, while at the same time he is not the real owner, is not ■ . ' bound to SUe for the possession of the property at his risk and expense, unless that 1 possession has been lost through his fault. He fulfils his obligations, and discharges his duty, by offering to reconve'y when J J a called on. That, the defendant was pre-nared to do in this instance, and the plain-1 tiff must impute it to his own fault, that he did not take the conveyance, and pursue the legal measures to obtain possession.

An agent, who in the discharge of his duties as such, takes by consent of the principal, a conveyance of property in his own name, while at the same time he is not the real owner, is not bound to sue for the possession of the property at his risk and expense, unless that possession has been lost through his fault. He fulfils his obligations and discharges his duty, by offering to re-convey when called on.

We are of opinion that there has been no act of conversion on the. part of the defendant, which renders him responsible as owner of the boat for the moneys advanced by the plaintiff in her building.

And it is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, and that there be judgment for defendant as in case of nonsuit with costs in both courts.


author: Mathews, J.

text:
      HOWARD & AL. vs. OWNERS S. B. COLUMBIA.

    Dilatory exceptions must be plead in limine lites.

    The amicable demand must be specially denied in order to put the plaintiff to proof of the fact.
    Appeal from the court of the first district.
    The plaintiffs who were ship-carpenters, brought this suit to recover from the defendants, a balance which they alleged to be due them for work and labour, and materials furnished in repairing the steam-boat Columbia. The defendants denied that the work had been faithfully done. That the boat was unnecessarily delayed in the ship-yard of plaintiffs, by which heavy damages were incurred which they claimed in reconvention.
    It appeared from the'contract entered into between the parties, that a part of the stipulated price was to be paid as the work progressed, and the balance in three and four months after the boat commenced running, or after her repairs were completed. The boat left the shipyard on Friday the twenty-eighth of October, 1829, took in freight and went up the river ° _ 1 the Sunday following. Suit was instituted on seconcj 0f November. It was proved that every exertion was used by the plaintiffs to expedite the work, that when the boat left the yard the repairs were complete except what was done by plaintiffs after she crossed the river, and that she left when she did, at the request of her captain who was anxious to take in freight. There was a verdict and judgment for the plaintiffs and the defendants appealed.
    Duncan, for appellants.
    1. The contract on which suit is brought shows that the plaintiffs were not authorized to bring their action at the period it was instituted. C. C. art. 2038, 2039.
    2. There is error in the judgment of the court below" in condemning the defendants to pay costs, no amicable demand having been made. C. p. 169 ; 8 Mart. n. s. 107.

      Carleton and Lockett, contra.
    The cause depends entirely on questions of fact, and the plaintiff relies upon the verdict of the jury.
   Mathews, J.

delivered the opinion of the eourt.

This is a suit brought by a company of ship-carpenters to recover from the owners of the steam-boat Columbia, a balance which they alleged to be due to them for work and labor, and materials furnished in repairing said boat by contract with the proprietors. The cause was submitted to a jury in the court below, who found a verdict for the plaintiffs, on which a judgment was rendered with costs, and from it the defendants appealed.

The principal points filed in this court against the correctness of the decision of the district court, are,

First, that the suit was prematurely commenced as according to the terms of the contract on which the action is based, the defendants were not bound to pay the sum now claimed, until three and four months after the work was completed, or the boat commenced running; which time had not elapsed previous to the institution of the present action.

Second, That no amicable demand of payment was made, or proven to have been made, on the trial of the cause, &c.

LbiIatory_excep^ plead TnlimL ltes‘

Tha amicable spetíaUy denied! the°pkintíff r proof of the fact.

The objection to a recovery by the plain-J J J r tifís, on the ground alleged in the first of these points, being a dilatory exception, oag^lt to have been pleaded in limine lites, which was not done, and consequently no advantage can now be had from it.

As to the merits of the ease which depend on the testimony, we find nothing on the record to authorize an interference with the verdict of the jury.

In relation to the amicable demand, it is believed that it forms no part of the merits of a cause to which a general denial is, perhaps, exclusively applicable. It may be considered as analogous to an allegation i[1 a petition by which the capacity in which a plaintiff sues is declared. Such as executor, administrator, or heir, &c. which must be specially decreed, in order to put the petitioner on the proof of such fact.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.


author: Martin J.

text:
      CHARDON vs. GUIMBLOTTE.

    An appeal lies from the release of a debtor on a writ of habeas corpus in a court action.
    The sheriff having refused to discharge the defendant after the order of bail had been set aside, the latter' applied for a habeas corpus and was brought up. The sheriff showing no other cause for his detention, than the order of bail, (which had been set aside) the court ordered him to be enlarged, from which order an appeal was prayed for and refused. The judge having made return to the rule taken on him to show cause why a mandamus should not issue commanding him to allow the appeal prayed for.

      Waggaman and Miller, for plaintiff.
   Martin J.

delivered the opinion of the court.

A rule having been taken on the judge of the first district to show cause why a mandamus should not issue, commanding time to allow the plaintiff an appeal in this case, he made the following return, as follows.

“ A rule was taken on the plaintiff to show cause why the order of bail, obtained in this suit, should not be set aside : upon ... . hearing testimony, the court was satisfied that the facts in his affidavit were disprove(j^ whereupon the order of bail was set aside. From this decree the plaintiff prayed an appeal which was allowed.

An appeal lies, from the release of a debtor on a writ of habeas ewpm, in a civil

The defendant being in custody, and the sheriff declining to discharge him, a writ of habeas corpus was applied for, in favour of the former, and on his being brought before the judge, and the sheriff showing no cause for his detention but the order of bail that had been set aside, the prisoner was discharged. From the order of discharge the plaintiff prayed an appeal, which was refused; the judge being of opinion that an appeal does not lie from an order on a writ of habeas corpus, which is a writ which may issue at chambers, and of which there is no record: besides, is is considered as issuing from the court here and is not a civil proceeding.

The constitution having provided appeals . . _ . , . in all civil cases, m which the matter in dispute exceeds m value the sum of three hundred dollars, it is clear a party has a right to an appeal from any decision (in such a case) which works an irreparable injury; and if an appeal lies from a decree made in open court, where the judge has the benefit of counsel, a fortiori when an order is granted at chambers, ex parte: as that order may have as fatal a consequence as any other: as in the present case, when a defendant, in custody on a debt of fifty odd thousand dollars, is released ex parte? and if there be no remedy, may instantly remove out of the state, and soon place himself beyond his creditors’ reach.

On an application for a writ of habeas corpus, there must be an affidavit of the facts, a petition, an order thereon, a return and a decree. If these documents do not constitute a record, we are ignorant of what does, and we believe these documents ought to be filed in the office of the clerk of the court, the judge of which acts on the application.

The jurisdiction of this court being confined to civil cases, it would not entertain an appeal from a decree on a writ of habeas corpus, issued in a criminal case; and in Laverty’s case, it declined acting on a writ issued in a political case, that of a native of Ireland, (during the war between the United States and the kins of the three United Kingdoms of England, Scotland and Ireland,) arrested by tke marshai 0f the United States, to be J 1 geut jnto the interior of the country. In that case another consideration may háve had an influence on the decision of the court : the prisoner was in custody, under the authority of the United States.

In the present case, the defendant was arrested in a civil case ; the plaintiff had interest to have his person arrested, for the security of a flarge claim. The order by which that of bail was set aside, worked to him an irreparable injury, and it enabled the defendant to remove beyond the limits of the state, and probably beyond his creditor’s reach. The district court correctly allowed the appeal. This suspended the execution of the order setting the order of bail aside, and the sheriff very properly declined to set his prisoner at liberty. The writ of: habeas corpus was properly granted, but in our opinion, the judge erred in liberating the defendant.

It is therefore ordered, adjudged and decreed, that the rule be made absolute.


text:
      GASQUET & AL vs. JOHNSON & AL.

