text:
    The Second Municipality v. Corning et al.
    Where a defendant admits Ms liaMlity for apart of a claim, and pays that portion into court, for which plaintiffs take judgment, reserving tlieir right to the balance, which is loss than the amount necessary to authorize an appeal, the defendant cannot appeal from a judgment against him for the balance.
    Whenever the constitutionality or legality of a tax imposed by a municipal corporation is in question, an appeal will lie without reference to the amount in dispute; but where tho contest is as to the application and execution of an ordinance imposing such a tax, or the liability of an individual to pay it, the right to an appeal depends on the amount in dispute.
    See. 10 of the ordinance of the general council of New Orleans, approved by tho mayor on the 16th December, 1S46, establishing an uniform rate of taxes, on hawkers, merchants &c., does not authorize the imposition on each partner in a banking house, or firm, making the purchase and sale of bills of exchange its principal business, of the whole amount of the tax, without regard to Ms residence in the State. The tax is imposed on the business, and not upon the individual members of the firm, unless they are permanent residents, or sojourners within the State. The authority of the general council to enact that ordinance depends exclusively on the stat. of 12 January, 1842; and the power of the State itself to lay taxes only extends to persons and property within its jurisdiction.
    from the Third District Court of New Orleans, Kennedy, J.

      JE. T. Parker and W. H. Hunt, for the plaintiffs.

      T. A. Clarke, for the appellant.
   The judgment of the court (Slidell, J. dissenting as to the question of jurisdiction,) was pronounced by

Eustis, C. J.

The defendants, Corning and John Egerton, are sued for the sum of four hundred dollars, under the allegation that the firm of Corning & Co. of which they are members, is liable to the tax imposed by the general council on bankers, or persons buying and selling bills of exchange, as their principal business in New Orleans. The defendants admitted the liability of the partnership to the tax, wrhich was two hundred dollars, and tendered that amount, which was paid into court. The plaintiffs took judgment for that amount, without impairing their rights for the balance, which were expressly reserved in the judgment. A trial was afterwards had to determine the further indebtedness, and the plaintiffs had judgment against the two defendants for one hundred dollars each, and costs; from which the latter have appealed.

The mode of proceeding, by which judgment for the part of a debt acknowledged to be due may be taken, with a reservation of the rights of the plaintiff for the balance claimed, has been sanctioned in several cases. Parsons v. Suarez, 9 La. 413. Small v. Zacharie, 4 Robinson, 145. Skinner v. Dameron, Robinson, 447. But it is obvious that tho judgment for a part of a debt leaves nothing but the remainder in dispute between the parties, and a defendant cannot call in question the judgment which he has confessed. The Code of Practice expressly prohibits an appeal in such a case. Art. 567. The amount in dispute in this suit is, therefore, not sufficient to give this court jurisdiction.

But it is contended that the appeal can be sustained, because the legality of the tax imposed is drawn in question. In the case of the Third Municipality v. Blanc, 1 An. R. p. 386, we held our jurisdiction to he confined to the question of the legality and constitutionality of taxes &c. imposed by municicol-poi-ations; and that, as to then- application and execution, such questions remained exclusively with the ordinary tribunals, this court having jurisdiction on the appeals in cases only in which the amount in dispute vested the jurisdiction. The legality of this tax can, therefore, be examined.

The ordinance imposing it is to this effect: Article 10th. All private bankers, and all persons buying and selling bills of exchange as their principal business, and all persons carrying on both the private banking and exchange business, shall pay a tax of two hundred dollars. This article is not to apply to the ordinary money and exchange brokers comprehended in the 9th article, &c.

The construction contended for by the counsel for the plaintiffs, that each partner in a banking house or firm making the purchase and sale of bills of exchange its principal business, is liable to the whole amount of the tax, without regard to the place of his residence, presents consequences which appear repugnantfto all ideas of justice and sound policy. Many of these establishments axe connected with others in different comm ereial capitals, and have numerous parties in interest in the concerns. A banking partnership would not be on the. same footing with a resident banker, and where the number of partners is great would be subjected to so heavy a tax as to render its doing business in this city impossible.

The construction which the counsel for the defendant puts upon this article of the ordinance is, that it imposes the tax on the business or function, and not upon the individual members of the firm, unless they are present, and we think this construction is strengthened by other articles of the ordinance imposing taxes on theatres, &c. A reference to the statute under which the tax was laid appears to remove every doubt as to its meaning.

The power of the general council to pass the ordinance, it is admitted, depends exclusively on the act of the legislature of the 12th of Jan., 1842, which provides that; “The powers heretofore conferred on the general council of the city of New Orleans shall be so construed, as to authorize them to fix the rate that shall be levied as an annual, or other tax, or license, on and to be paid by all brokers, merchants, traders, wholesale and retail dealers, hotels, boarding houses, theatres, theatrical and other like performances, grog shops, bar rooms, cabarets and all other callings, professions, business, to be collected under the authority of the council of the different municipalities, on such persons vending within their respective limits, and exercising said callings, professions or business, and whether such persons be permanent or transient residents in the said city of New Orleans.”

The authority exercised by the general council in laying taxes is derived from a special grant of power, and there is no warrant for extending this power beyond the objects specified. The acknowledged power of the State itself to lay taxes extends to the persons and property within its jurisdiction. Brown v. The State of Maryland, 12 Wheaton, 441. Civil Code, article 9. We have been referred to no authority shewing that it extends further. The concluding paragraph of the section of the act of 1842 quoted, seems to us to confine the power granted within its just and proper limits, and not to purport to operate upon persons other than permanent residents or sojourners. On general principles, according to the rules by which the by-laws of municipal corporations are always construed, in reference to the mode in which the taxing power has been uniformly exercised in this State, and elsewhere, as we believe, and under the statute by virtue of which the ordinance was enacted, no other construction can be given to She article than that which is in conformity with the fair intendment of the statute itself. Under that construction, which renders residents, whether permanent or transient, to use the very words of the statute, liable to the tax for the business of banking and buying and selling bills of exchange, we find nothing illegal in the ordinance.

In establishing the true construction of the article imposing this tax, we virtually exclude every other, and decide against that which is assumed by the plaintiffs, and which has been recognized by the district court in the judgment against each of the defendants for the amount of the tax. The firm of Corning Sf Co. is established in New Orleans, and both the defendants were engaged in buying .and selling exchange as charged in the petition. Corning resides in New York, and Egerton resides in New Orleans.

The tax we find to be lawful. Corning has been condemned to pay a tax which he did not owe, not that the tax itself was illegally imposed, but because it did not apply to him. The amount is not sufficient to enable this court to take cognizance of the appeal; the only decree we can make is, to dismiss it.

Appeal dismissed.


source: Caselaw Access Project

author: Edstis, C. J.

license: Public Domain

text:
    Forman et al. v. Walker.
    An agent is a competent witness against liis principal, in regard to tlie business of his agency.
    One who purchases a bill of exchange from an agent, duly authorized to draw upon his principal, on shipment to the latter of produce purchased for him, has nothing to do with the limitations fixed by the principal as to the price of the produce, unless proved to have been aware of them.
    Where an agent is authorized to ship to his principal, and to draw on him, “with bill of lading attached,” it is unimportant that the bill of lading be not materially attached or fastened to the bill of exchange. It is sufficient that the bill of exchange be drawn on the shipment, and that the bill of lading be delivered with it to the purchaser of the bill.
    from the Third District Court of New Orleans, Kennedy, J,

      Stockton and Steele, for the plaintiffs.

      Elmore and King, for the appellant.
   The

judgment of the court was pronounced by

Edstis, C. J.

The plaintiffs have sued the defendant, to recover an alleged balance due on three certain bills of exchange, drawn in Cincinnati by John G. Wasson, on the defendant in New Orleans, payable at sight. They were protested on presentment. An arrangement was however made, by which the produce, on which the bills were drawn, was sold in New Orleans by the defendant, the proceeds of which were applied in part payment of the bills.

The allegations on which the liability of the defendant is based, are, that Wasson, the drawer of the bills, was the agent of the defendant, and was employed by him to purchase oats, hay, and horses, in the western country; that he had full power to draw the bills, in order to provide funds for making said purchases; that the petitioners, having confidence in the honesty and good faith of said "Walker, gave to his agent the full value of said bills, the proceeds of which were applied to the objects of said agency, for the defendant, and in accordance with his instructions; that, at the time of selling the said bills of exchange, the «aid agent shipped to the said defendant a large quahtity of oats, which had been paid for with the proceeds of said bills, and transferred to the petitioners the bills of lading, as a security for their payment. The plaintiffs also charge that, throughout the whole business the defendant acted with the intention to defraud them and others; he, the said defendant, being in the habit of paying bills thus drawn, as long as the purchases made on his account turned out to be profitable. The defendant has pleaded the general issue, and charges collusion and combination between the plaintiffs and J. G. Wasson, with the view of defrauding and injuring him. There was judgment in favor of the plaintiffs for the sum of seven hundred and ninety eight dollars twenty five cents, with' legal interest from judicial demand, until paid, and costs of suit. The defendant has appealed.

