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    Delabigarre v. Second Municipality of New Orleans.
    'The true .cause of a contract may be shown by any legal evidence, oral or written, and the evidence adduced for that purpose never can be considered as contradicting the act. C. C. 1888, 1894.
    Corporations will not he held responsible for the errors of their .agents in pleading, or in defending.saits.
    To support the exception «i judicata: the issue in the two actions, as well .as the parties, must be the same. Successors, or ayans-cause of the parties to the .original suit, are considered as having been parties'themselves, where their (titles have been acquired since the institution of the action in which the original judgment was rendered; aliter, if acquired before.
    A vendor does not represent the purchaser, in relation to real rights alienated by him. He has divested himself of them, and cannot dispose ,of, nor compromise, them in any way to the prejudice of the purchaser, by whom, or against whom, oil actions affecting them must be brought. The purchaser is not bound to intervene though he may have knowledge of the proceeding.
    A compromise may be made under the form of an onerous donation; and, in such a case, it will be subject only to the rales applicable to commutative contracts.
    Where an executor compromises a claim of the succession without having been authorized by the court, die heirs alone can take advantage of the omission; and it is incumbent on them to do so when they take the seizin of the succession from the exeutor. Per Cwriam: They cannot he [permitted to receive from him all ,the property .which the compromise had secured to them, and to claim more afterwards on the ground .that he had no authority to make it.
    After twenty years the authority of an agent will he presumed.
    Where a ratification is not express, facts must be established from which it necessarily results.
    The sovereign alone has the right to change the destination of public places.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J. The facts material to a correct understanding of the decision in this case are stated in the opinion infra.

      B, N., and A. N. Ogden, for the plaintiff.
    I. The sale from John Gravier to Peter JDelabigarre, in 1804, of two-thirds of the batture in front of the faubourg St. Mary, embracing the locus in quo, is a valid title to the plaintiff, as the daughter and heir of JDelabigarre, to the one-fourth of the batture she now seeks to recover. II. The title .of John Gravier cannot be controverted by the defendants, because it has, by virtue of the final judgment rendered in his favor against the corporation of New Orleans, the authority of the thing adjudged, in favor of the purchasers from John Gravier, as well as in favor of himself and his heirs. III. The defendants in this suit, having set up title to the property under the plaintiff’s ancestor, are not permitted to attack that title. IV. The title set up by defendants in their answer, being a donation of the property in 1820, executed in their favor by the executor of Delabigarre, and which it is conceded he had no authority to make as executor, the act was in regard to the heirs of Delabigarre an absolute nullity, and not susceptible of being rendered valid by ratification or voluntary execution on the part of the heirs, the law expressly requiring that, as a donation, it should be executed by the heirs themselves in legal form. V. After pleading title under that act as a donation, the defendants cannot be permitted to withdraw the admission, and prove that the act was a compromise ; nor can they be permitted to contradict the act itself, and show, by parol evidence or by presumptions, that it was a different act from what it purports to be. VI. The intrinsic evidence furnished by the act itself, as well as the established facts in regard to .the previous litigation concerning the batture between John Gravier and' the corporation, and the final judgment against them, prove that the act was not a compromise or transaction. VII. If the act was a compromise, the executor was equally without authority to make it, and there is no evidence’ of any ratification or voluntary execution of it by the heirs of Delabigarre: and, as a compromise, in view of the final judgment which had been rendered against the corporation, it was in substance giving away the property without any consideration. VIII. The act relied on by the defendants is essentially a donation inter vivos, and irrevocable, because it purports to transfer, and does transfer, the absolute title to the property; and it is not therefore a dedication to public use, which in its nature does not transfer the title to the soil, but onfy the right to its use as long as required by the public utility — “ the naked fee always remaining in the’ owner of the soii.” IX. If viewed as a dedication' to public use’, it is still conceded that the executor had no right to make it. The act even then was null, without the signature of the heirs of Delabigarre, and, being in' the form of a donation, could not be ratified ; but in whatever light it be viewed, whether susceptible or not of being ratified and confirmed, there is no evidence that it was ever confirmed by the heirs of Delabigarre, nor are any subsequent acts shown on their part from which their assent to it can be even1 inferred as probable, much less be said to have necessarily resulted. X. As to the dedication, independently of the act in question, resulting trora the use which the public have had of the batture, no length of time could give such a right, unless the assent of the owner of the soil was shown, and that assent could not be inferred when the corporation claimed and exercised, under the law, the right of public use, independently of the will of the owner. XI. The municipality are not invested by law with an arbitrary discretion to give or withhold their consent to the front proprietors, to reclaim the batture belonging to them outside of the levée', and when the public interests no longer require the use of the whole; they may be compelled to surrender to the front proprietors all that .portion of it which is no longer needed for public purposes. XII. The evidence furnished by the resolutions of the council of the municipality, and the -plans caused by them to be made, laying the batture out into streets and squares for the purpose of being sold, entitle the plaintiff to a judgment for the possession as well as the title.