    The rights of different creditors are to he examined in concurrence only in cases of actual insolvency, either by a voluntary or forced surrender on the part of a debtor.
    No distinction exists between suits prosecuted in the ordinary mode by citation, and those which are pursued by attachment.
    In a suit upon a bill of exchange, an amendment, changing the amount of the bill, is not altering the nature of the suit.
    Amendments may be allowed after issue joined.
    When a witness is to be examined on interrogate-’ ries, if an opportunity, as pointed out by law, be given to the adverse party to file cross interrogatories, notice of the time and place of taking the answers is not required. Therefore if the commissioner give an erroneous one, the mistake will not be fatal.
    Appeal from the first judicial district.
    Suit, by attachment, was brought against the defendant, a merchant at Nashville, as drawer of a bill of exchange on a merchant of the latter place, and returned under protest for non acceptance. Several other creditors af-terwards, brought suit, and the writs of attachment were levied on the same property that had been previously attached by W. A. Gasquet and Co. After the cause, which had already been before this court, was remanded, (see vol. 8, n. s. p. 544,) the attorney appointed to represent the defendant, filed a general denial.
    jn the originai petition, the bill of exchange was state¿i to be for the sum of five thousand four hundred and sixteen dollars and two cents, and bearing interest after six months by agreement at the rate of six per cent, per annum, making in all the sum of five thousand six hundred and thirty-seven dollars forty-seven cents.
    An amended petition was afterwards offered, and allowed to be filed, which alleged that the bill had been erroneously described; that the interest had been included in the bill at the time it was drawn, and that it was drawn for the aforesaid sum of five thousand six hundred and thirty-seven dollars and forty-seven cents, being principal and interest.
    Otis Loomer and Go. and the other creditors whose attachments had been levied on the same property on which the plaintiffs had attached, prayed tobe allowed to intervene on the ground that the plaintiffs ought not to have been permitted to amend their petition, that the court erred; in allowing this amendment, and that they were aggrieved by this decision inasmuch as the property attached was insufficient to discharge the claims of all the attaching creditors, . and that had not this amendment been allowed, the plaintiffs would have failed in their action. The plaintiffs denied their right to intervene. The court, sustained the objection, and dismissed the petition of intervention ; from this decision the interpleaders appealed.
    To prove the protest of the bill, and due notice to the defendant of its dishonour, the plaintiffs offered in evidence the deposition of a notary public, taken under a commission, directed to Nashville. The interrogatories to the witness had been served on the counsel of the opposite party, who had subjoined cross interrogatories. On the return of the commission it appeared, that notice of the time and place of executing the commission had been given by the commissioner to the defendant then at Nashville, but that the examination of the witness had taken place at a different time from that mentioned in the notice. The introduction in evidence of the deposition was objected to on the ground of this variance, and the deposition was rejected.
    A witness on the part of plaintiffs testified? that he was present at a conversation between one of the plaintiffs and the defendant, in which the latter had observed that “ he did not wish to oppose any obstacle to the recovery of plain* ancj if iie had obtained any pre-£erence ¡-¡y his prior attachment or execution, did not wish to interfere in the matter; that they were all just debts, and his wish and intention was to pay them all. He regretted the protest of the bill, and spoke of his absence as being the cause of it; said that plaintiffs had acted honorably, [but that nevertheless he wished them to be paid.”
    The court a quo considered this conversation as an admission of the debt or a waiver of notice, and rendered judgment for the plaintiffs.
    The defendant appealed. Conrad for plaintiffs. Contended that the court was correct in dismissing the petition of the interpleaders. He quoted on this point. Norris’ heirs vs’ Ogden, Mart. Rep. vol. II. p. 460 — 1. Clamageran vs. Brookes, and Hendricks et al. 4. n. s. 487. Pierre et al vs. Massa et al. 7. n. s. 196.
    That the court erred in rejecting the deposition of the witness examined under the commission to Nashville. Cited Code Practice, art. 426, 430. Will vs. Jett, Mart. Rep. 6. n. s. 280.

      ' That the expressions used by defendant in his conversation with one of the plaintiffs as detailed by the witness, were either a waiver of notice, or an admission that he had received it. Cited Baily on Bills, p. 320.

      Ml Caleb, for appellant.
    The bill of exceptions taken to the opinion of the judge a quo in dismissing the opposition must be sustained. This is one of the very cases mentioned in the Code of Practice, where the opposing parties were claiming higher privileges than Gasquet and Co. upon the ground of prior attachments, and where they had reasons to fear injury would result to them. C. P. 389. 395. 391, 393, 5 M. n. s. 501.
    The order for attachment was given by the clerk, when it is not shown that the judge was absent. C. P. 239, 780.
    The amended answer should not have been permitted to be read; it changed the nature of the action. C. P. 171, 172, 260.

      Slidell, for defendant.
   Mathews, J.

delivered the opinion of the court. This suit is by attachment, and brought on a protested bill of exchange which was drawn by the defendant, Johnson, in favor of the plaintiffs on Kyle and Orr of ]>fash ville, Tennessee. Judgment was ren-4ere¿ jn t}le court below for the plaintiffs, from which the defendants appealed.

The cause was one previous to the present appeal before this court. The judgment of the district court was then reversed, and the ease remanded to be tried de novo.

The evidence on which the last judgment has been rendered in the court below, is fully spread on the record, to the admissibility of which several bills of exceptions were taken. But before examining them, or the merits of the suit; it is necessary to dispose of the claims and pretensions of certain intervening parties, Otis Loomer and Co. and others. The first attachment levied on the property of the defendant, was that of the plaintiffs Gasquet and Co. Afterwards the same goods were seized at the instance of other creditors, under attachments issued subsequently to that of the plaintiffs. Finding that Gasquet and Co. had obtained a preference on the property of the defendant, by the priority of their attachment, the other creditors then intervened with the avowed purpose of defeating the action of the original plaintiffs, and allege various errors in the proceedings by which it was carried on. The first question to be settled in relation to these parties, is whether they have a right to intervene ? To show that they have, their counsel relies on the provisions of the Code of Practice, on the subject of intervention or interpleading, art. 389, declares “ an interventor or inter-pleader to be a demand by which a third person requires to be permitted to become a party in a suit between other persons ; either by joining the plaintiff in claiming the same thing or something connected with it, or by uniting with the defendant in resisting the claims of the plaintiff.” Art.*390, “In order to be entitled to intervene, it is enough to have an interest in the success óf either of the parties to the suit.” This we suppose must be a direct interest by which the intervening party is to obtain immediate gain, or suffer loss by the judgment, which may be rendered between the original parties; otherwise the strange anomaly would be introduced into our jurisprudence, of suffering an accumulation of suits in all instances where doubts might be entertained, or enter into the imagination of subsequent plaintiffs, that a de- . . iendant against whom a previous action was un(^er prosecution, might not have property sufgcjen(; t0 discharge all his debts. For as the first judgment obtained might give a preference to the person who should obtain it, all subsequent suitors, down to the last would have an indirect interest in defeating the action of the first. This certainl/ was not the intention of our legislators. The rights of different creditors are to be exa- ... ... mined m concurring only m cases of actual . 1 surrender on the part of a debtor. nsolvency, either by a voluntary or forced

The rights of different creditors are to be examined in concurrence only in cases of actual insolvency, either by a voluntary or forced surrender debtor.

No distinction 6Xl$t8 D6tW66n in'^he Ordinary an'dttose’which attachment.^ by

js true, that in. cases of attachments, a contention and scuffle, for the property of the debtor, takes place among the attaching creditors, very similar to that which occurs in a concurso; but the rules by which these two species of judicial proceedings are governed, differ from each other. In relation to legal procedures against debtors not known to be insolvent, no sound distinction exists between su‘ts Prosecuted in the ordinary mode by c,tati°n? anc* those which are pursued by atiachment. We therefore conclude that the intervening parties had no right to inter-_ . i • 1 xere in the manner by them attempted in the present case, and that their petition ought to have been rejected in the first instance; and here deserves no further notice.