A bill of exceptions was taken to the admission of the testimony of Wasson, on the ground of interest. No exception was taken to any particular portions of his testimony as inadmissible; and, we think, the court dijl not err in admitting the testimony, under the issues between the parties. He was undoubtedly the agent of the defendant, and upon principle a competent witness.

It appears that the plaintiffs, who are merchants in New Orleans, received from a member of their house, who was at Cincinnati, bills of lading for two shipments of oats, with directions to deliver the bills of lading to the defendant, on his paying one of the bills on which this suit was brought; that afterwards, the plaintiffs received bills of lading for two other shipments, with the same directions with reference to the two other bills, which form a part of the plaintiffs’ present demand. The bills of lading were tendered to the defendant on his payment of the bills of exchange, which were drawn at sight, but which he refused to accept or pay. The bills of exchange were not attached—that is, were not fastened to tho bills of lading when they came to hand, but were received at the same time. The transaction, on the part of the plaintiffs, through their partner in Cincinnati, appears to have been perfectly fair, and according to mercantile usage. The bills of exchange were taken with the bills of lading, as their security, and the equivalent given for them was applied to the benefit of the defendant, in the purchase of produce.

It appears by the correspondence between the defendant and Wasson, that before the purchase of the bills by the plaintiffs, Wasson had drawn several bills on shipments from Cincinnati, in the same manner as these appear to have been drawn. The agency of Wasson was of the most extensive character, for the purchase qf produce of this description, so far as relates to quantity; and, we think, the purchasers of bills had nothing to do with the limitations fixed by the defendant, on the prices to be paid, unless they were apprized of them. For the authority of Wasson to draw these bills, we think the defendant’s letter of March 19th, 1847, is sufficient. The following is an extract: “ Get the twenty thousand bushels you speak of; do not let them go out of your hands; oats and hay, you know, I must have. You can, if necessary, when you ship me oats and horses, draw on me, with'bill of lading attached, at ten days’ sight; and, if you find it necessary, at one day’s sight, for not over $1000 at one time; you might even, if compelled, draw at sight.”

We think there is nothing in the objection taken by the counsel for the defendant, that the bills of exchange were not in conformity with this letter, because the bills of lading were not materially attached to them. It is sufficient, according to the understanding of mercantile men, that the bill of exchange should be drawn on the shipment, and that the bill of lading be delivered with it to the purchaser. It is not pretended that the defendant was not regularly apprized by his agent of the drawing of the bills, and of the shipments against which they were drawn.

The district judge considered this case with great care, and we concur with him in the results of his opinion. It would be against every principle of mercantile law to enable a man, under circumstances like these, after creating a credit in favor of bills drawn by his own agent, and for his own benefit, to throw the loss of his speculations on the bond fide holders. Judgment affirmed.


author: Súdele J.

text:
    Succession of Gremillon.
    Where a debtor, who had executed a mortgage to secure a debt, subsequently executes a mortgage on other property as a further security for the same debt, the last act reciting that the debt for which the original mortgage was given was still due, that the debtor was unable to pay, and that an extension of time had been granted, but without describing the character or site of the property included in the first mortgage, the inscription of the last mortgage will not be equivalent to a re-inscription of the first, which, if not re-inscribed within ten years from the date of the first inscription, will lose its rank. Per Cur. The .Coderequires the inscription to be renewed in the manner in which it was first made.
    The statute of 27 of March, 1835, s. 2, which authorizes married women who have attained the age of twenty-one years, to renounce, by notarial act, with the consent of their husbands, in favor of third persons, their dotal, paraphernal, and other rights, provides that the notary, before receiving the signature of any married woman, shall detail in the act, and verbally explain to her, out of the presence of her husband, the nature of her rights, and of the contract she agrees to; and where such an explanation has not been made to her, the renunciation will be of no effect. A substantial compliance with the proviso is essential to the validity of the renunciation.
    Where a husband purchases real estate at a sale of the succession of his wife’s father, giving his notes for the price, and receiving a conveyance, and, in the partition of the estate among theheirs, the husband’s notes are assigned to the wife as her share, and, after the homologation of the partition, the husband receives the notes from the parish judge, and gives a receipt for them, as his wife’s share, and there is no proof that the notes were ever delivered or paid by him to the wife, nor that she had the separate administration of her property, the wife will be entitled to a legal mortgage on all the property of her husband for the reimbursement of the amount of the notes. And in such a case, the reception of the notes, the circumstances of that reception, and their origin being proved, the burden of proving that they were afterwards given, or paid, by the husband, to the wife, is thrown on the party opposing the mortgage.
    Decision in Johnson v. Pilster, 4 Rob. 71, that the word “same,” in art. 2367 C. C. relates not to the proceeds of the paraphernal property sold, as contemplated by the preceding clause, but to the paraphernal property itself, the law intending to secure the wife, in every case, where the husband disposed of her property for his individual benefit, affirmed.
    Medical services, rendered after the death of a party to slaves belonging to his succession, are privileged, being tor the benefit of the creditors and heirs.
    from the District Court of Pointe Coupee, Farrar, J.
    Cooley, for the opponent, appellant.
    Lacoste, contra,
    contended, 1. That the first mortgage was not legally renewed by the second, the latter not containing any description whatever of the property mentioned in the former, as required by arts. 3273, 3274 C. C. See also Ells v. Sims, 2 Annual 251. Duranton, page 427, no. 369 to 372 C. C. 3333. Shepherd v. Orleans Cotton Press, 2 An. 100. Ibid pp. 520, 768, 799. 2. That, the renunciation, in the act of mortgage of June 29th, 1838, is illegal and null, in this, that it does not appear from the act itself, nor from any evidence dehors the act, that the formalities required by the second section of the act of 1835, p. 153, were complied with. 3. That the hereditary portion of Pauline Joffrion was imputed to the extinguishment of a debt of equal amount due by her husband to the succession of her father, and she is clearly entitled to .a mortgage on his property, to secure the reimbursement of her paraphernal funds, thus converted to her husband’s individual interest. Rowley v. Rowley, 19 L. 574. 4 Rob. 71, 114. 5 Id. 347. 6 Id. 154. 7 Id. 88. 2 An. 824, 918. C. C. 2367.
   The judgment of the court was pronounced by

Súdele J.

The principal controversy in this case is between the wife of the deceased, who has renounced the community, and Poydras, the appellant.

The deceased executed a mortgage in favor of Poydras, in 1834, which was recorded in that year. In 1838, another mortgage of additional property was executed for the same debt. This act recited that the deceased was indebted to Poydras in a capital sum of $6450 95, being the same debt mentioned in the act before the same notary, on the 15th October, 1834, by which a mortgage had been given; and, upon stating the inability of the mortgagor to pay, and that an extension had been granted, he, for additional security, mortgaged other property. His wife intervened in this act, and renounced in favor of the mortgagee. It was recorded in 1838. The act of 1834 was reinscribed in 1845. In 1842, the deceased, as is alleged, became a debtor to his wife for her paraphernal property, received and converted to his own use, and a tacit mortgage was thus acquired in her favor.

The wife contends that the mortgage of 1834 lost its precedence, as against her, by the failure to inscribe it within ten years. Poydras meets this objection by asserting that, the inscription of the act of 1838 was equivalent to a reinscription of the antecedent mortgage, to which its recital referred.

The Code requires that inscriptions must be renewed in the manner in which they were first' made. Without attempting to define the precise formalities to be observed under this provision of the law, it is sufficient to say that, the recording of an other act containing a recital so naked as was presented in the present case, is not a compliance with the law. It was entirely silent as to the character or site of the property mortgaged.

The appellant’s case is not aided by the wife’s renunciation in the act of 1838. The statute of 1835 authorizes married women, who have attained the age of twenty one years, to renounce, by notarial act, with the consent of their husbands, in favor of third persons, their dotal, paraphernal and other rights. But the statute contains the proviso, that the notary public, before receiving the-signature of any married woman, shall detail in the act, and verbally explain to her, out of the presense of her husband, the nature of her rights and of the contract she agrees to. A substantial compliance with the proviso is essential to the-validity of the renunciation. One of its motives was to guard the wife against the influence of the husband, the moral effect of whose presence might control her will, to the prejudice of her interest. This formality was disregarded in tire present case, and the renunciation must be held inoperative.