      Roselim, for the appellants, contended:
    I. That the’ act of 1820 was a compromise, and not a donation inter vivos. The nature of a contract does not depend on the name which the parties, through ignorance or design, may have given to it. ^A donation inter vivos” says the Code, art.' 1454, “ is an act by which the donor divests himself at present and irrevocably of the thing given, in favor of the’donee who accepts it.” See also Pothier, Donations entre-vifs, s. 3, art. 1. Merlin, Rep. verbo Donation, sec. 1, §T. Here the mayor, aldermen, and inhabitauts of New Orleans are represented in the' contract as the nominal donees; but no title to, or ownership of, any part of the batture was transferred to them — it is converted into a locus publicus. If the contract were a donation, the public, and not the city, would be the donees. No particular form is required for a dedication of pi’operty to public use. See 6 Peters, 431, 498. 10 lb. 662. 6 Vermont R. 355. 7 Harr, part 2, p. 135. 18 La. 286. II. The plaintiff has ratified the act of Lafon, as executei', in making the dedication. 11 La. 286‘. 7 Mart. N. S. 143. Dig-1. 14, tit- 6, sec. 16-, Mei’lin, Qu. de Droit, verbo Compte-Coui’ant, see’. 13. Paillet,- on ai’ticle 1985 of Code Napoléon- III. It is immaterial to enquire whether Oddie had authority to represent the plaintiff in the act of 1820, she having since voluntarily executed that contract. See Code, art. 2252. Code Nap. 1338. Merlin, Qu. de Droit, verbo Minetir, s. 3. Dig. 1. 27, tit. 9’, s. 10, 14. Voet. Com. ad Pand. vol. 2, p. 208. Gluck’s Comm, on the Pandects, vol. 33, p. 72, et seq., s. 1389. Duranton, vol. 13, p. 295, no. 280'. Toullier, vol. 5, p. 203, no. 189. The argument that the omission of Oddie to sign the act is fatal, because it creates a defect of form, rests on the erroneous notion that the contract is a donation. IV. One, in whose name a contract has been made by a person who pretended to be his agent but who was not, must repudiate the contract as soon as he is informed of it, or he will be considered as having ratifled it. Dig. 1. 14, tit. 6, ¶ 16. 7 Mart. N. S. 140. Duranton, vol. 13 nos. 264, 205. Pothier, Mandat, nos. 29. 99. V. The fact of the public having jn undisturbed possession of the locus in quo, without opposition, for more t]lan twenty.five years, is of itself sufficient evidence of a dedication to public use. 6 Peters, 504, 512. Best, on Presumptions of Law and Fact, p. 134, 137. Sbelford’s Eeal Property Acts, p. 55. VI, The claim set up to title to the property, by the resolutions of the Council of the Second Municipalityproposing to sell it, cannot impair the rights of the public to it as a locus publicus. See 6 Peters, 507. VII. The plaintiff has shown no title to the strip of batture described in her petition, even on the hypothesis that she is not bound by the dedication.