,1" a su:t uPon a bill of exchange a? amendment, changing the amount of the mu, is not altering the nature of tha .suit.

The first objection made on the part of the defendant, to the correctness of the proceedings which took place in the court below, is to the permission awarded to the plaintiffs to amend their petition. His counsel insists that this amendment was illegally permitted on two grounds. 1. That it changed the nature of the action. 2. That according to the Code of Practice amendments are not allowable until after issue joined. As to the first of these grounds it is wholly untenable. The suit was brought on a bill of exchange, and in declaring on it, a mistake was made as to ' the amount for which it had been' drawn. An amendment by which- this mistake is J rectified,- most clearly, produces ho; change* 4/1 ° in the nature of the action. The second ground of defence- assumed against the ad- .... 0 missibility of this amendment, appears so novel, that it might be well passed unnoticed, were it not for the indefinite manner in which the subject of amendment is treated by the. Code of Practice. It begins by stating, art. 419. “After issue joined the plaintiff may, jeave 0f the court, amend his ori-gjnaj petition,” &c. As no proviso is made for amendments previous to the contestatio lites ; it is contended that they are excluded from our practical jurisprudence. Previous to the promulgation of the Code of Practice, a court in the exercise of its discretion could allow amendments to a petition before issue joined, and such right of amendment awarded by law is certainly more reasonable, than that in virtue of which a petition is permitted to amend after a contestatio lites. It is impossible to believe that the legislature by the grant of a right, less just and reasonable, intended to abrogate one more fully sanctioned by a convenient, coiTect, and reasonable mode of judicial proceedings. The provisions of this art. of the Code, do not in our opinion present a case to which the maxim expressio unius, est exclusio atterius, is applicable. The amendment of the petition in the present suit was therefore properly allowed.

Amendments afterissuejoinedd

The only bill of exceptions in the cause which requires examination, according to the opinion which we have formed of it, is that , . , , , . . which relates to the rejection of the testimony of the notary .public in Nashville, taken by interrogatories. It appears that the commissioner who was authorized to take the testimony of the witness, and certify his answers to the interrogatories which had been proprounded by both parties to the suit, through the agency of their attorneys, gave notice to the defendant of the time and place where the examination would take place. The certificate-of the commissioner that the deposition of the witness was made under oath, and duly subscribed by the deponent, bears date on the twenty-eight of September 1829, but refers to the caption of the proceeding for the time and place, at which his testimony was taken ; which seems to have been on the twenty-fifth of the same month, three days previous to the period at which the defendant had notice to attend. In consequence of this apparent irregularity in taking the testimony of the witness, it was rejécted in the court below. We think this proceeding was erroneous. According to the rules prescribed by our Code of Practice, when a witness is to be examined by commission on interrogatories, if an oportunity as pointed out by law be given to the adverse party to gje cross interrogatories, notice of the time anc¡ p}ace 0f taking the answers is not required. See art. of the C. P. from 426 to 430.

when a witness is to be examined on inter-opportunity,lf as Lwfbe given to to fiufcross inter-tice^of* the tima ing the°eanswers Therefore^fUtha commissioner give an erroneous one, the mistake will not be fatal.

In the present instance, interrogatories were filed on the part of the defendant, and answered by the witness, and should it be admitted that the examination took place on a day different from that mentioned in the notice to the defendant, this cireum-stance ought not to prejudice the plaintiffs.

The notice was an act of mere superero-nation on the part of the commissioner, and ° . cannot do injury to those things which were legally done. But by a comparison of the date of the certificate, with that of the caption, it is probable that the latter was put down in error as being the twenty-fifth of the month, instead of the twenty-eight.

Admitting however the legality of the manner in which the commission was executed; it is contended that the testimony does not prove due notice of the dishonor of his bill was given to the drawer, the present defendant. The deposition or answers to the interrogators, seems to have been written by the notary himself. After J stating that he presented the bill of exchange to the drawers for acceptance, on the eleventh of June 1829, and their refusal to accept; he proceeds thus ; kl whereupon, I did as notary public, on the said eleventh of June, one thousand eight hundred and twenty-nine, enter protest against the drawer, &c. and gave notice thereof to said James J. Johnston, drawer, &c.” Now according toa sound grammatical interpretation of this sentence, it is evident that notice was given to the drawer of the bill on the same day of presentation and protest, and this is certainly legal notice. This testimony admitted makes the case clear in favor of the plaintiffs, and renders unpe-cessary any further examination.

It is therefore ordered, adjudged and decreed, that the judgment of the court be affirmed with costs.


author: Porter, J. Martin, J. Mathews, J.

text:
      MAXENT vs. MAXENT & AL.

    The proceedings of a family meeting are valid, although written and recorded in the French language.
    Appeal from the court of probates of the parish and city of New-Orleans.
   Porter, J.

delivered the opinion of the court This is an appeal from a decision of the court of probates, rendered so far back as the year 1819, which adjudicated to the mother of the appellants, an estate that was common property between her and them. The minority of several of the appellants, has enabled them to bring it up at this late ¡day, and they allege as error apparent on ■the face of the record, that the process verbal of the family meeting, on which the ¡adjudication was made, is written in the French language.

It was desirable on every consideration, that a question on which the title to such a large portion of property in this state depends, had received a full examination from the bar; but it has pleased those who had the management of the case, to submit it for our decision without argument; we are therefore compelled to decide it by such lights as our own understandings, and research may furnish.

According to a provision of the constitution of this state, all judicial proceedings are to be conducted and preserved in the language in which the constitution of the United States is written. It is now too late to en-quire into the policy or wisdom of introducing such a provision into the constitution. It is there, and must be obeyed. It was one of the conditions too, on which Louisiana was admitted into the Union, and superadded to the solemn obligation imposed on all public functionaries to obey, and give effect to the fundamental law of the state: we have in regard to this particular provision, the obligation of being bound in good faith to others, to do that which the people of this state through their Convention covenanted with the United States they would do.

Impressed, I hope, with a proper sense of the'magnitude and weight of these obligations, I have given to the case now before the court a more than ordinary degree of attention.

It is eighteen years since the territory of Orleans was erected into a state, and this is the first time the question which the present appeal presents, has come before the court m such a shape as to require it to be decided. gUf; other causes have been adjudicated on, bearing a greater or less analogy to that before us, which it may be well to pass in review before entering on the considerations which are particular to the case now presented for decision.

Immediately after the adoption of the constitution, a question arose under the clause in the constitution already alluded to, and it was presented to the superior court of the late territory, which at that time had not been superseded by the state tribunals. It was there decided that a mittimus in the French language was void. ' According to the report of the case, it appears to have been acted on without much argument, and indeed it does not appear susceptible of any: as an order emanating from a court ofjustice, committing a criminal to jail, is clearly and emphatically a judicial proceeding. 2 Martin, 277.

The next case in which the question was presented, was that of Dussau’s syndics vs. Bredeaux. The court there held that a creditor who had not opposed the. homologation of the proceedings of the creditors before the r ® , notary, nor appealed from the decree, could not avail himself of the process verbal being written in-French. The judge, (Derbigny,) who -delivered the opinio h said í ®We inclirie • indeed, to think?,-tbatthe afetsof tired-itors'.cóli-i vened By ai court ‘of justice,estire;part, oRheh judieihbproceediiigs,- which-should-' be -i-edoioa ded and conducted in’English.”