But it is said the wife has not established a right of legal mortgage, within theintendment of the 2367th article of the Code. That it is only where the husband has received the amount of the paraphernal property alienated by his wife, or otherwise disposed of the same for his individual interest, that the law accords a legal mortgage.

Before considering this point, a brief notice of the facts is necessary. Mrs.. Oremillon was one of the heirs of her father, Joseph Joffrion. At a sale of the* the real estate of her parent, her husband became a purchaser, gave his notes,, and received conveyances. When a judicial partition of Joffrion’s succession was made among his heirs, the husband’s notes were assigned to Mrs. Oremillon as her share. In 1842, after the partition was homologated, Gremillon received these notes from the parish judge, and gave a receipt for them as his wife’s share of the succession. There isno evidence to show that the notes were ever delivered, or paid, to her by her husband, nor that she had the separate administration of her property.

Article 2367 reads thus: “The wife may alienate her paraphernal property with the authorization of her husband, or, in case of refusal or absence of the husband, with the authorization of tire judge; but should it be proved that the husband has received the amount of the paraphernal property thus alienated by his wife, or otherwise disposed of tho same for his individual interest, the wife shall have a legal mortgage on all the property of the husband for the reimbursing of •the same.”

In Johnson v. Pilster, 4 Rob. 71, it was held-that the word “ same ” points, not to the proceeds of the paraphernal property sold, as contemplated in the prior clause, but to the paraphernal property itself; and that the law intended to secure the wife, in every case, where the husband disposed of her property for his individual interest. This interpretation is justified-by the reasoning of the court upon the language of the articie as a whole; apd derives, perhaps, additional force from tire broad terms of the french text—ou en a autrement profits pour son bénéfce particular. See also Compton v. Her Husband, 6, Rob. 157.

Now, in the present case, the husband has become the owner of real estate belonging to the succession of which his wife was an heir; and the price which fell to her share in the succession went into his hands. So that, in point of fact, he has turned her estate to his individual interest.

The appellant concedes that the case would have come within the Code, if the price for which the husband purchased had been cash, and if the husband had paid it to the succession, and then received it again as his wife’s share. Substantially the case is the same, although the husband bought on a credit and gave his notes. The wife’s property is gone, and has been converted to the husband’s use as much in the one case as in the other. It is proper to observe that the husband’s notes took the place of so much real estate of the succession, sold at public sale, and, as we may infer in the absence of contrary evidence, at|its fair value. The reception of the notes by tho husband being proved, and the circumstances of that reception and of their origin, we think the burden was thrown on the opposing creditor to prove that they were afterwards given or paid by the husband to the wife.

As tire wife’s mortgage for paraphernal rights absorbs the proceeds of sale of the real estate of Gremillon’s succession, it is not material to consider her alleged mortgage for dotal claims.

The district judge was satisfied by the evidence, of the justice of Hr, Mayne’s claim; and we do not consider the decree as requiring amendment on that score. A portion of the medical services were rendered to slaves belonging to the succession, after Gremillon’s death. These are properly privileged; the disbursement being for the preservation of the estate, and enuring to the benefit of its creditors. . Judgment affirmed.


author: SmuELii, J. King, J. Rost, J. Eustis, C. J.

text:
    Stanfield v. Tucker, Executor.
    Where a debtor transfers to his creditor the notes of a third person, bearing interest at ten per cent a year, for an amount exceeding his debt, to enable the creditor to pay himself, and the latter, finding on a settlement with the maker of the notes that he was entitled to credits which reduced the sum due below the amount of the notes, but left a balance exceeding the amount due by the transferrer of the notes, takes new notes from such third person, payable to himself, which are admitted to be good, for the whole balance due by him, bearing interest at ten per cent a year, the debtor will be entitled to recover from his creditor, by whom the new notes were taken, the amount by which the new notes exceeded the sum due to the creditor, supposing so much of the new notes to remain unpaid, with interest at ten per cent a year from their date; but in this case, the principal having adopted the novation, the agent must be allowed, if he choose, to give the unpaid new notes in payment' pro tanto. Aliter in case the whole amount of the new notes had been collected, in which case the agent would be liable only for interest at five percent a year on any balance due to the principal, from the time when it was actually collected. The mandate of the creditor was to collect the debt due by such third person, to pay himself out of the proceeds, and to account to his principal for the surplus. He violated the mandate by taking the new notes, and thus novating the debt. In consequence of this violation, the piincipal could either consider his creditor as having made the debt of such third person his own, and claim the surplus from him at once; or, he might adopt the transaction, and treat the notes as acquired for his benefit; and where there is nothing to show that the principal has done any act to deprive himself of the choice, the institution of an action against his debtor to recover the balance due him with interest at ten per cent a year from the date of the new notes, will be considered as an adoption of the novation. Art. 2984 C. C., which declares that “ the attorney is answerable for the interest of any sum of money he has employed for his own use,' from the time he has so employed it, and for that of any sum remaining in his hands, from the day he becomes a defaulter by delaying to pay it over/’ making the agent responsible only for legal interest, must be construed in connection with other principles of the law of agency, which declare that profits made by the agent, whether in the ordinary course of the business of the principal, or by a violation of his duty as agent, should belong to the principal. C. C 2974. \Eustis, C. J. and Rost, J., dissenting.]
    Art. 2984 0. 0. was enacted in the interest of the principal, and not to shield the unfaithful agent; and should be so construed as not to conflict with other rules adopted by the law in favor of the principal, and to secure strict good faith in the agent. [Busiis, C. J. and Rost, J., dissenting.]
    from the District Court of Lafourche Interior, Burke, J.
    S. L. Johnson, for the appellant,
    /. C. Beatty, for the defendant.
    The court being equally divided, the judgment of the lower court, under art. 68 of the constitution, is affirmed.
   SmuELii, J.

Stanfield owed Robinson $10,000. To enable Robinson to pay" himself, Stanfield transfen-ed to him notes of C. Aubert, bearing ten per cent interest, amounting to about $17,000. On a settlement between Robinson and Aubert, it was found that Aubert was entitled to credits which reduced Stan-field’s claim to $13,657 12, for which amount Aubert gave Robinson new notes, payable to Robinson’s order, and bearing ten per cent interest from the date of the settlement, 1st April, 1842, until paid. A portion of these notes has been paid; some are yet unpaid, but are all considered good. The defendant admits that plaintiff is entitled to $3657 12; but contends that Robinson’s estate can only be held to pay five per cent interest, from 1st April, 1842. The plaintiff asserts a right to ten per cent interest..

Under the assignment, it was the duty of Robinson to collect the'debt due by AuberU apply the fund to the payment of his own claim, and account tó Stan-field for the surplus. Robinson was, therefore, a trustee for Stanfield. As such trustee, he stood towards him in the relation of agent to principal; and not the less so because his authority was coupled with an interest. Stanfield could not revoke the authority, without paying Robinson ; but, on the other hand, the latter could do no act inconsistent with the mandate which he had accepted, and the trust with which the fund was clothed. Keeping in view these relations of trustee and agent, the solution of the controversy is free from difficulty.

Robinson’s mandate was to collect the debt from Aubert. He violated this mandate by taking the new notes of Aubert, and thus novating the debt. The right of Stanfield, by reason of this violation, was two fold: He could either consider Robinson as having made the Aubert debt his own, and claim the surplus at once from him; oi’, if he chose, adopt the transaction, and, treat the new notes as acquired for his benefit. There is nothing to show that Stanfield, or his representatives, did any act to deprive them of this choice. The present action, in my opinion, adopts the novation, and claims the benefit of it. I think, he is clearly entitled to it; for it is a benefit made from his own property.

It is true that our Code contains a provision that: “ The attorney is answerable for the interest of any sum of money he has employed to his own use, from the time he has employed it; and for that of any sum remaining in his hands, from the day he becomes a defaulter, by delaying to pay it over.” If the rights of the party are to be controlled exclusively by this article of the Code, it might be beyond our power to allow any thing more than five per cent interest, the legal interest there contemplated. But this article of the Code must be construed in connection with other principles of the law of agency. It was undoubtedly enacted in the interest of the principal, not to shield the unfaithful agent; and should not, therefore, conflict with other rules, adopted by the law in favor of the principal, and for the purpose of securing that strict good faith, which is exacted from him who stands in a situation of confidence with regard to another.