      Ii. A. Bullard, on the same side.
    I. The act passed before Lavergne, in 1S20, in form of a donation, but With onerous conditions on the part of the donors, in the nature of a compromise between the actual possessors of the batture and the city of New Orleans, is essentially a dedication to the public use of the property which formed the object of the contract. II. Even considered as a mere donation, it has all the solemnity of form required by law, having been passed before a notary public and two witnesses; and the objection that it is null, because Lafon was not authorized to represent the heirs "of Lclabigarre, does not go to the form of the act, but to the authority of the person assuming to represent the plaintiff'. The objection, in effect, is, that the act wants the consent of the plaintiff1. If the objection were to the solemnity of the act, as, for example, that, being a donation, it was not passed before a notary and two witnesses, I admit that it would be so radically null that it could not be ratified. In such a case the consent Would not be wanting, but that consent would not be given in the form required by law for the validity of a donation. A testament without the solemnities regarded bylaw, is null for Want of form; a testament made by an insane person, in all the rigor of legal solemnities, is void for want of capacity td consent, or make a testament, when the nullity is a radical one, inherent in the nature of the contract itself as illegal and forbidden by law, or When it is not made in the form required by law, it cannot be made good by ratification; but the mere absence of an original consent, by a person authorized to give it, may be supplied by his subsequent consent. There is no evidence that the plaintiff had, at the date of the act of 1826, accepted the succession of her father. The estate was represented by Lafon. as executor, and he signed the act in that capacity. If the heirs, when they entered upon the estate, had Contested the authority of Lafon to bind them, it would have been incumbent on us to show his power as executor, derived from the will; but when the heirs expressly recognize his acts, they admit his original authority. They accept the estate, such as it was after Lafon had closed his administration. III. Plaintiff has executed all the stipulations and engagements contained in thel act of pretended donation, by leaving the Whole property open to public uso* Without opposition, for more than twenty-five years, and by providing for the payment of the sums agreed upon for building a market-house, and has thereby ratified and approved the acts of Lafon,- and is estopped from denying his authority. IV. But it is contended by the plaintiff that, her property is no longer' required for the use of the public, and that she is entitled to recover it and convert it to her oWn Use; and, as evidence of the fact, she relies on the resolutions of the Council of the Second Municipality. Admitting that the accumulation of the' batture beyond the new levée has become too extensive for convenient public; use, it by no means follows that plaintiff is entitled to recover. On the contra-* ry, the Whole being an accretion to the levée, Which is declared by the act to be' a locus publicus, partakes of the character of the principal. The levée is irrevocably dedicated to public use; the grantor retained no' species of interest or title to or in it, and the idea that the plaintiff and her associates retained what they call the fee, and gave only the use, is inconsistent with the whole tenor of the act itself. The sovereign alone has a right to authorize a part to be applied to Other purposes, when no longer required for public use. The act contains no 1'esolutory condition, and no right of reversion. All places dedicated to public Use are placed extra commercium ; they cannot be alienated, nor appropriated to private uses. X)e Armas y. Mayor, ifr., 5 La. 132. The whole of the alluvion in front of New Levée street, has been formed since 1820. The ground on which the new levée stands, having been devoted to public use, without reservation, and constituting as it did, and does to this day, the bank of the river, the new formation became a part of the levée, and constituted a locus piiblicus equally with the levée itself. '
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action. The plaintiff, as heir and sole representative of Pierre Delabigarre, claims the undivided fourth of a portion of the alluvion in front of faubourg St. Mary, which was a source of fierce litigation, sometimes threatening the public peace, from the change of government to the date of the contract entered into, between the parties in possession of it at the time and the city of New Orleans, on the 20th of September, 1820. She avers that her father acquired his title, on the 20th of March, 1804, from Jean Gravier, who held under a regular chain of conveyances from the original grantee; and that, by subsequent arrangements with the late Edward Livingston, who owned the other three undived fourths, the land now claimed has been ever since held in common between them. She finally alleges that Municipality No. Two is in possession, and claims title. She prays that the heirs of Livingston be made parties to these proceedings, that Municipality ■ No. Two be cited, and that she may have judgment for the undivided fourth part of the batture claimed. She farther prays for a partition against the heirs of Livingston, for a writ of possession, and for general relief.

The widow and heir of Livingston answered that, they decline taking any part in the litigation now pending between the plaintiff and defendants, and protest against having their rights precluded by this litigation ; but they say that if the court should order a partition to take place as prayed for by the plaintiff', they have no objection that said partition, in that event, should be made on the basis and in the proportions alleged by the plaintiff to be the true basis for such partition.

The other defendants filed a general denial, and opposed to the plaintiff the contract of the 20th of September, 1820, signed by B. Lafon, executor of Pierre Delabigarre, by which it is alleged that the entire batture in front of faubourg St. Mary was given, ceded, and conveyed to the city of New Orleans. In a supplemental answer, the defendants set up an exclusive title in themselves to all the batture.

The Third Municipality here intervened opposing the pretensions of all parties, for the purpose of preserving its legal rights under the contract of 1820, apd the act of division of 1836.

The plaintiff afterwards filed a supplemental petition, alleging the nullity of the contract of 1820, on the ground of want of authority in the executor to make it. This petition farther alleges that the original petition erroneously states that the portion of the batture therein described was, at the lime of .the death of her father, held in common and undivided between him and Edward Livingston, and that in fact the said Livingston only acquired his title on the 3d of May, 1819, from the heirs of Bertrand Gravier. The plaintiff farther alleges that, in 1807 or 1808, the title under which she claims was finally adjudicated upon in favor of Jean Gravier by the Superior Court of the Territory of Orleans, in a suit in which the said Jean Gravier was plaintiff, and the Mayor, Aldermen, &c. of the city of New Orleans were defendants; which judgment it is alleged remains in full force, and cannot.now be questioned by any of the Municipalities.

In their answer to the supplemental petition, the defendants generally deny the allegations therein contained, and further answering aver that the act referred to in the supplemental petition, although called a donation, was in reality an act of compromise, entered into between- the riparian proprietors and' the corporation of New Orleans, for the purpose of settling the conflicting claims to the batture or alluvion, set' up by the parties respectively. That said compromise is bindingonthe-praintifiVhavingbeen frequently recognized and ratified By her since its date; that the piece of ground claimed in the petition is a public place, over which the respondents'have the right of administration.