. In thd- case of Tregue vs. Tregre, - the; court- waived .the.quest ion as1 to- ¡tire necessity* of the. deli be Nations of a family meeting being-¡in; English, but decided, that- the ac ts-of' the judge decreéing- an -adjudication was a judicial proceeding, and must‘be in the lan---guagehn which the eons ti td tion. of thé Unitéd States was-written.6 Martin, 668:

.The-subject-came again*before- the-' cohfF in the case of Viales’ syndics vs. Gardner, and it wag then decided, that when the proceedings of creditors before a notary were returned into court, and made its judgment that they must be in the English language, no judgment appeared on record but the proceedings drawn up in French, and a judgment being a judicial proceeding could not be in that language. 9 Martin, 324.

• In the case of Dittman vs. Hotz, on an appeal from a judgment refusing to homolo-gate an award, asimilar decision was made, and similar reasons given for it. The court said that under the law as it then stood, no power was conferred on the judicial authority to render judgment on the award: all that could be done was to place it on record and order its execution, and that it could not be placed there as a judgment unless' it was in the English language. A distinction, however, was taken and recognized between that which was evidence on which the court decided, and that which was a judgment. It was said in the opinion delivered in that case: “if the award is merely the evidence on which judgment is to be rendered, it may be, written in any language the parties choose to adopt.” 9 Martin, 200. '

In the case of Durnford vs. Segher’s syndics, it was held that the proceedings of creditors in a- concurso carried on in the French language were voidable. That case presented the same question as that of Dittman vs. Hotz. The deliberations appointing syndics, do not require to be homologated. Their decision stands therefore when returned intp court as its judgment: and hence it follows, these deliberations must be in English. No judgment can be pronounced on the tableau, but that of homologation if it be approved, and as was said in Viales’ syndics vs. Gardner, the homologation has no other effect than to place what is homologated on record as the decree of the court. 7 Martin, 409.

In the case of Tilghman vs. Dias, an objection was made to an order of seizure and sale, issuing on an authentic act, executed in the French language. The court decided against the objection, and held; first, that it could not be considered as one of the public records of the state, which the constitution required to be in English, and second, that it was not a judicial proceeding; it was the evidence furnished to obtain judgment, 12 Mart. 691.

The petition praying for an adjudication of the property in the instance before us, is in English, and the judgment in that petition is in the same language. It is in these Words : “ Let the deliberations of the minors Maxenfs family hereunto annexed, be approved, and registered, and let the property within men-' tinned he adjudicated to the petitioner, at the price of .ils valuation in the inventory, as it is decided by said deliberation. -■

It is thus seen, that the case, hefqre. the courj ig‘ different.from any yet-decided by it. The judgment here is in the.coqstitu-tional language. In- the cases already mentioned, which bear the closet resemblance to this, the decrees were not pronounced in English: the proceedings in French were made the judgment of the court, or when presented for approval, they would have become so if homologate.d. The question ip therefore open, on, its merits, and we ar,e: at liberty to examine fit,, not indeed entirely uninfluenced bydhe eases already decided, ,but certainly uncontrolled by them, for;though in some respects alike, they are far from being the-same.*

That question is, whether a judgment pronounced in English, adjudicating property, where the deliberations of the family meeting haye .been.conducted, -, and, recorded, in French, is null and void?. -I feel it tobe one o.f considerable difficulty,, and.I know it to be one,, in which a great, and J am convinced an honestdiv-er.feity of opinion .exists, T,hi$i is not, surprising-Meh-will .be, found to differ on this, as on almost .all .questions ,oi general- importance, where there is the least .room for it, and more especially oh those, where'political objects are to be attained by legislation. - Nothing has such a tendency to warp and bias the mind, and confuse our researches after truth in legal questions, than the combination of such matters, and men who think they reason solely on the subject as one of law, will insensibly to themselves; differ in their conclusions, from the different views, they take of its policy, . Independent of this consideration, they will differ too, uncons'ciou,s of the cause, from temperament past of thought: habits of viewing legal questions.: and in this instance perhaps from the language .they' speak. The .sects which have always divided jurisprudence, exist here as in every other community. One class will interpret the terms judicial proceedings, lato sehsuo, the other stricta sensu, and thus arrive at'directly opposite results, One, viewing the object contemplated by the constitution as "of vast importance to the best interests bf a people, who forming part of a govérp-ihisht,' do not speatc its language, will prefer, and naturally come to think right, that constructjon which in a measure compels a state of things, they consider beneficial. Another, considering the desired end, retarded, rather than advanced, by any thing which carries with it an air of compulsion, who believe that the object sought for, will be best attained, by trusting to timé, and the influence of causes, which cannot fail of their effect unless prejudices are aroused against them, will leave to, and finally adopt that intérpretation, which leaves the' matter as much as possible to the will of the people, who are to gain, or to suffer by it.

Whether any of these considerations have operated in my mind is more than I can say. Perhaps they have. But if they have, it is unconsciously, for my aim has been, in common I am sure with the other members of the court, to seek for the true intent and meaning of the framers of the constitution.

Perhaps it would be correct to say, that nothing can be considered judicial proceedings, but writs, citations, pleadings, interlocutory orders, judgments, and executions. But definitions are dangerous, and it is better and safer to say what is not, than what is a judicial proceeding. It is material in my view of the case, to examine whether the evidence given in a cause can be considered such, and I do not think it can. It is not a proceeding of justice, but that on which judgment is formed and pronounced, and when it consists of written documents, it exists independent of, and previous to the suit in court. It could not have been the contemplation of congress when they proposed this condition, and lam sure it was not understood by our convention when they accepted it; that the people of this state were to cease at once using their own language for all written contracts, on pain of their being null and void. Such an idea cannot be harbored for a moment. If then the evidence need not be in the English language, is there any necessity for translating it into that language before it can be used; and is the judgment null and void where it does not appear on record, that this formality was pursued ? I think not, because the evidence is not a judicial proceeding, but the matter on which proceedings are had.

On this branch of the question I have no doubt; but I have serious doubts, whether the deliberations of a family meeting can be i •1 t ’ considered as mere evidence in the eause; The act under which the adjudication took-place, is in. these words : “ When the - legitimate father or mother .of. a minor, has 4nr estate in common with said minor, saidi father; of mother; may cause either the whole, ;;or part of. said estate to- be adjudicated! tó. him! or her by the judge, according to the ,estimated value of the inventory, provided this esti-‘ matioh has been' made- by appraisers duly sworn, and provided likewise said adjudication be decreed convenient to the interest of the minor by the assembly of the family, and provided moreover the same has been assented to by the under tutor,” Mart. Dig. 121, 128, no. 3.

- By this enactment it appears, that the* sentence of adjudication is pronounced on three-things: the estimation being sworn to ; the assent of the under tutor; and the advice of family meeting. And hence it may be said, that all, and each of these things, are the evidence on which the judge acts, when he decrees that the property shall be adjudicated. As however the family meeting give their advice and opinion to the judge, which advice and opinion must be formed on all the cir- . , , , , . , , , , ctimstances that coulu render such a rnea-sure proper; there is considerable force in the position that they are by law made assistants to the judge in pronouncing his decree, and that their deliberations form a part of the judicial proceeding. In opposition to this it may be said, that their functions cannot be distinguished from that of witnesses skilled in a particular art, or profession, who give their opinion to the court on other evidence, and on which opinion the court acts in pronouncing judgment. On the other hand, the deliberation of the family meeting, and the conclusion to which it arrives, bear a considerable analogy to the deliberations of a jury who hear the evidence, and give a verdict, on which the judge pronounces judgment. But the weight due to this last consideration is greatly diminished, by reflecting that juries are made bylaw a tribunal for the trial of facts; that when called on for that purpose, they take the place of the judge; that the trial is in open court; that in criminal matters the verdict is conclusive in favor of the prisoner; that when they decide the judge does not weigh the testimony. While in the case of an adjudication of minors’ property, he comes t(> his conclusions not on the advice of the family meeting alone ; but on that and other evidence, viz. the inventory and appraisement being sworn to, and the consent of the under tutor. That there is no more reason for not considering the deliberations of the family meeting evidence, than there would be to declare, that the assent of the under tutor, and the proof of the appraisement being sworn to, was not.