It is a familiar principle of the law of agency that, profits which are made by the agent, in the course of the business of the principal, belong to the latter. When the profits, says Mr. Stray, are made by a violation of duty, it would be obviously unjust to allow the agent to reap the fruits of his own misconduct; and when the profits are made in the ordinary course of the business of the agency, it must be presumed that the parties intended that the principal should have the benefit. Treatise on Agency, § 207. In the same spirit our Code speaks: “ He is bound to restore to his principal whatever he has received by virtue of his procuration, even should he have received it unduly.” C. C. 2974.

It is true that cases might occur, where it would be impossible to ascertain and identify the profits made by the agent, by the use of his principal’s money or other breach of duty; and, from the necessity of the case, the court would then be restricted to the mere allowance of interest. But where there has been such an appropriation of the trust property that it can be clearly and unequivocally identified, the’change which it has undergone in point of form should not be permitted to frustrate the just pursuit of the principal, and put a profit into the pocket of the agent or trustee, at his expense. Bona; fidei hoc congruit, ne de alieno lucrum sentiat.

But for what time are we to allow the ten per cent interest? The debt due by Aubert is the trust fund, which Robinson has had under his administration for the purposes contemplated in the agreement of the parties. This' debt bore ten per cent interest. No part of it was paid before 1845, and a part is still unpaid. Ten per cent has been collected on what was paid; and will be collected on the residue, for the debt is admitted to be good. Robinson had a right to pay himself first, to the amount of $10,000 ; and as the defendant has not thought proper to furnish an account, it does not appear that there was, at the date of the suit, enough realized to leave a surplus after paying Robinson’s claim. It was part of the agent’s duty to render this account, and he must take the consequences of liis silence. As a portion of the Aubert notes is still unpaid, and their amount is not shown, we will consider that amount as equivalent to the plaintiff’s interest in the fund ; and as that fund will be collected, with ten per cent interest from 1842, it is right that the plaintiff should have interest from that date. If it had appeared that the entire fund had been collected by the trustee, before he was put in default, I should probably have allowed ten per cent interest down to the time at which it was actually collected from Aubert, and not more than five per cent thereafter.

As the plaintiff adopts the novation, the defendant must have the privilege of giving the unpaid notes of Aubert in payment, pro tanto, if he thinks proper to do so.

King, J.

I concur in the foregoing opinion read by Mr. Justice Slidell, and adopt the reasons which he has assigned.

Rost, J.

It is stated in the opinion delivered by Mr. Justice Slidell, that Robinson's mandate was, to collect the debt from Aubert; and that he violated this mandate, by taking the new notes of Aubert and others, and novating the debt. That the right of Stanfield, by reason of this violation, was two fold: he could either consider Robinson as having made the Aubert debt his own, and claim the surplus at once from him; or, if he chose, adopt the transaction, and treat the new notes as acqnired for his benefit; that there is nothing to show that Stan-field, or his representatives, ever did any act to deprive them of this choice; and that the present action expressly adopts the novation, and claims the benefit of it.

I concede all this, except that the plaintiff is now claiming the benefit of the novation.

The benefit of a novation, is the immediate liability for the debt, with legal interest.

I admit that it is a familiar principle of the law of agency that, profits which are made by the agent in the execution of the mandate belong to the principal. But the profits claimed were made in violation of the mandate, not in execution of it, and the responsibility of Robinson is to be tested by other rules. After an express denial that Robinson acted as agent in novating the debt, he cannot be held responsible in that capacity.

I am of opinion that the judgment should be reversed, and judgment entered in favor of the plaintiff for the sum claimed, with interest at the rate of five per cent only.

Eustis, C. J.

I concur in the foregoing opinion read by Mr. Justice Rost, and adopt the reasons which he has assigned. Judgment affirmed.

       The judgment below allowed interest at ten per cent a year on the balance due to the plaintiff on the new notes from their date, charging her with the expense of their collection by suit.


author: Etjsms, C. J. Rost, J. Slidell, J. Kino, J.

text:
    Gridley et al. v. Conner.
    A party will not "be permitted to deny what he has solemnly acknowledged in a judicial proceeding.
    One who opposed the seizure of slaves under a judgment, on the ground that they belonged to him, and whose title was, on the trial of the opposition, adjudged to be simulated and fraudulent, having purchased, pending the opposition, a judgment against his pretended vendor, opposed a subsequent seizure of the same slaves under the judgment under which they were first seized, claiming to be paid out of the proceeds of their sale in preference to the plaintiffs. Held: That he must be concluded by his previous claim to the ownership of the slaves on which he now pretends to hold a mortgage. If his claim to the ownership Were true, the judicial mortgage would have been extinguished by confusion. C. C. 3374.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J. In this case, on motion of the counsel for Barrow, it was ordered that the sheriff' retain in his hands the proceeds of the sale of certain slaves made under execution, until the further order of court; and that the plaintiffs show cause why said Barrow, as assignee of Tulane, should not be paid, in preference to the plaintiffs, the balance due on the judgment against Conner in favor of Tulane, and assigned by the latter. The court below discharged the rule.

      Roselius, for the plaintiffs.

      L. Janin and M. Taylor, for the .appellant, Barrow.

    The judges being equally divided in «opinion, the judgment of the lower court is .affirmed, under art. 68 of the constitution.
   Etjsms, C. J.

The plaintiffs seized certain slaves as the property of .the defendant, under an execution. Robert R. Barrow filed a third opposition, claiming to be paid out of the proceeds of the slaves in preference, to the plaintiffs, by virtue of a judgment in favor of Paul Tulane against the defendant, of which he, the said Barrow, alleges himself .to be tire’owner. Barrow had, on a previous occasion, made .an opposition to a seizure made under the same judgment by the plaintiffs of the same slaves, on the ground that they belonged to him.; and this court held his title to them to be simulated, fraudulent and void. The district court decided against the claim of Barrow, and he has appealed.

The appellant, according to his statement of the case, became the owner of the Tulane judgment, on the 31st March, 1848. The first opposition, founded on his pretended title, was then .pending in the district court, and was not adjudicated upon until May following.

There have been presented several objections to the right of the appellant to avail himself of this judgment adversely to the plaintiffs ; the most material is, ¿that he is estopped by his previously asserted claim to the ownership of the ■slaves, on whom he now pretends to hold a mortgage. It is clear that, if his claim to the ownership were true, the judicial mortgage as to the slaves would be extinguished by confusion, for a man cannot hold a mortgage on his own property. Civil Code, 3374. We understand it to be a rule in'the administroiion of justice, that a man shall not be permitted to deny what he has solemnly acknowledged in a judicial proceeding, nor to shift his position at will to a contradictory one, in relation to the subject matter of litigation, in order'to prostrate and defeat the action of the law upon it. Sprigg v. Bank of Mount Pleasant, 10 Peters, 257. Jackson v. Stevens, 16 Johnson R. 110. Jackson v. Murray, Id. 201. Welland Canal Company v. Hathaway, 8 Wendell, 480. Freeman v. Savage et al. 2 Annual, 269.

Rost, J.

I concur in the opinion delivered by the chief justice, -and adopt •the reasons upon which it rests.

Slidell, J.

The previous opposition of the apppellant, in which-he claimed the property as the owner, was made on the 8th June, 1847. He did not acquire, until March, 1848 the judgment, from the recording of «which the general mortgage resulted which he seeks to enforce. I know of no rule of law which compelled him upon acquiring this new and distinct right to set it up at once, in a suit in which he was litigating the question of ownership. Indeed it seems questionable whether he would -have been permitted to amend his first opposition, by setting up the newly acquired right. The objection would have ■been raised that it altered the substance of the demand.

I do not perceive .how the mala fides .of Barrow, in becoming the simulated vendee of Conner, con affect, to his detriment, his subsequently acquired rights as transferree of the mortgage right of Tulane. That Tulane was a band fide judgment creditor of Conner is not disputed. Tulane certainly could maintain this opposition. There is no evidence to impeach the good faith of Barrow, so far as the transfer from Tulane is concerned. Why then has not Barrow the same mortgage lien upon the property which his author, Tulane, had? The good faith of the transferrer inures to the transferree.

It is very true that a man cannot be at the same moment the mortgagee and the owner of land. But it does not follow that the assertion of one right estops the subsequent assertion of the other. A, brings against me a petitory action for a tract of land, and prays my eviction. I defend, alleging title. A succeeds, and evicts me. I then attack A, upon a judgment recorded against him prior to the institution of his petitory action. Am I estopped because I did not set up my mortgage in the former suit, when the title was at issue ? Clearly not. There is no res judicata, and no estoppel.