On these'issues, the parties Went to trial. There was a judgment in favor of the plaintiff on the question of title, and the defendants took a devolutive appeal. A rule was-subsequently taken by the plaintiff Upon the' defendants to show cause why she should not immediately be put in possession of her portion of the batture, which according to the plan made by the surveyor of the Municipality, and the unanimous opinion of the City Council as expressed in one of their ordinances, is no longer wanted for public purposes. This rule was discharged, and the plaintiff appealed'.

A great portion of the argument of the counsel on both sides, has been directed to the investigation of the nature of the'contract of the 20th of September, 1820; the plaintiff insisting that it was in fact, what it purports to be, a pure and simple donation inter vivos, null for want of form as well as for want of authority in Barlhüemy Lafon, and not susseptible of ratification ; the defendants maintaining that it was a final compromise of all the difficulties that had existed till'then in relation to the batture, which the executor may have been judicially authorized to make Before the' acceptance of the succession by the heirs, and which, if he was not so authorized, the plaintiff 'has since voluntarily executed, and"otherwise-ratified in various Ways.

It is necessary to a proper understanding of this act to state' the principal clauses which it contains. The parties of the first part, as actual possessors of the batture, to favor the public, as they allege, in the use of the banks of the river adjoining the batture, and to facililate the communication of the streets which should extend to it, make an irrevocable donation inter vivos to the city of New Orleans, represented by the Mayor, acting on that occasion under the special authorization given to him by the City Council, a copy of which was annexed to the act. The donation includes : 1st. All that portion of the alluvion outside of the line of the new levée previously established. 2d. The new levée itself, and the soil'upon which it was- erected, in the condition in which the whole would be found after the levée had been repaired, augmented, and' a palisade made in front of it by the donors. 3d. The soil necessary for the prolongation of all the streets of the faubourg to the new levée. 4th. So much soil as was necessary to give to Tchoupitoulas street, a Breadth of sixty feet through faubourg' St. Mary.

This donation was made on the express condition, without which it would not have taken place, that all. the lands i't conveys shall remain ultra commereium; that no buildings shall ever be erected upon them; and that they shall not be applied to any other public uses but those to which they are naturally destined. The act goes on to say, that, in consideration of the donation, and of the advantages which may result therefrom, to all parties, the donors farther bind themselves towards the city: 1st. To repair and increase the levée mentioned in the act, so as to make if sixty feet at top-, and' to place palisades in front of it. 2d. To make and fill up at their own expense,all the streets between Tchoupitoulas street and the new levée, and to make .platforms at the ends next to the river. 3d. To destroy at their own expense all the buildings then existing on the 'batture, and to remove the materials within a delay of thirty days. 4th. To construct at their own expense the buildings necessary for a public market to be erected in .faubourg St. Mary, for .the erection of «which they .tax themselves $10 for «every front foot of land they possess >in the -rear «of the new levée, and give their motes secured by mortgage to the corporation for their respective shares. The corporation-receive the notes, and, in «case the amount be more than sufficient to -erect «the St. Mary’s market, -they bind themselves to apply the residue in the-ereotion of another market house in faubourg Marigny. The front of the Jots belonging to the legal representatives .of Pierre Pelabigarre, is stated to be ninety-four feet, and Barihélemy Lafon, as «executor, gives his notes at one and two years for $940, according to the terms of the.contract.

Nemo facile presumitur donare, is a sound rule in the interpretation of contracts, and .before parties, who had been.at open«war.with the«city authorilies.for fifteen years, can.be considered.as having gratuiousLy come forward, tnade«aidonationto it from pure considerations-of love and .affection, and imposed heavy charges «and contributions upon themselves as a consideration for their liberality, courts of -justice will pause and try -to discover-whether this was the real cause; for a contract is not the less valid, though the cause be not expressed, and if the cause expressed should be one that does not exist, yet the contract cannot be invalidated, if the party can-show the existence-of-a true and-sufficient consideration. -C. C. 1888, 1894. It is the necessary consequence of those provisions of -law, that the true cause may be shown by any legal evidence, oral or written, «and .that.the evideneeadduced for that purpose never can.be.considered as contradicting the act.

The judge of .the first instance held -the real cause to be a concession of right to power, an abandonment of a part of -the property by the donors, for the purpose of being permitted to enjoy the remainder. The plaintiff’s counsel have relieved the legislation of those times from that imputation. They have shown that, in 1813, the -legislature had provided-the mode in which levées might be advanced, when the alluvions in front -of them became susceptible of private ownership, and «they have referred us-to decisions of the late Supreme Court made under that-law, in which it was held that the-discretion, -vested in police juries and city councils to determine when levées should be advanced, was a sound discretion, into the exercise of which-courts of justice might enquire. In the case of Henderson el al. v. The Mayor of New Orleans et al., in which a similar question was presented, the court held that, if the jury-decided that the levée should be advanced, the city authorities-could not refuse the permission, because the owner would not.surrender -part of the property to the public, or burthen it with servitudes to which other lands are not subjeot. 5 La, 420. Taking this to have been the-law in 1820, the donors might at any time have invoked its protection; and the powers of the city government-could not -have been arbitrarily exercised .to their detriment. We must, therefore, ascertain whether, as alleged by the defendants’ counsel, there -were at the time dangers of eviction, troubles, or disturbances, from which .the contract of 1820 relieved the parties in possession.