It cannot escape the attention of any one who reflects on this subject, that if the deliberations of a family meeting is considered a judicial proceeding, a most embarrassing consideration would arise in relation to another matter of daily occurrence in this state. We have the executory proceeding,, by which an order of seizuré and sale, may at once issue on a mortgage by authentic act, executed before a notary. Our law regards this as equivalent to a confession of judgment. We have decided that a judge in giving an order on it, acts judicially. 12 Mart. 691. If the family meeting be a judicial proceeding, it will be hard to draw the line between it and the act before the notary. Now though a cáse has been brought before the court, where this question was mooted, I do not believe that it was ever seriously doubted, that acts before notaries in the French language, had not the same force and effect as if they were written in English; the belief has been almost universal, that they were nothing more than evidence, on which the court might pro* nounce judgment, and order execution.

I have thus thrown together the different reasons which, have occurred to me in the examination of this question, why the advice of a family meeting should and should not be considered a judicial proceeding. If the subject was presented to me without the aid furnished by the opinion which the other branches of the government have expressed on it, I should have strong doubts, though the leaning of my opinion is, that it partakes more of the character of evidence, than any thing else. But the act of the legislature cannot be excluded from consideration, and the constitution has to be interpreted not by itself alone, but with the statute passed in relation to it.

In the year 1822 the legislature of this state passed an act, by which they in substanch declared, that the deliberations of a family . , J meeting were not judicial proceedings: because in the act it is provided, that the pro-cegg verjjaj 0f a fami]y meeting shall be as legal and binding on the parties, as if made and executed in the language in which the constitution of the United States is written.

That this act cannot control the case now under consideration unless it be constitutional, is a truth which requires no reasoning to enforce, and I trust the day is distant when it will be necessary to prove it. But though a law of the legislature can never make that constitutional which is not so in truth, it must exercise a powerful influence in deciding whether it be constitutional or not. The opinion of the legislative and executive branches of the government, sworn like the judiciary, to maintain the constitution, acting under every obligation which duty and conscience can impose, is certainly a strong, though not a conclusive reason to induce others where the case is not clear, to adopt their construction as correct. It has all the weight which authority, independent of reason, can have in any case. And if the subject be one on which doubt exists, it is the duty of the other branches of the government to adopt the con- , ° , , • „ struction: the peace ox society emphatically requires it.

I have looked, I believe, into all the cases whicli are reported to have come before the courts of the different states of the Union, and those of the United States in regard to the constitutionality of laws, and I find the principle just alluded to, has universally been admitted, and uniformly acted on. It is unne.-cessary to cite all these cases, or quote the language of the distinguished men who have been governed by this consideration. So early as the year 1798, judge Chase said, I never will decide any law to be void but in a very clear case; and the present chief justice of the United States, in delivering the opinion in the case of Dartmouth College vs. Woodward, observed: “On more than one occasion this court has expressed the cautious circumspection with which it.approaches the consideration of such questions; and has declared, that, in no doubtful case,would it pronounce a legislative act to be contrary to the constitution.” From every thing I can discover, I believe this principle to be as firmly established, as the right of the judiciary to pronounce a law unconstitutional. 3 Dallas, 395; 4 Wheaton, 624.

I am doubtful in this instance, whether the Jaw under consideration be unconstitutional, and I cannot pronounce it so. If the doctrine just stated be true, there never was an act of a legislature to which it can be more cheerfully applied. The statute interferes not with mens’contracts: it destroys no vested rights: it impairs not the protection due to property: nor violates personal security. It is in furtherance of justice: to quiet men in their estates: to protect the citizen in the possession of that which he has honestly acquired; and to prevent it being wrested from them on technical objections.

And this brings me to a consideration of great importance, and which I acknowledge has as much weight on my mind as the act of the legislature. It is now 18 years since the constitution was formed. During all this time it has been universally believed that meetingsof families might be conducted in the language of the persons called to deliberate on the affairs of minors. I believe it is not an exaggeration to say, that every twenty-five years, nearly all the property of the state passes through the court of probates. A large ° . , . . . ,. portion or it has been settled by proceedings similar to those now before us, and a decision pronouncing them void would produce the most disastrous effects on the best interests of society. Litigation to:a frightful extent, could not fail to follow a declaration on our part, that they were void. Litigation too in its most odious features, where the endearing ties of blood and friendship, would be sacrificed to cupidity: where brothers and sisters would be seen arrayed against each other, and children against their parents. No one can contemplate such consequences without pain,and nothing short of an absolute conviction on my mind, of the proceedings of the family meeting being clearly a violation of the constitution, could induce me to scatter the seeds of discord through the state and sow them in the bosom of families. The case before is a sample of what would follow. We have here presented the disgusting spectacle of children, for the sake of a little property, accusing their mother of misconduct, and dragging before a court of justice, the being to w horn they are indebted for life.

The importance of all constitutional questions is my reason for going so much at length into this. In concluding, I wish to state, that ifthe law was clearly unconstitutional,! do not think the continuance of the error for any length of time could render it valid. It appears to me that the implied assent of the other branches of the government which sanctions mistakes in relation to laws, cannot have any effect in constitutional questions, for they have no power to dispense with the fundamental lawof the state. But it is unnecessary to enter fully into this subject.

My opinion is that the judgment of the court of probates be affirmed.

Martin, J.

The defendants are appellants from a decree, approving the process verbal of the deliberations of the family meeting, and adjudicating to the plaintiff the property therein mentioned, common to her and the defendants her children.

Their counsel has assigned as errors apparent on the face of the record, that

1. The proceedings of the family meeting by virtue of which the whole estate was decreed to be adjudicated to the appellee, at J . 1 the price of the appraisement, are nail and void: the same not being written in English.

2. That the proceedings (being a public act) ought to have been attested by two witnesses.

The case has been submitted to us, without any argument.

I. By a provision of the constitution, H all judicial proceedings are to be conducted and preserved, in the language in which the constitution of the United States is written. Section 15. art. 6.

I remember but five decisions of this tribunal which cast any light on the question we are now called on to solve.

There is however, one of the superior court, before the organization of the judiciary of the state, according to the constitution, it is that in Macarty’s case, 2 Martin, 278 ; it was there held, that a mittimus, written in the French language was null and void.

This court was first called upon to act on the question in the case of Dussuau's syndics vs. Prideaux, 4 id. 451 ; we then decided that a creditor, who had not opposed the homologation of the process verbal of the deliberations of the meeting of the creditors , e before the notary, could not avail himself ot {j)3 circumstance of the document, being written ja tfle French language. We then said that we inclined to think that the proceedings of creditors, convened by a court of justice, are a part of these proceedings, the whole of which forms what is known to the Spanish law, as the juicio de concurso; as the con» stilution requires that all judicial proceedings should he conducted and preserved in the language in which the constitution of the United States is written, we are disposed to believe, that if the objection had come from a parly who had not concurred in, or adhered to the proceedings complained ofj it would be our duty to declare they are not legal.

The next case was that of Tregre vs. Tregre, 6 id. 668. We then held that the proceedings of a judge of probates, proceeding as such, to the partition of an estate, and decreeing the adjudication of it, were stamped with the character of judicial proceedings, and it was our duty to declare that, unless they were written in the English language, as the con» stitution requires, they were void.

The third was the case of Durnford vs. Segher's syndics, 7 id. 499, which was an appeal from a judgment of the court of the first district, setting aside the proceedings of the meeting of the creditors, because they were written in French, In affirming the judgment wo said, the proceedings set aside are judicial proceedings ; they are ordered by the court, and constitute a part of the proceedings, instituted by the debtor against his creditors, and are the basis of the judgment which terminates them. They are therefore some of the proceeding-:, which the constitution requires to be conducted and preserved in the language in which the constitution of the United States is written.