Reverse this case, and suppose that, in June, 1847, Barrow had filed an opposition alleging himself to be the owner of a judicial mortgage upon the property, and as such entitled to preference over the plaintiff in execution. Suppose that, in 1848, during the pendency of this opposition, he discovers that Tulane held a title as owner paramount to Conner's title, and purchased this title from Tulane. Barrow goes to trial on his first opposition, and is defeated on the ground that his judgment against Conner was fraudulently obtained, upon a pretended claim having no existence. Is Barrow estopped from afterwards setting up his title as owner derived from Tulane ? ' I cannot think so.

Kino, J.

I concur in the opinion read by Mr. Justice Slidell, and adopt the reasons which he has assigned. Judgment affirmed.


author: Shtieli, J.

text:
    McMasters v. Mather.
    An action against the maker of a promissory note will be prescribed by five years from its maturity, though the maker reside during that time in another State, where the holder was aware of the place of his residence.
    An endorsement of a partial payment made on a promissory note, where there was no evidence to show in whose writing it was, nor when it was madé, will not interrupt prescription.
    from the Fourth District Court of New Orleans, Strawbridge, J. This was an action on a note dated and payable in New Orleans.

      Van Balsón, for the appellant.

      Prentiss and Finney, for the defendant.
   The judgment of the court was pronounced by

Shtieli, J.

We think the plea of prescription was properly maintained. See Hatch v. Gilmore, 3 An., 508. Duncan v. Ford. Tyson v. McGill, 15 La. 145. The case of Boyle v. Mann, ante p. 170, is not in point. There the evidence was considered as authorizing the inference of a dishonest purpose, and that the debtor had departed from the United States with the avowed purpose of baffling his creditors. Besides, Mather appears to have lived in Mississippi from the date of the note to a period of five years subsequent to its maturity, and the plaintiff was aware of his residence.

We are also of opinion that the district judge did not err in refusing to consider the note as relieved from prescription, by the endorsement which appeared on it. It matured iu 1841, and on the back was written: “ Received on the within from J. E. Morehouse, eighty-one dollars in gold, December 11th, 1843.” This suit was brought in March, 1848. There was no evidence to show in whose hand writing the endorsement was, nor when it was put there. The case is fully covered by that of Roseboom v, Billington, 17 Johnson, 181.

Judgment affirmed.


author: Eustis, C. J.

text:
    Warnock v. City of Lafayette.
    The power of removing certain municipal officers for negligence or malfeasance, and of declaring their offices vacant and ordering a new election, conferred upon the City Council of 'Lafayette by sec. 11 of the stat. of 29 April, 1846, to be exercised “ by a vote of two thirds of that body,” must be construed as meaning two thirds of that body as legally constituted by the presence of a quorum, and not two thirds of the whole number of members composing the council.
    A PPEAL from the District Court of Jefferson, Clarke, J.

      Elliott and Marks, for the appellant.

      Brewer, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The petition alleges that the plaintiff was duly elected, on the 3d of May, 1847, harbor master for the city of Lafayette, for the term of one year, and that he discharged the duties of the office until the 29th of November, 1847, when he was suspended from office by the mayor and city council of said city; and that, on the 15th day of December, his said office was declared vacant; that, at a new election ordered by said mayor and city council, E. Adams was elected to said office, and has performed the duties since the 30th of December, 1847.

The petition charges that the proceedings of the city council were without any of the formalities of law, and in violation of the acts of the legislature under which the said mayor and council held their authority; that his suspension and removal from office were entirely unwarranted, the vote by which he was removed from office having been by a less number of member's than that required by law for the removal of officers of the coxpox'ation; that thex'e never was a proper notification made of the charges against the plaintiff, nor an opportunity to defend himself afforded to him; that he had always faithfully and honestly dischax'ged the duties of his office, and accounted to the proper officer's for the money received by him by virtue of his office afoi'esaid. The object of this suit is to recover fi'om the defendants, who are the mayor, aldermen, and inhabitants of the city of Lafayette, the fees and emoluments of the office accruing during the year for which he was elected.

The defence is that, the plaintiff was suspended from office, and the office declared vacant, by the city council of Lafayette, in consequence of the plaintiff’s rrralefeasance in office, he having been a defaulter and applied the monies received by him to his own use. The district judge gave judgment in favor of the defendants, and the plaintiff has appealed.

By the act of the 29th of April, 1846, entitled an act to reincorporate the city of Lafayette, the harbor master and certain other officers of the corporation are to be elected annually by the qualified voters of said city. By the 11th section of said act, the city council is empowered to decide upon the election and qualification of their own members, and of the officers^ elected under Jire act; and, in case of gross negligence or malfeasance in office of any officer thus elected, on charges preferred and satisfactorily established, the said city council has the right, by a vote of two thirds of their own body, to declare such office vacant, and to order a new election.

"We are satisfied, from the evidence, that the city council, in suspending the plaintiff, and removing him from office by declaring the office vacant, were not only justified in so doing, but could not have acted otherwise, consistently with their duties to their constituency, and that their proceedings on the charges made were legal and proper. The only objection among those made by the plaintiff to the validity of their proceedings, which we think it material to notice, is that which relates to the number of votes by which the vacancy of the office was declared.

The council is composed of ten members. At the session in question nine members only were present. The votes on the resolution by which the office was declared vacant were, six in favor of, and three against it; thus, two thirds of those present voting to create the vacancy, but not two thirds of the whole number of members constituting the council. By the 11th section, before quoted, the vote required to create a vacancy is two thirds of their own body, which, it is insisted, means two thirds of all the members composing that body. In aid of this construction the counsel for the plaintiff refers to the debates of the late convention which formed the constitution, p. 675. We should infer from those debates that, the terms “ their own body” did not refer necessarily to the whole number of members elected. The debate was upon the removal of the judges by address of three fourths of each house of the general assembly. The terms are not the-same,- and the argument is merely one of analogy. We should rather incline to-the-opinion1 that the vote required to remove was, two thirds of the body as legally constituted by the presence of a quorum. We observe the terms used on similar occasions, in our constitution and our legislation are much more definite, requiring a proportion of the members elected, or of the members present, as the case may be. If the meaning of the terms be doubtful, the french text removes eveiy doubt as to the purpose and intention of the legislature. Breedlove v. Turner, 9 Martin, 353. The corresponding words in french are : li Le conseil aura le droit,”' &c.; and the I6th section of the act provides that the mayor, or, in his absence or inability to act, the president, and a majority of the members elect of said council, shall form a quorum to do business. The vote of the six members was, therefore, sufficient to create the vacancy.

Judgment affirmed.


author: Host, J.

text:
    Succession of Montgomery.
    Where slaves and other-property were conveyed, in another State,- by a deed of trust for the: benefit of a creditor, and a part only of the property conveyed is accounted for, and the creditor is proved to have in his possession some of the slaves so conveyed, besides-having received various sums under the same title, no*portion of his claim can be allowed.
    from the District Court of Madison, Selby, J-
    H. C. Downesr Stacy and Sparrow^ for the appellant.

      Stockton and Steele, for the opponents.
   court was by

Host, J.

This case was before us on a former appeal, and the facts of it are fully stated in the opinion then delivered. 2d Annual, 469. It was remanded for the purpose of correcting the numerous irregularities in the record, with instructions to the court below to require a new account and tableau to be file! by the curator of Montgomery's succession. A new tableau has accordingly been filed, and the opponents on the first tableau have renewed their oppositions. The judgment of the district court sustains them, so far as they resisted the privilege claimed by W. Jenkins for himself and J. Jenkins, except for the amount of $1508 75, which the court ordered to be paid by privilege tinder the deed of trust mentioned in the former opinion of the court. The judgment then distributes the remainder of the fund among the ordinary creditors. The curator has appealed, and the opponents ask that the judgment be amended in their favor.

We are of opinion that there is error in the judgment, so far as it allows a privilege to William Jenkins and the estate of James Jenkins, under the deed of trust, for any portion of their claim. The deceased assigned to Whittington, for their benefit, thirty eight slaves, horses, cattle and moveables; of all this property only twenty four slaves are accounted for, and it is shown that William Jenkins has in his possession some of those slaves and cattle, in addition to various sums of money received by him under the same title. - Claiming equity under the deed of trust, these parties must do equity, and as they have failed to account for the remainder of the property assigned for their benefit, they cannot be heard.

The other questions in the cause are exclusively questions of fact, and appear’ to have been correctly decided in the court below.