It is said, on behalf of .the plaintiff, that there was not, because the judgment in Gravier’s case formed res judicata between the plaintiff and the defendants. One of the .essential requisites .to maintain the exception rei judicata is, utsit cadem causa pelendi. The city, in Gravier’s case, did not set up title to the batture, but claimed it exclusively as a locuspublicus, under a dedication by Gravier, and the use of the public ever since the establishment offaubourg St. Mary. The plea nbw made presupposes the issue to be the same *n ^1'13 su’*” ^ waives, therefore, the exception in .the brief, that the defendants, having set .up title in themselves, are bound by that plea, and cannot change the nature ,of their defence. In .conformity with the views expressed in the case of Millaudon v. The First Municipality of New Orleans, 1 Annual Rep. 215, we would not., in .any ,cas.e of -which we have the contro], be disposed to hold the .corporators responsible for the errors .of their agents in pleading.or in defending suits; but here the very gr.o.und assumed by the plaintiff waives an informality which might as well perhaps not have been alleged, as the plaintiff herself'had .committed .errors in her pleadings which she rectified in the supplemental petition.

Another essential condition to maintain .the exception .of the thing adjudged is that, the parties b.e .the same in both suits. Successors to, or ayans cause of, the parties in the original suit ar.e .considered in Jaw as having been parties themselves, provided always that they have acquired .their title after the institution of the suit in which the original judgment was rendered. If the title was acquired .before, .the exception rei judicata will not.avail. Po.thier, Oblig. nos. 9.01-9.04.

The vendor does not represent ,the purchaser in relation to the real rights alienated. He has diy.ested himself of .them, and cannot dispose of them, nor compromit them, in .any manner to the prejudice of the purchaser, by whom, or against whom, .all actions affecting them must be brought. The purchaser is not bound to intervene, although he may have knowledge of the proceedings. Merlin, .Quest, de Droit, verbo .Chose Jugée,§ 2.

Gravier in this .case had parted with his title to Felabigarre three years before .the institution of the suit, and no privity having been shown between them in the suit, Gravier was without capacity to stand in judgment. The concealment of the title of Felabigarre was ,a fraud which could neither benefit nor injure him. 'Moreover, only a small portion of the land which Gravier had sold .belonged to him; the remainder was afterwards adjudged by a decree .of court to the foreign heirs of Bertram Gravier., from whom it was purchased by Mr. Livingston, in 1,819. • Nobody will pretend that the judgment formed the thing adjudged in fav.or of those heirs; and accordingly we find that, after the judgment had been final ten yeai;s, they sold without warranty of any kind to Mr. Livingston, who .acknowledged in the deed .that he was fully aware of the dangers of eviction which existed, .and that he purchased at his peril and risk. He had the management of the interests of Felabigarre, and seems to have treated them precisely as his own. He was fully aware that, in relation to .both, .the question .of .title remained open; and if, after the organization of the State government, .a new suit had been instituted to test its validity, we are not prepared to say that, under the principles regulating dedications to public use .as they .are now understood, the evidence in Gravier's .case would not have authorized .a judgment in favor of the public.

Again, the main question of fact upon which the case .of Gmvicr turned was that, at the time of the establishment of faubourg S.t. Mary a batture .susceptible of private .ownership existed .on the whole line .of the levee. Now, in 1819, just before Mr. Livingston’s purchase, it was held by the late Supreme Court in the case of Morgan v. Livings,ton, that .there was no bntture susceptible of private ownership at .that time in front of .a considerable portion of the Jevée. Whoever peruses the testimony in that .case will find it difficult not to .give it faith. If that testimony was '.true., that in Gravier’s .case was false; and had the judgment been rendered between proper parties, the city had tweny years, under the laws then in force, to set it aside on that ground, by an action of nullity. Part. 3, tit. 26, laws 1, 2.