The fourth is the case of Dittman vs. Hotz, in which we expressed our clear opinion, that whenever one of the parties, who have submitted their case to arbitrators, applies to a court of justice to have their judgment to make the award valid, which the party presents for homologation, it must be written in the language which the constitution requires $ otherwise it would not judicially appear on the records of the court, by virtue of what sentence or judgment execution was awarded»

Lastly, is the case of Viales' syndics vs Gardner, id. 321. This was an appeal from the judgment of the court of the first district, refusjng t0 acknowledge the plaintiffs’ capacity as syndics, because the process verbal of the deliberations of the creditors before the notary, were written in the French language. The proceedings had indeed been homologated, but no part of them was recited, nor was any mention made of the plaintiffs’ appointment as syndics, in the judgment of homologation. We said “ to homologate is omos logos, similiter dicere, or to say the like. The case cannot be put on a footing more favourable to the plaintiffs, than by considering it, as if the whole proceedings before the notary had been verbatim and literatim transcribed in the judgment. Had this been the case, we would be bound to consider the part of the judgment written in the' French language as a nullity : and if what is on this record, written in the French language be disregarded, nothing shows that the plaintiffs were appointed syndics. The judgment of the district court was affirmed.

According to these decisions, it appears that the process verbal of the deliberations of the meeting of an insolvent’s creditors, and an award of arbitrators were considered by the judiciary power of the state as judicial proceedings ; and consequently were of no validity, unless conducted and preserved in'the language in which the constitution of the United Slates is written. Whether the process verbal of the deliberations of a family-meeting were to be considered in the same light, was a question which does not appear to have been brought.

The legislature was now pleased to enact that no process verbal of any family meeting, no written instrument containing the deliberations of any meeting of creditors, no decision or award of arbitrators, that may have taken place previous to the date hereof, or may take place hereafter, shall in any way whatever be attacked or invalidated, on the ground that it may have been made, executed, or drawn up in the French language ; but on the contrary, any process verbal of the deliberations of a family meeting, any act containing the deliberations of meetings of creditors, any decision or award of arbitrators, which may be made or executed in the French language, shall be quite as legal and binding upon the parties, as if the same had been made or exe- . cuted in the English language. Act of March 16, 1822.

• jt jiag appeare(| m rne that the present case may be disposed of, without inquiring into the force and effect of this act of the legislature. Allowing to the appellee every benefit he may attempt to draw from if, the decision of the court in the case of Tregre vs. Tregre is unshaken. The proceedings of a judge of probates decreeing the adjudication of an estate, are stamped with the character of judicial proceedings, and it is our duty to declare that unless they be written in the English language, as the constitution requires, they are void.

Neither is our decision in the case of Viales’ Syndics touched, and the present case, according to it, “ cannot be put on a footing more favourable to the plaintiffs than by considering it as if the whole proceedings, of the family meeting had been verbatim and literatim transcribed in the judgment. Had this been the case, we would be bound to consider that part of the judgment as a nullity : and if what is written in the French language on the record be disregarded, nothing shows what land is adjudicated. The _ . -r , decree is m the following words : “ Let the deliberations of the minors Maxents’ family, hereto annexed, be approved and registered, and let the property within mentioned be adjudicated to the petitioner, at the price of the valuation in the inventory, as is described by said deliberations.” Now, if in the case of Viales’ syndics, (whose appointment resulted from the homologation or approbation of the deliberations of the creditors, written in the French language,) could not establish their capacity, because the document referred to in the judgment of homologation, being in the French language, had not the character of judicial proceedings; how can the appellee establish whát land was adjudicated to her, and what are the directions of the deliberations of the family, while these lands and directions are not stated in the judgment, nor in any part of the judicial proceedings of the case f

It appears that the judgment is erroneous, because it does not show what land is adjudicated, nor what are the directions of the deliberations of the family meeting. This omission, indeed, would be cured, if this appeared by any part of the judicial proceedings. As we held in the case of Witmans’ heirs vs. Duhamel, a judgment must jje certain, but if it does not appear so on its face, it suffices if it appear to be so by a reference to the judicial proceedings in the case. If that certainly appeared only from a recurrence to the evidence, 1 think the judgment would be incomplete; for the evidence is not always conclusive, and it is a judicial process to extract the evidence from a mass of testimomy and instruments of writing; if a reference in any case be to a particular piece of evidence, I think it should necessarily be toa piece of evidence, written in the language in which judicial proceedings are to be conducted and preserved.

The other members have formed an opinion, which is about to become that of the tribunal: it is my duty, as I do not perfectly assent to it, to state my view of the case.

The family meeting, in a case like dhe present, is the assembly of the minors’ kin-, dred„ to whom the law requires a judge of probates to refer the main question of fact: «. e. whether it comports with his interests, A , . , , J, that his part ot the property common to him and the surviving parent be adjudicated to the latter, at the price of the appraisement. This finding is the basis of the decree, which puts an end to the action or suit instituted or commenced by the parent’s petition to have a family meeting called; the order of the judge therefor, the ci-tationto.the members of the meeting; the process verbal of their deliberations; the citation to the under-tutor, if he does not appear at the meeting; the petition to have the adjudication made according to the deliberations; and the judge’s final order appear to me essential judicial proceedings.

in case of insolvency, the debtor institutes or commences an action against all his creditors, in order to obtain a respite or their acceptance of the cession of his property and his discharge from liability to imprisonment. His petition, the order of the judge thereon; the citátion of the creditors to the meeting; the process verbal of the deliberations of the creditors, fyc. appear to me judicial proceedings, terminating by the final judgment

The process verbal of the deliberations of the creditors is the basis of the consequent decree, and is part of the judicial proceedings which precede it.

Such have been my impressions, when I joined my colleagues, in the judgments 1 have cited. I confess they were unchanged when the act of 1822 was promulgated. It is now my duty to see whether it presents to courts of justice a legitimate rule of action.

Its object appears to have been the gratuitous one of explaining the fifteenth article of the sixth section of the constitution, to remove from its influence certain documents, which repeated judgments of the inferior courts, affirmed by this tribunal, had declared within it. The act was expressly declared to have a retroactive effect. It appears to me the gratuitous exposition, interpretative and constructive explanation of the constitution are not legitimate objects of legislation!

The exposition, explanation, or construction, given to any part of the constitution, on which they are legitimately called upon to act, will command the respect of citizens and magistrates, as the opinion of the first branch of government, drawn forth in the exercise of its legitimate functions, e. g. in a late contest the decision oí the Senate and house of representatives, as to thepresi-dent of the senate, appointed last January, must command the respect of the judiciary, because the houses were by certain circumstances called upon to determine whether, on the death of a governor, his functions, till another was elected, devolved on the president of the senate for the time being ; or solely on the president of the senate, at the period of the governor’s death. The constitution imposing on the houses the duty of acting on .the question, when it arose, vested them with the power of determining it. -

The opinion of the supreme court of the United States, expressed in the legitimate exercise of its functions, the pronouncing judgments between suitors, affords a legitimate construction of the constitution and laws of the United States, which will command respect and obedience from every tribunal in the nation ; but if its opinion was given not as a judgment, but as the former parliaments of France used to do, par vote da réglement, it would have no binding . authority.

j conclude that I cannot change the opi-n¡on j ^ve formed or expressed in assenting to the decisions I have cited, merely because it has pleased the legislature to express a contrary opinion.

But although the act of the legislature per se, does not seem to me to have any force, yet I must reflect that their view has been that of a great majority of the judges of probates in this state, ever since the operation of the state government; and since the promulgation of the act, many judges have believed it afforded them a legitimate rule of action.