The judgment is therefore reversed, and it is ordered that the tableau filed in this case be amended so as to distribute the sum of $5,937 13, now in the hands of the curator, among the creditors of the succession, and in proportion to the amount of their respective claims. It is further ordered that the costs of this appeal be paid by the appellant; the costs of the district court to be paid by the curator.


author: ' Rost, J.

text:
    Purvis et al. v. Harmanson et al.
    The dictum in Jczoell v. Porche, 2 An. 148, that whatever be the name inserted in the certificate of the board of commissioners of the’United States confirming a Spanish grant, the confirmation must inure to the benefit of the real owner,” was said arguendo, and cannot be considered as a precedent. The question was not at issue in that case.
    Decision in Pontalba v. Copland, 3 An. 56, that the Supreme Court of this State must conform its decisions'to those of the Supreme Court of the United States, on questions involving the alienation of the public domain, and the interpretation of treaties and acts of Congress, affirmed.
    Confirmations of claims by boards of commissioners of the United States organized for the adjusting of land titles, confirmed by Congress, in favor of persons claiming by derivative titles, inure to their own use. It would defeat the whole object of the laws creating such boards, and introduce infinite public mischief, to hold that the commissioners were to act only on original claims, and, by confirming the right of the original owner, place the derivative title under him entirely open between adverse claimants.

      No title passed from the crown ior lands in the Spanish province of Louisiana, by the execution of an order to survey and put the applicant in possession. The applicant became the owner of the land only after the real title, completed with all the formalities prescribed by the Spanish regulations, was delivered to him.

      from the District Court of West Feliciana, Stirling, J.

      Ratliff and Cowgill, for the plaintiffs.

      Hudson and Patterson, for the appellant.
   The judgment of the court was pronounced by

' Rost, J.

This is a petitory action, for land situated in that portion of the State which was not taken possession of by the United States till some years after the delivery of the colony of Louisiana, under the treaty of cession. The title of the plaintiffs consists: 1st. of a petition presented by Juan Say to Grandpré, whom he styles governor of Florida, praying for an order of survey, in order that the petitioner may present himself to the competent authority to obtain the grant; 2d, of the order of survey made thereon by Grandpré, on the 24th May, 1806; 3d, of a survey made in conformity with that order ; 4th, of a transfer, by authentic act, from Juan Say to the plaintiffs, bearing date the 15th May, 1817 ; 5th, of a certificate of confirmation of the land in favor of John Maul-den, original claimant Juan Say, under the act of congress of the 8th May, 1822; 6th, of an order of survey, directing the land to be surveyed in strict conformity to the original survey, made in 1806. The defendants’ title is based upon a donation claim in favor of James C. Williams, confirmed by the same act of congress. The judgment of the court below was in favor of the plaintiffs, and the defendants appealed.

The appellants contend that the confirmation to John Maulden operated to his own use; and that, as tire appellees do not pretend to derive title from him, they cannot recover. They rely for this ground of error on several decisions of the Supreme Court of the United States. It is argued by their adversaries that, the confirmation of the United States government is only a relinquishment of the title in tho government, and leaves it as to individuals as it existed before; and that in all cases whore a regular" chain of title is not produced, the title inures to the benefit of the original claimant. Several decisions of our predecessors sustain the position assumed by the appellees. Bradley's heirs v. Calvit, 5 M. 662. Sanchez v. Gonzales, 11 M. 287. Sackett v. Hooper, 3 La. 107.

In the case of Jewell v. Porche, 2 An. 148, we referred to those decisions, and stated that, whatever be the name inserted in the certificate, the confirmation must inure to the benefit of the real owner. That question was not at issue in that case, nor was it necessary to decide it; what we said arguendo cannot be considered as a precedent.

In the case of Pontalba et al. v. Copland et al., 3 An. 86, the same question came before us in another shape; and, after solemn argument, we came to the conclusion that we could not differ from the Supreme Court of the United States on questions involving the alienation of the public domain, and the interpretation of treaties and acts of congress.

In the case of Strother, the Supreme Court of the United States held tire following: “There remains but one other point, on which the court gave their opinion in a former case which was then made by the plaintiff’s counsel in their argument, and has been strongly urged in this case, that the confirmation of the commissioners inured to the plaintiff’s use. The reasons assigned for this position are, that the only object of the acts of congress being to ascertain what property had been acquired by individuals before the cession, the commissioners were to act only on original claims, and, by confirming the right of the original owner, to leave tho derivative right under him entirely open between adverse claimants. The court were before of opinion that this view of the case could Dot be sustained; and we are now of opinion that it is inconsistent with all the acts of congress which have organized boards of commissioners for adjusting land titles, the proceedings of the board, and the laws which have confirmed them. It would defeat the whole object of these laws, and introduce infinite public mischief, were we to decide that the confirmations by the commissioners and congress, made expressly to those who claim by derivative title, did not operate to their own use.” Strother v. Lucas, 12 Peters, 458.

This doctrine is reiterated and affirmed in the cases of Grignon, lessee v. Astor et al, 2 Howard, 344, and of Chouteau v. Eckhart, p. 374 of the same volume. In the case of Marie Nicolle Les Bois v. Samuel Bramel, 4th Howard, 449, the whole subject was reviewed with great care, and we cannot do better than extract that portion of the opinion of the Supreme Court which refers to it:

“It is insisted that the plaintiff had a vested interest to the land confirmed when the United States acquired Louisiana, which is protected by treaty stipulation, and that such right no act of Congress could defeat; that, by the third article of the treaty of 1803 with Frunce, the inhabitants of the ceded territory were to be incorporated into the Union, to be admited to the rights, advantages, and immunities of citizens of the United States, and, in the meantime, they were to be maintained and protected in the free enjoyment of their liberty, properly and religion ; and this implied that, after their admission, they should be equally protected; and that such would have been the measure of justice applicable to their rights of property by the laws of nations, had the treaty been silent on the subject. On this assumption the plaintiff mainly relies. That it is true in the abstract, is not doubted; but it involves several opposing considerations applicable to her title: 1. "Whether such a vested properly in the soil existed in Les Bois, before the date of the treaty, as bound the government of Spain to perfect, by the execution of a complete title, the first insipient step. 2. Whether the judicial power has any jurisdiction to interfere and enforce such right, supposing it to exist.

“That this government had imposed on it the same duty to perfect the title that rested on Spain before the country was ceded, is not open to question; but this was all the United States were bound to perform. How then, did the plaintiff’s claim stand previous to the cession ? Her first decree and order of survey bear date in May, 1802, and the survey was made in August, 1803 ; but there is no evidence that any part of the land was either occupied or cultivated. The lieutenant govornor’s decree is in the usual style, and concludes, “ that it is given to serve the interested parties to obtain the concession aud title in form from the intendant general, to whom alone corresponds, by royal order, the distributing and granting of all classes of the royal domain.

“ On the 22d of October, 1798, the king of Spain appointed Morales intendant general and subdelegate; he kept his office at New Orleans, and he was chrrged with the superintendance and granting of the public domain in the provinces of upper and lower Louisiana, to the conclusion of all other authority.

On July 17th, 1799, Morales published his regulations to the inferior officers and the people of the provinces, so that (in his own language) all persons who wished to obtain lands may Jcnozo in what manner they ought to ask for them, and on what conditions lands can be granted and sold ; that those who are in possession without the necessary titles, may know the steps they ought to take to come to an adjustment; that the commandants and subdelegates of the intendency may be informed of what they ought to observe. 2 White’s Recopilación, 234.

By art. 18, it is declared: Experience proves that, a great number of those who have asked for land think themselves the legal owners of it; those who have obtained the first decree, by which the surveyor is ordered to measure and put them in possession; others after a survey has been made, have neglected to ask the title for the property; and as like abuses, continuing for a longer time, will augment the confusion and disorder which will necessarily result, we declare that no one of those who have obtained said decrees, notwithstanding in virtue of them the survey has taken place, and that they have been put in possession, can be regarded as owners of land until their real titles are delivered, completed with all the formalities before recited.

“ The formalities recited are found in the three preceeding sections, which give precise instructions how the title is to be made out, and where it is to be recorded.

“The whole matter of perfecting the title was referred to the intendant general, and ho, and those acting subordinate to him in this respect, were undoubtedly governed by the intendant’s regulations. As the king’s representative and deputy, he was to judge whether the considerations moving the lieutenant governor were such os warranted the grant; next, whether the conditions had been performed.