These were the dangers of eviction, troubles, and disturbances to which Mr. Livingston had reference in his purchase from the heirs of Bertrand Gravier, and which induced him to acknowledge, in 1819, that his title was defective, and to cancel on that ground the sale of two batture lots made by him the year previous to Vincent Nolté. -He must have been deeply impressed with the necessity of making such a transaction in relation to the whole matter, as the city would accept and the legislature ratify ; for, wherever the public is concerned, the State is not without interest. In order to succeed, it was necessary not to expose the weakness of the title; hence the great anxiety of Mr. Livingston to abandon to the city all beyond a certain line, provided they would accept it in the form of a donation ; hence all those bland entreaties for peace and good neighborhood which, after years of perseverance, finally accomplished his object. The acceptance by the corporation of a portion of the batture from the possessors, as a gift, virtually acknowledged their title to the remainder, and prevented the law-suits which they feared. It was unquestionably the real cause of the contract, and as the contract itself was such as to satisfy in a great measure the wants and wishes of the city, it became the apparent interest of all parties to have it recognized by the legislature. It was represented to that branch of the government as a final compromise, ratified by them as such, and kept in full force after the division of the city, by an express provision of the act of 1836. This ratification has rendered the title of the possessors to the portion they retained perfect; and the policy of the attempt now made to show that the act was not a compromise, which if successful would do away with it and reinstate the public in its original rights to the whole batture, is extremely doubtful. Prescription does not run against public places and things out of commerce.

The contract of 1.820 was a compromise made under the form of an onerous donation, and subject only to the rules applicable to commutative contracts. C. C. 1513. It is no more a real donation than an act would be by which one .of the parties made an irrevocable donation inter vivos of an immovable to the other party, who, in return, made to him a similar donation of the price. It will not be contended that a contract of that kind could be avoided by the subsequent birth of children to the donor, nor on account of the ingratitude of the donee. Compromises may assume any form,and simple obligations to do or to give may be shown, by other evidence, to be the consideration of them. Troplong, Transactions, no. 34.

This compromise was one entire contract, the conditions of which had been prescribed by a resolution of the City Council annexed to it; and all the obliga" tions it imposed ¡on the possessors of the batture were the consideration of the implied recognition of their title to the portion retained. It contained stipulations not unlike those familiar dispositions of property, by which the naked property is given to one and the usufruct to another. No right .of reversion was stipulated under any contingency, and, as long as the compromise stands, the donors cannot resume the title.

The counsel for the plaintiff contend that, admitting the contract of 1820 to he a compromise, it was not signed by the heirs of Lelahigarre, and his executor had no authority to make it. It is not shown that the heirs of Delabigarre Jaad accepted his succession at the time. That succession was then under the exclusive administration of the executor, and he might, ou a proper showing, have been authorized by the court to compromise. Whether he obtained the authorization does not appear. If he did not, the heirs of Lelabigarre alone could take advantage ef the emission, and it was incumbent upon them to have done so when they took the seizin of the succession from the executor. They cannot'be permitted to reeeiye from him all the property whieh the compromise had secured to them, and to claim more afterwards on tire ground that he had no authority to make it.

Within a few weeks of the .date of the act, steps were taken to set apart five batture lots, as the share of the heirs of Lelabigarre ; and the partition between them and Mr. Livingston was completed .on the 8th April, 1822. The plan annexed to the act shows the lines of the levée and the .prolongation of the streets .as fixed by the compromise, and the lots are described by reference to those lines and streets. On the same day the heirs of Lelabigarre sold to Mr. Livingston two of those five lots, and in the sale reference js had to the same plan. Part of the consideration of this sale consists in the sum of $940, the amount of the two promissory notes subscribed by B. Lafon, as executor of Lelabigarre, to the order of Joseph Ronfgnac, mayor of the city of New Orleans, as appears by the act .of the 20th of September, 1820, whieh notes the said Edward Livingston promises and .obligates himself to pay in the discharge of the vendáis; and also of the sum of $839, being the .amountadvanced by John W. Oddie, agent of the vendors, for making the levée contemplated by the compromise.

It is objected that there is no proof of the authority of Oddie to represent the heirs of Lelabigarre in these acts. After twenty years the authority of an agent is presumed, and twenty-three years elapsed .after the execution of the acts before this objection was made. Bedford v. Urquhart, 8 La. 248. Bourguignon v. Boudousquié, 6 Martin N. S. 153.

But it is not necessary to resort to that presumption in this case. The plaintiff divided the three remaining'lots into six, and sold them with reference to the plan under which they had been acquired. The acts of sale state that the property sold was acquired in part by the plaintiff from her sister, and in part by an act of partition between Edward Livingston and the heirs of Lelabigarre, of whom the plaintiff is one, passed before JFTugues Lavergne, late notary public in this city, on the 8th day of April, 1822, the very act in which John W. Oddie appeared as agent of the heirs of Lelabigarre. The plaintilfhas never claimed, and does not claim in this suit, the lots transferred to Mr. Livingston by that act; and she is estopped by her own declaration from questioning the authority of the agent who represented her therein.

It is true, as decided in the case of Rivas’ heirs v. Bernard, 13 La. 159, that where a ratification is not express, facts must be established from which it necessarily results. But viewing, as wo do, the compromise of 1820 as one entire contract, the acts of the plaintiff cannot be accounted for without a ratification of it. She has made the acts of B. Lafon and John W. Oddie her own, by executing voluntarily, more than twenty yearsbefore the institution of this suit, all the contracts they made for her and her sister, and she now stands as if she had herself signed the compromise. If it is not aII binding upon her, no part of it is binding, and she may claim the ground given for the prolongation of the streets and for widening Tchoupitoulas street, as well as the batture.