The members of family meetings, being the relations of minors, are generally of the ancient population of the country ; few pf whom understood any language but the French; they would have refused their signatures to a document couched in a language unknown to them. The practice of drawingprocess verbal of their deliberations generally during the ten years, which pre ceded the act ‘of the legislature, has become almost universal during the eight ■years that followed it. A vast number of 1 estates have been settled and adjudicated in this way. 'Property to an immense amount has had innumerable mutations. The state must be thrown into the utmost confusion and disorder, by our considering the process verbal of the deliberations of family meetings, as within the influence of the fifteenth section of the sixth article of the constitution.

And we must adopt the course we pursued in 1815, when we were pressed to declare, that the office of special administrator which had been in operation for eleven years, had no legal existence, in the case of Rogers vs. Buller, 3 id. 665. We then said, “ Till the institution of the present suit, during the whole territorial government, no doubt appears to .have ever existed of the constitutional and legal existence of the office: many estates, since, of great value, have been settled by the special administrator. It would be attended with monstrous inconveniencies, if by declaring now that the office never legally existed, the court was to annul all the transactions of the various incumbents, who have filled it.” We then referred to a similar de-cisión of the supreme court of the United States, in Stuart vs. Laird, 1 Cranch, 309.

II. The family meeting was held before a . „ , ... ... , justice of the peace, and his return like that of a dedimus potestatem, did not require the subscription of any witness.

Under these impressions I deem it my duty to conclude, that we ought not to admit the objection, that the process verbal of the family meeting was written in the French language.

But on the ground I first took, I think the judgment of the court of probates should be reversed, and the judgment made certain, by stating in the judgment, what land is adjudicated, and under what directions, if any.

Mathews, J.

This case offers but one question for solution. It is however of great importance as involving a constitutional in-terpretad or?, which will have a serious effect on many titles to property obtained under the administration and disposal of numerous successions.

The views which I have taken of the subject, brings me to the same conclusion to which the other members of the court have arrived ; ie. that the proceedings of family meetings are not required to be in the Eng-hsh language. Whether in coming to this result, I shall adopt the course of reasoning of either of them, or express myself contented with both or either, is not a matter of importance to the public ; as by this decision the question is to be finally settled, and in such a manner as to relieve the anxiety, afid quiet the fears of many of our fellow citizens, who hold property under titles sanctioned by the proceedings of family meetings in French. I a however of opinion, that the proceedings of a family meeting (which generally takes place out of the presence of the judge, who convokes it,) are not strictly speaking judicial proceedings. I consider them rather as a mode pointed out by law, in pursuance of which a court of probates is to obtain testimony as to the propriety of adjudications to a surviving father or mother, the properly of minors held in common with such saving hand. It is perhaps a mean by which something is substituted for the consent of the co-proprietors, who are of an age which incapacitates them to give any themselves ; considered in other points of view, the deliberations of a family assembly, are not direct judicial proceedings. They are not a peti- . . tion, an answer, or a judgment. 1 hey per-are more analogous to an answer than an^ tjj¡ng ejge jn itnmediate judicial proceedings, but certainly cannot be considered as such. The purpose of an answer is, either to deny or admit the allegations of a petition. In the case of an application made by a surviving father or mother, to have property adjudicated to him or her, which is common between the applicant and minor children; the law makes a denial by presuming that such adjudication would not benefit the minors; and their relations or friends are called on to prove that it would be advantageous, and on this proof the judge orders and decrees. The question is by no means free from doubt, when we consider that the determination of the family meeting is absolutely essential to the adjudication. If the intention of the convention be not clearly expressed by the words of the constitution, if it is to be ascertained by interpretation, I suppose the consideration of public convenience may be legally taken into view, in endeavouring to discover their intention and meaning. The inconvenience to a very large portion of the population of the state, by requiring the pro-eeeding of family meetings to be in English, can not be denied by any one ; nor is it easy to perceive any general benefits which could result from such a requisition. But the words taken in their most extensive signification do not in my opinion include the mere deliberations of the friends of minors, whose property is about to be adjudicated. They make no integral part of the decree of adjudication, although they form the basis on which it is made, like evidence in any other species of suits. They are not necessarily homologated by the decree in such a manner as to become a part of the judgment. In themselves they adjudge nothing ; in this respect they differ from the proceedings of creditors in a con-curso, whose appointment of syndics is identified with the order of homologation.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be affirmed with costs.


text:
      REPPLIER vs. SYNDICS OF GOW.

    If the- wife has no property at the time of her marriage, and until the failure of herself and husband, the goods she attempted to- pledge made part of a stock which was managed by the husband under her name, who acted as owner of it, except in the case of the pledge in which he is named as a third person to hold the goods, which he continued to retail as before, and there is no proof of a separation of property between them, it cannot be concluded that the stock of goods were other than community property. In such a case the husband cannot be considered as a third person holding the property for the pledgee.
    Appeal from the court of the first district.
    The plaintiff claimed to be placed on the bilan of the insolvents as a privileged creditor, by virtue of an act, wherein the wife, one of the insolvents to secure the payment of six thousand dollars, represented herself as a public 1 , . / merchant, and pledged to him a slave and all her stock in trade. In the act it was stipulated that the goods pledged were put and should remain in the possession of the husband as a third person agreed upon by the parties. The act was passed on the twenty-eight of July 1829, and the failure of the husband and Wife took place in November of the same year* The business of the store, buying and selling goods, had been conducted entirely by the husband in the name of his wife prior to the execution of the act of pledge, and he continued in the same manner to transact the business up to the time of the failure. There was no ■evidence that the wife was possessed of any property at the time of her marriage, or that she had subsequently acquired any either by donation or inheritance. The eourt below dismissed the -opposition,, and .the plaintiff appealed.
    Duncan, for appellant.
    The error of the court below is this, that the act of pledge making full faith between the parties to it, and not entered into at a suspicious time is binding on the creditors, and ¡therefore Eepplier is entitled to be placed on .the tableau, as a privileged creditor, for the fall amount of Proceeds of the sale of the goods pledged to him. C. C. art. 3121, 3122, 3123, 3124, and 3125. Martin's Reports, n. s. vol. 5, p. 618.
    Preston, contra.
    This case presents a question of fact, whether the pledgee was put into the possession of the pledge, and the decision of the inferior court should prevail as to the fact of possession. The goods were changed every day as appears by the testimony, and intended to be thus changed from the very nature of the business, being a retail store. All the property pledged was acquired after the marriage, and therefore belonged to the community existing between the. husband and wife, and of which the administration belonged to the husband. C. C. art. 2369, 2371, 2373. He is therefore in the act produced the real pledgor, and by the very act is to remain in the possession of the pledge. But possession by the creditor of the thing pledged is of the essence of the contract of pledge. C. C. art. 3119, 3129. The principle is extended to the antichrisis as well as the pawn. C. C. art. 3146, 3148, 313.1, 3133, 3135, and 3140. As to the necessity of actual possession in the creditor, and this possession must be real, not constructive. 8 Mart. R. 57, 58.
   Mathews, J.

delivered the opinion of the court. In this case the opposing creditor claims a privilege on the estate of the insolvents to the amount of six thousand dollars, alleging, that property to that amount had been pledged to him by Mrs. Gow, who represented herself in the act by which the pledge was made as a publie merchant. He is placed on the bilan as a privileged creditor oniy for one thousand one hundred and ninety-three dollars and twenty-two cents. And made opposition to its homo-logation, which being overruled in the court below, he took the present appeal.

In support of the privilege claimed by the appellant, reliance is had on the notarial act by which a slave and personal property were pledged for the amount claimed.