“ The grunting power was in a great degree political, and altogether the exercise of royal authority; and, of course, subject to no supervision, but by the same high authority itself. By the treaty, the United States assumed the same exclusive right to deal with tire title in their political and soverign capacity; nor could the courts of justice be permitted to interfere; if they could, and by their decrees complete the title, all power over the subject might have been defeated, not by courts of the Union only, but by the State courts also.”

These decisions are conclusive, and we have acted upon them in the case of Lobdell v. Clark, ante p. 99.

Admitting, for the sake of argument, that the inchoate grant of the plaintiffs was a valid order of. survey, the title to the land did not pass under it: it passed by the conformation alone, and, as was held in Strother's case, the parly in whose name it was made must be considered as the grantee.

The plaintiffs have not made out in themselves such a title as entitles them to recover.

It is therefore ordered, that the judgment in this case be reversed, and that there be judgment in favor of the defendants, with costs in both courts.

       Tile judgment was rendered in accordance with the verdict of a jury.


author:
Eustis, C. J. and Rost, J. Slidell, J.
      Kino, J.

text:
    Ex parte Emanuel et al.
    A suspensive appeal will not lie from an order discharging a prisoner under a habeas corpus, although the imprisonment grew out of proceedings in a civil action.

      [King, J. and Slidell, J. dissenting.]
    EULE on Buchanan, Judge of the Fifth District Court of New Orleans, to show cause why a mandamus should not be issued, commanding him to allow a suspensive appeal from an order discharging, on a habeas corpus, an insolvent debtor, imprisoned under an order made in the course of proceedings instituted against him by his creditors. The judge rejected the application for a suspensive appeal, saying: “I consider it my duly to refuse a suspensive appeal from a judgment discharging a petitioner on a writ of habeas corpus. The Code of Practice, art. 824, says that the petitioner shall be immediately discharged. I have no objection to allow a devolutive appeal, although the decisions of the Supreme Court are contradictory ; and the jurisprudence, as settled by the present bench, seems to be adverse to the allowing of any appeal.” ■

      Benjamin and Micou, for the appellants,
    cited Laveriy v. Buplessis, 3 Mart. 42. Bodge's case, 6 lb. 570. Martin v. Ashcroft, 8 Ib. N. S. 314. Chardon v. Guimblotie, 1 La. 423. Hyde v. Jenkins, 6 La. 436. State v. Judge of Commercial Court, 5 La. 194. Ex parte Lafonta, 2 Rob. 496. Ex parte Mitchell, 1 Ann. 413. Succession of Macarty, 2 Ann. 979. Const, of 1812, art. 4, sec. 3. Const, of 1845, art. 63, 67. Const. U. S., art. 3, sec. 2. Cohen v. Virginia, 6 Wheaton, 392.

      Schmidt and Boselius, contrá.
    The court being equally divided, the judgment below was, under article 68 of the constitution, affirmed.
   Eustis, C. J. and Rost, J.

For the reasons given by the district judge, we are of opinion that the judgment of the court below should be affirmed.

Slidell, J.

Charles Patterson filed, in the Fifth District Court of New Orleans, his petition as an insolvent debtor. Emanuel and others, his creditors, made a charge of fraud, and obtained an order of arrest. The terms of the writ, which followed the order, were that the sheriff should arrest the body of Patterson, and him confine till he shall give bond, with good and sufficient security, in the sum of $20,000, conditioned that he will not leave the limits of the jurisdiction of this court, until after the- surrender of his property shall have been accepted by Iris creditors, or duly homologated, and the property surrendered by him duly delivered. Patterson, being unable to give bail, remained in custody. Subsequently a meeting of his creditors took place,, and their proceedings were homologated. Patterson then presented a petition for a writ of habeas corpus, praying for his discharge, on two grounds. First, That his arrest was illegal, there being no law to authorize the same. Secondly, Because the term of his imprisonment had expired, and the conditions upon which it was to continue had been fully accomplished, because the property by him surrendered had been delivered to his creditors, they had accepted the surrender, and their proceedings had been homologated. Notice of this application, was given to the creditors; and, after a hearing, the district judge rendered the following judgment: The court having taken this case under consideration, considering- that the period fixed by the order of Judge McHenry, acting as judge of this court, on the 24th ult., for the imprisonment of the petitioner, has, by the terms thereof, and by the terms jof art. 233 of the Code of Practice, expired, it is decreed that the petitioner, Charles Patterson, be discharged from custody forthwith. The creditors, whose charge of fraud was still untried, then prayed for a suspensive appeal from the order of discharge, which the court refused; whereupon they applied to this court for a mandamus, to compel the district judge to grant them such appeal. A rule to show cause having been granted, the district judge answered as follows:

“The defendant comes into court, and, with respect, shows, in answer to the rule nisi for a mandamus served upon him in this case ; that this respondent considered it to be his duty, under the provisions of article 824 of the Code of Practice, to refuse a suspensive appeal from the judgment rendered in the matter of Charles Patterson, praying for the writ of habeas corpus: That the writ ot habeas corpus is issued -to a person who detains another in custody, commanding him to bring before the court issuing the writ the body of his prisoner, together with the cause of his detention ; and if, upon examination of the case, on the return of the writ, the court issuing the same be of opinion that the imprisonment cannot legally continue, the prisoner is to be immediately set at liberty-The only issue is, the right of the petitioner to his liberty; and the judgment is carried into effect without delay, either by discharging the prisoner, or by remanding him to prison. Such is respondent’s view of our habeas corpus act, and such has been the uniform practice, for many years, of the court over which, he presides- In the present case, the application of Patterson for a habeas corpus,, was notified to the party who had procured his arrest, according to the requirement of article 821 of the Code of Practice. And that party, the relator in the present case, was present in court upon the trial of the habeas corpus, both personally and by counsel. His counsel was heard in opposition to. the discharge of Patterson, and the judgment was pronounced in his presence. And this respondent hereto annexes as part of this answer, the record of the case of Charles Patterson v. His Creditors, and that of Charles Patterson, praying for the writ of habeas corpus ; and submits himself to the judgment of the court in the premises.”

Some remarles have been, made in argument as to the correctness of the opinion and judgment by which Patterson was set at liberty. This is a subject which is not now before us. Our inquiry is, not whether the judgment is erroneous, but whether the creditors had a right to a suspensive appeal from the judgment. The right of appeal is not dependent upon the correctness or error of the judgment. Until the judgment is before us by appeal, we cannot pronounce it right or wrong.

The question is one of the appellate power and jurisdiction of this court; and for its solution, our first resort must be to the constitution, under which this' court has its Being.

The 63d article' of the constitution decrees that the Supreme Court, except in. cases hereinafter provided, shall have appellate jurisdiction only ; which jurisdiction shall extend to all cases where the matter in dispute shall exceed $300» and to all cases in which the constitutionality or legality of any tax, toll or impost, of any kind or nature soever, shall be in contestation, whatever may be the amount thereof; and likewise to all fines, forfeitures and penalties imposed by municipal corporations; and, in criminal cases, on questions of law alone, whenever the punishment of death, or hard labor, may be inflicted, or when a fino exceeding three hundred dollars is actually imposed.” Art. 67 declares that the Supreme Court, and each of the judges thereof, shall have power to issue writs of habeas, corpus, at the instance of all persons in actual custody under process» in all cases in which they may have appellate jurisdiction.

We will first inquire into the appellate jurisdiction of the court in this case, as controlled by the 63d article, and as though that article stood alone; reserving» for subsequent consideration, the effect of the 67th article upon the grant of jurisdiction antecedently made.

And here the first consideration which presents itself is, the identity of the appellate jurisdiction of this court in civil cases with that of our predecessors under the former constitution adopted in 1812, and under which the State was governed for more than thirty years. The second section of the 4th article of that constitution ordained, that: “ The Supreme Court shall have appellate jurisdiction only, which jurisdiction shall extend to all civil cases where the matter in dispute shall1 exceed the sum of .three hundred dollars.” It is true that, in the present constitution, the word “civil”'is not expressly used; the language of the first clause of the 63d article feeing, “ all cases where the matter to. dispute shall exceed three hundred dollarsbut its insertion would have been surplusage. That civil cases, and none others, were contemplated in that clause, is obvious from the ■subsequent provision with regard to the appellate jurisdiction in criminal cases ; ■a jurisdiction of a' restricted character, and, unlike that conferred in civil cases, limited to “ questions of law alone.”