It is further urged that, admitting the batture to have been dedicated to public use., the defendants are only entitled to that use as'long as it is compatible With the public interest; and that as they have passed a resolution ordering a portion of said batture to be sold,- on the ground that,- the batture from its great width had become useless as a public landing, that it was injurious to the public

welfare, and caused great inconvenienee and expense to commerce, and that the portion ordered to be sold was no longer required for public use, the plaintiff has the right to resume the possession of that portion.

The sovereign alone has the right to change the destination of public places. Under the state of facts presented by the record, the attempt of the defendants to change the destination of the ground was a glaring usurpation of power, from which no legal effects eould result. It is proper to state that this attempt was not persevered in. •

It is therefore deereed that the judgment of the District Court be reversed ; and it is further decreed that the act of compromise of the 20th September, 1820, before Hugues Laver gne, notary, in the pleadings referred to, and whereof a copy is on file in this cause, be maintained, and have its full effect against the plaintiff; and that the petition of the plaintiff be dismissed, with costs in both courts.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Delabigarre v. The Second Municipality of New Orleans.
    APPEAL, by the plaintiffs, from a judgment of the Fifth District Court of New Orleans, Buchanan, L

      B. N., and A. N. Ogden, for the appellant.

      Roselius and H. A. Bullard, for the defendants.
   Rost, J.

For the reasens assigned in the case betweeu the same parties just determined, it is ordered that the judgment discharging the rule taken by the plaintiff upon the defendants in this case, be affirmed, with costs.


author: Eustis, C. J.

text:
    Macarty et al v. Mandeville.
    Under the Spanish taw one having neither ascendants nor descendants Was under no indapacity to dispose of his property by donation in favor of a concubine. By the Code of ISOS, hook 3, tit. 2, art. 10, persons living in open concubinage were declared incapable of making to each other any universal donation, or under an universal title, inter vivos or mortis causa. The prohibition to make any donation of immovables, or any donation of moveables exceeding one-tenth part of the whole value of the donor’s estate, unless in case of a subsequent marriage, was introduced by the Code of 1825, art. 1468.
    The prohibition by law of donations of a particular character implies the right to make those not within the prohibition.
    Where the facts of a ease present a double aspect, one of which represents- a contract which the law authorizes, and the other one prohibited by law, the contract must be sustained.
    APPEAL from ther Second District Court of New Orleans, Canon, J.

      'Da. vigneaud, for the appellants.

      L. Janin and Soutéi for the defendant.
   The judgment of the court was pronqünced by

Eustis, C. J.

This case arises under article 1468 of the Code, which provides that those who live together in open concubinage are respectively incapable of making to each other, whether inter vivos or causa mortis any donation of immovables, and if they make a donation of moveables it cannot exceed one-tenth part of the whole value of their estate. Those who afterwards marry are excepted from this rule. The plaintiffs are the collateral heirs of the late Eugene Macarty, who died in this city on the 25th of October, 1845. They allege that among the property left by the deceased, which has not been inventoried, was the sum of $111,200, deposited in the Bank of Louisiana in the name of the defendant, and withdrawn by her on the 2d of October, 1845, a further sum of $11,000, paid by the deceased from his own money to Lamothe, and a slave Henry. Several other slaves, and lots and houses in the city of New Orleans are also claimed as forming a part of the succession of the deceased, and are alleged to be illegally in the possession of the defendant, who was the concubine of the deceased. For the recovery of those this suit is instituted. The judge of the Second District Court of New Orleans, before whom this cause was tried, considered that the plaintiffs had not satisfactorily made out their case and dismissed their petition, and they have appealed. In the examination of the voluminous mass of testimony we have been very much aided by the well prepared briefs of the counsel, which have directed our attention to the real points at issue between the parties, the difficulties of which are equally serious and embarrassing.

The deceased, from the year 1796 until his death, lived in concubinage with the defendant, who is a person of color. She is in the possession of a fortune which, taking the estimate of her counsel, exceeds the sum of $155,000. The property left by the deceased, according to a declaration in his will, which was made eighteen days before his death, that it was all his property, amounted to about $12,000. The defence is that all the property in the possession of the defendant belongs exclusively to her, and has been honestly acquii'ed, and is the result of her industry and economy during half a century; and it has been undertaken to account for this large accumulation by legal evidence, and also to give the causes of the modicity of the fortune of the deceased at the period of his death. It is obvious that this attempt involves the histories of both their lives, their habits, their pursuits, as well as their pecuniary means. The plaintiffs have not attempted to deny that the defendant has been une femme extremement laborieuse et économe. It appears that she had, in all respects, rendered her condition as reputable and as useful as it could be made. Five children have been the fruits of her connexion with the deceased. They were all well educated. Two of the sons are in business in this city, and one is living on his income. The daughters were married and established in Cuba; one of them is since deceased, leaving two children. The state in which she lived was the nearest approach to marriage which the law recognized, and in the days in which their union commenced it imposed serious moral obligations. It received the consent of her family, which was one of the most distinguished in Louisiana, and nothing appears to have occurred to forfeit or to diminish their approbation and good will.