In opposition to this claim of privilege, it is contended on the part of the syndics

1. That the goods pledged or given in pawn were never delivered to the pledgee ar any third person to be held for him.

2. That the act of pledge was made at a suspicious time, and under fraudulent circumstances.

The evidence of. the case shows, that Mrs. Gow had no property at the time of her marriage; that from the eighteenth of February 1829, until the failure of her and husband in November of the same year, the business relating to the store of goods which she undertook to pledge to the appellant in July, (about three months previous to the cession of property made by the insolvents) was carried on in her name, by the agency of her husband; who seems to have acted in all things relative to this commercial business as owner of the goods, except the single act by which Mrs. Gow entered into the contract of pledge with the present opposing creditor.

By this act her husband was substituted by the consent of the contracting parlies as a third person to hold the property pledged, he continued afterwards to retail the goods of the store in the ordinary mode of doing sueh business. The reeord affords no evidence of a separation of property between Gow and his wife, previous to the time at ■which she assumed the character of a public merchant and sole trader. These facts preclude the possibility of belief, that the capital by which this commerce was carried on was other than the common property of the husband and wife, or perhaps that of the former alone. In either circumstances he cannot be considered as a third person capable of holding it for the creditor to whom the pledge was given, in conformity with the provision of the art. 3129 of the L. C.

If the wife has no property at the time of her marriage, & until the failure of herself and husband, the goods she attempted to pledge made part of a stock which was managed by the husband under her name, who acted as owner of it, except in the case of the pledge in which he is named as a third person to hold the goods, which he continued to retail as before, and there is no proof of a separation of property between them, it cannot be concluded that the stock of goods were other than community property. In such a case the husband cannot be considered as a third person holding the property for the pledgee.

if it was property common as being ac-quests and gains, the husband had a right to administer and dispose of it as his own. Considered as his biens propres the wife had still less right to assume over it the authority of an owner. As we are clearly of opinion that the contract of pledge or pawn, from all the circumstances attending if, gives no privilege of preference to the appellant; it is unnecessary to investigate the other grounds by which his claim would probably be equally defeated.

It is thérefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.


text:
      HUNTER ET AL. vs. LEWIS.

    If he who has a house to build stipulates that the builder will not claim any payment until the house be finished in a workmanlike manner, the material men and laborers, who have claims against the builder, cannot exercise any right against the owner until the builder complies with his contract.
    Appeal from the court of the first district
    The plaintiffs were employed by Tuthill, who contracted with the defendant to put a roof on his, the defendants warehouse. The suit was brought as well against Tuthill as against the defendant, (the owner of the building) for the price of the work. The petition stated, that the defendant was indebted to Tuthill in an amount , sufficient to pay the plaintiffs demand which was claimed by privilege. The defendant plead the general issue.
    The evidence showed, that the entire roof consisting in part of slate, and in part of boards was put on,, but that the part consisting of boards leaked so much as to be unsafe for storage in wet weather. The work done by the plaintiffs which was of slate, was not complained of, and it was in evidence that the defendant was indebted to Tuthill in án amount sufficient to pay the plaintiffs demand. The defendant contended that he was not bound to pay either . , Tuthill or the plaintiffs, until the whole work was finished in a workmanlike manner. Of this opinion was the court below, and gave judgment accordingly. The plaintiffs appealed.

      Dunbar, for appellants. McCaleb, for appellee.
   Martin J.

delivered the opinion of the court The plaintiffs having been employed by Tuthill,to slate the roof of his house, which he had undertaken to build for the defendant, brought suit for his payments against Tuthill, and made the defendant a party, to obtain a privilege on monies which he alleged to be due by him to Tuthill.

The present defendant pleaded the general issue ; that he owed nothing to Tuthill, and notice had been given him by material men, and labourers, that they were unpaid by Tuthill.

Judgment by default against Tuthill. He made a cession of his goods ; placed the plaintiffs on his bilan. They discontinued the suit as to him.

Judgment was finally given for the remaining defendant, and the plaintiffs appealed.

If he who has a house to build stipulates that the builder will not claim any payment until the house be finished in a workmanlike manner, the material men and laborers, who have claims against the builder cannot exercise any right against the owner until the builder complies with his contract.

It appears the district judge was of opinion, that the evidence did not show the defendant was to pay any thing before the work was finished in a workmanlike manner, and neither Tuthill nor the plaintiffs could have any claim till this was effected, which was not yet the case.

It is clear then the case was before him on a question of fact. Several witnesses were heard in court, and it does not appear to us that his decision makes it our duty to interfere.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.


author: Martin, J.

text:
      SACERDOTTE vs. DURALDE.

    The recorder of mortgages must make mention in his certificates of all donations recorded, and he has no discretion to exercise as to the validity or efiect of the acts recorded.
    Appeal from the court of the parish and city of New-Orleans.
    The plaintiff in several instances applied to the defendant recorder of mortgages, for a certificate of mortgage or no mortgage on his property/ The latter always included in the certificate a donation made by a third person to the plaintiff’s children. The petition stated that this form of certificate had operated to the injury of the plaintiff in the sale of his property, and concluded with a prayer for damages, and that the defendant be compelled to alter the form of his certificates. It was admitted that the defendant was recorder of mortgages at the institution of the suit, but had since resigned.
    There was judgment for the defendant, and the plaintiff appealed.

      Canon, for appellant.
    1. The record of mortgages, and the book of donations, are altogether different, and kept in the same office only for the sake of convenience.
    2. The recorder of mortgages must in his certificate relate only what is on the registry of mortgages.
    3. The registry of donations is ordered and made for purposes totally different, and to operate only between the donor and the donee.
    41 The deed of donation in this case can have no effect as a mortgage, because it is a donation of no determinate thing, moveable or immoveable; that no description of the thing given or the amount of its value appears, and that according to the code, nothing can be said ° ° to have been given.
    5_ That this pretended donation is to be tested according to the spirit of the ancient code, being made in 1820.
    6. That the thing given not being within the jurisdiction of our courts, the plaintiff has no means of ascertaining its value, and offering a special mortgage.

      Dennis, for appellee.
    1. The recorder of mortgages is bound, in his certificates, to mention the- mortgages and the donations. Old Code P. 465, art. 56. P. 466, art. 58, 59. New Code, 3355, 3356, 3357.
    2. The plaintiff being tutor to his minor children, the donation in their favour, operates as a lien upon his estate, and must be recorded against him; if he wishes it raised, he should have brought suit against the under tutor of the minors, and not against; the recorder of mortgages.
   Martin, J.

delivered the opinion of the court. The plaintiff complains, that the defendant recorder of mortgages, improperly insists in the certificates, he requires of him a donation made, by a third person to his, the plaintiffs children; whereby he has lost several pieces of real property, the purchasers being deterred, seeing the mention of the donation in the certificates.

There was judgment for the defendant, and the plaintiffs appealed.

His counsel has urged, that

1. The books for the record of mortgage, and that of donations are distinct and different, and are kep| in the same office for the sake of convenience only.

2. The recorder in his certificates, is to mention such mortgages as appear in the registry of mortgages only.

3. The registry of donations, is kept for quite different purposes than that of mortgages, and concern donors and donees only.

4. The deed of donation in the present case, can have no effect as a mortgage, it being no donation of a determinate thing moveable or immoveable; there is no description of the thing given, nor is its value mentioned.

5. We think the parish court did not err.

The donation was made under the Old Code, which required the recorder to record all donations presented to him for that purpose, 464 art 56, and to deliver to any pc. - son, who shall request a certificate of the. mortgage, and donations recorded in his book, and if no such thing exists his certificate shall contain a declaration of it, id. 466 art. 58. The New Code has a similar provision, 3356.

The recorder of make mention in his certificates of ail donations recorded, and he has no discretion to exercise as to the validity oref-fect of the acts recorded.

The recorder must make mention on his certificate, if all donations recorded, he has . . . . no discretion to exercise as to the validity or - , , , effect oí the acts recorded*

-r-< i» . ¡ ti i ii It is therefore ordered, adjudged and de- , , , . - „ . . . creed, that the judgment or the parish court be affirmed with cootó-