In copying the constitution of 1812, we are bound, as we said in McKee v. Ellis, 2 Ann. 167, to presume that the convention was aware of the construction which the same grant of jurisdiction had received from the Supreme Court, and intended that, in the new constitution, it should have the same meaning. Si de interpretations legis quroratur in primis inspiciendum est quo jure civitas retro in ejusmodi casibus usa fuisset. What was held, therefore, by our predecessors upon the present question has the authority of precedent; and the force of that authority is certainly much increased, if it be found upon the examination of their decisions, that they are uniform and repeated. See Succession of Macarty, 2 An. 979.

We will proceed therefore to a brief review of the jurisprudence on this sub • ject, as an indispensable duty in the solution of the present question.

The first case to which our attention has been called is Laverty v. Duplessis, decided in 1813. That was an application for a mandamus to the district court, to allow an appeal from an order on a habeas corpus, discharging Laverty. He had been arrested by the marshal of the United States, as an alien enemy, under an order to remove such persons to the interior of the country, the United States being then at war with Great Britain. The court refused the mandamus. But it is obvious, from the tenor of the opinion, and from the construction which the case subsequently received, that the refusal was based upon the ground, that the court had, under the constitution, no criminal appellate jurisdiction, and that the matter involved was one of a criminal nature. See 3 Mart. Reports, 42. The court commences its opinion by declaring that, the case presents two questions for its consideration: 1st. Whether any, and what, criminal appellate jurisdiction is given ; and 2dly, whether, under the constitution or laws, the Supreme Court could exercise a general superintending jurisdiction over inferior courts.

Lodge’s case came before the Supreme Court in 1819. See 6 Martin, 569. He had caused himself to be brought before the District Court, by a writ of habeas corpus. By the return of the jailor it appeared that he was committed on an execution from that court, and admitted to the bounds of the prison, having given bond according to law. The sheriff made oath that the plaintiffs in execution had not advanced the requisite sum, under the statute, for the debtor’s sustenance; whereupon he was discharged, and the plaintiffs in execution appealed. It was contended that no appeal lay from a discharge on a writ of habeas corpus ; that the proceedings were of the most summary kind, and could not be suspended or delayed by an appeal. But the court entertained the appeal, and renewed the decree of discharge.

In Martin v. Ashcroft, 8 Martin N. S. 313, the plaintiff had been arrested under a ca. sa. and was discharged on a habeas corpus, by an order of the judge at chambers, under the provision of the 'Code of Practice. The creditor appealed. The question was distinctly put, whether an appeal would lie to the Supreme Court; and objection was made by the appellee, upon two grounds.: first, that it was taken from a decision on a writ of habeas corpus ; and secondly, that the decree of ‘the judge was not rendered imeourt, but at chambers. Both objections were pronounced insufficient. This cant, said OPortor, Justice, has decided it had not-appellate jurisdiction from the refusal to 'grant a writ,of habeas corpus, and, in a subsequent case, recognized the right of appeal from the discharge under such writ. Laverty’s case—Dodge’s case. These decisions, he continues, are not in the least contradictory. The first was, when the writ had been resorted to in a matter growing out of the administration of penal law. The second, where it was used to obtain a discharge from imprisonment, on a writ issued in a civil action. The refusal to grant the appeal in the one case, and its accordance in the other, did not proceed from the writ, but from the case in which it was resorted to. If, in a criminal prosecution, the court had not jurisdiction, because this tribunal cannot take cognizance ’of such matters; but, if the suit was a civil one, it had, because its jurisdiction in cases of this kind does not at all depend on tire nature and form of the writs, or remedies, which the par- • ties may exercise, but on the fact that the decision is final, or works an irreparable injury, and the amount in dispute is above $300. The circumstance of the decision being given before the judge at chambers, and not in open court, does not, in our opinion, affect the right of appeal. The case commenced by petition to the judge, the proceedings were had under the provisions of the Code of Practice, which contemplate a sunnnuary trial, and from the decision either party had a right to appeal.

After considering the merits, the judgment of the District Court was reversed, and it was ordered that the capias, which was stayed by the decision of the district judge, should be proceeded on according to law, the appellee paying the costs of the appeal.

This opinion seoms ever afterwards to have been regarded as a judicial landmark by the former Supreme Court.

It was clearly affirmed in Chardon v. Guimblotte, 1 La. 421, Judge Martin delivering the opinion of the court. Guimblotte had been held to bail, at the suit of his creditor, Chardon. A rule was taken to set aside the arrest. It was sustained, and the order of arrest was set aside. The plaintiff took a suspensive appeal from that decree. The defendant thus remaining in custody, and the sheriff refusing to discharge him, he applied for a writ of habeas corpus,' was brought before the judge, and the sheriff showing no cause for his detention save the order of arrest which had been set aside, the prisoner was discharged. From this order of discharge the plaintiff prayed an appeal, which was refused, the judge being of opinion that an appeal did not lie from an order of discharge on a habeas corpus. The Supreme Court thought otherwise, and granted a mandamus. As the constitution had provided for appeals in all civil cases in which the matter in dispute exceeded in value the sum of three hundred dollars, they said it was clear that a party has a right to appeal from any decision in such case which works an irreparable injuiy; that if an appeal would lie from a decree made in open court, where the judge has the benefit of counsel, a fortiori it would lie when an order is granted at chambers, ex parte. Such an order might have as fatal a consequence as any other. The defendant, who was in custody upon a claim for $50,000, had been released ex parte; and, if there was no remedy, might instantly remove out of the State, and place himself beyond the reach of his creditors. The court again recognized the distinction between civil and criminal cases.

The same doctrine was affirmed in Hyde v. Jenkins, 6 La. 427; and was again expressly recognized in the State v. Judge of the Commercial Court, 15 La. 194. Still later, in Ex parte Lafonta, the rule was acted upon apparently as a matter of course, the objection not being even raised.

Being therefore of opinion that the grant of appellate jurisdiction in civil cases, under article 63, is substantially the same as was confen-ed upon our predecessors under the former constitution, and that the convention must be considered as contemplating the same judicial construction as had been adopted and followed during thirty years, the main point is this cause, so far as it depends upon article 63, seems to me to be clearly with the relators. To disappoint tire intention of the convention would seem to be, to alter tire constitution, and not to expound it.

But it is always an additional reason, if such were required, for holding fast to rules which have been consecrated by solemn and repeated decisions, if we believe them to recommend themselves not merely by the force of precedents, but by their consonance to justice and truth. 1 feel bound to acknowledge the reasonableness of a rule, which gives a party an appeal from a decree which may irreparably affect his interests; and looking rather to the effect, than to the form of the proceedings, discountenances an evasion of justice.

No one will deny that if Patterson had taken an ordinary rule upon the creditors, to show cause why he should not be discharged, the creditors, if dissatisfied with the decree, would have had the right to be heard on appeal. Reason, as well as the athorilies cited, seems to forbid the debtor to defeat this right, by changing the mere form of the remedy.

What I have said seems to me conclusive upon the right to appeal in such a case. And, if so, the only question left is, whether the party can have that benefit in the devolutive form, or may take a suspensive- appeal.

The reasoning in the cases cited, I think, covers this point. The principle upon which these decisions rest is that, the party has an interest which may be irreparably affected, and that the appellate jurisdiction of the court will be interposed to protect that interest. Why should the protection go half way 1 and why should a creditor, whose right to a suspensive appeal would be indisputable if the debtor had proceeded by an ordinary rule, be stripped of that right because the debtor has chosen another form of remedy ? If the reasons upon which the right of appeal was recognized in the cases cited be sound, we must give creditors the full benefit of them. It would be almost a mockery to say to them, we will inquire whether your debtor was rightfully discharged; but, in the mean while, he shall have the opportunity of placing himself beyond your reach.

It is not my province to question the policy of laws which permit the incarceration of a debtor. Much of the ancient severity has been relaxed in modern times; but the right still exists in a modified form in our statute book, and is mainly aimed at the prevention and punishment of fraud. Those to whom the right is given should be protected in its exercise. It remains only to say whether the .question in this cause is in any wise affected by the 67th article of the constitution.

After a careful consideration I am of opinion that it does not, so lar at least as concerns the present subject, impair the appellate jurisdiction in civil cases which was conferred by article 63. It is an enlarging clause, extending the judicial power of the Supreme Court to cases not embraced by the jurisdiction of the former court, and was not intended to curtail the jurisdiction which the convention, using substantially the tprms of the old constitution, intended to confer upon the present court, in the sense which a long course of judicial -decisions had ascertained.

I think that the mandamus should issuo as prayed for.

Kino, J.

I concur in the foregoing opinion read by Mr. Justice Slidoll, and adopt the reasons he has assigned. Mandamus refused.