She received, in 1799, a tract of land of three acres front and forty in depth on each side of the bayou of Terre aux Bceufs, and we think it is clear that her family gave her money, the amount of which, at this distance of time, it is impossible to ascertain. There is no difficulty whatever in accounting for the capital requisite to commence her business of a retailer, which she after-wards followed. The defendant Was for several years engaged in the dry goods business in this city. She purchased from the importers, and retailed her goods by her slaves and persons who sold for her. She was intelligent, industrious and skilful]. Her business wras extensive and lucrative, and her credit undoubted. She had a dépot in the parish of Plaquemines, and her trade extended as far as Donaldsville and even to Attakapas. A few extracts from the testimony of witnesses, whose means of knowing and character cannot be drawn in question, will give a proper idea of her position and resources in the way of her trade.

Duncan Kennedy, witness for the defendant, sworn, says he has been a merchant for more than forty years in this city, from 1806; he was formerly a partner of the firm of Kennedy Sj- Duchamp. "Witness was a merchant here fourteen years previous to becoming a partner of Duchamp. Witness was in the dry goods line. Witness sold the defendant a great many goods in 1806, 1807, 1808, and 1809, and has very often had transactions with defendant; and subsequent to that, witness has sold many goods to defendant. Witness says that, in 1811, 1812, and 1813, the dry goods business was very lucrative. Witness brought goods down the river during the war, and realised a good profit. The business of retailing dry goods, such as the defendant followed at that time, was also very lucrative. She bought many goods, and sent persons about the streets retailing. Witness saw the defendant when she came to his store to buy, and she always brought the money to pay; this is all the acquaintance he bad with her. Witness considered the defendant remarkably industrious, and she was considered so by all persons in the place. Cross examined : Witness says that it is so long since, that he cannot tell when he last examined the account of defendant on his books ; that defendant was very industrious and honest, and had credit; she could get any thing she wanted. She could have obtained from $15,000 to $20,000 worth of goods on credit from witness, as he considered her honest and industrious. Witness still does business here. After witness’ dissolution with Duchamp, he formed the copartnership of Kennedy, Durel & Co. Mr. Durel’s name is Michel Valcour Durel. Witness was not at all acquainted with Eugene Maearty ; knew nothing at all about him.”

William Debuys, witness for defendant, says he has known defendant since 1816 or 1817. When he knew her first, she enjoyed great credit and passed for a rich woman. Witness was a.young man at .that time, and was salesman in a commission house — the house of Peter Laidlaw 8f Co., and witness was directed to let the defendant have all goods which she wanted. The house was a wholesale house, and only sold by packages and boxes, and defendant purchased by wholesale. Witness has known defendant engaged in the dry goods business up to late years. She did considerable business — the retailing business, at the time witness was clerk, produced profits. Cross examined : Witness says that defendant purchased largely, but cannot say to what amount; and the witness had been instructed by the house that, whenever they received invoices of fresh goods to make out a copy of the same and send it to the defendant, which he did, and defendant generally purchased on those invoices 8 or 10 packages at a time, which she divided among other marchandes in lots. Witness knew Eugene Maearty by sight. Witness knew him by reputation, as'a shaver. Witness always heard that Maearty had nothing; and when witness was a bank director, he has seen notes put in for discount, drawrn by Maearty, for $400, refused.”

“Micliel' V. Durel: Witness' has known-defendant since- 1809. In 1811, witness was-employed as clerk at Vincent Nolie's. He knows that defendant bought considerable goods. At that time the business was profitable then, and is so still, when-the persons- know how- to purchase and sell at retail. Witness knows a person who set up-a. small retail store, who withdrew from business with $80,000; more or less.- The Pauchons-, Tibliers, Valles, &¡c., have made large fortunes by the same meansi

Witness says-that,-in 1817, he was clerk to Currell, Ure, Donald Sf Co., and that he left there in 1823; that; at that time, defendant purchased largely from that house in partnership with Mrs. Durel and-others, which goods they divided amongst them and sold at retail, Defendant had an unlimited credit with the house; her account there was-a heavy one. Witness means that the amount of goods purchased by defendant at the end-of the year was a heavy amount. That, about 1823, witness went into the- house of- Dennistoun Sf Hill, and remained there untibabout 1826-; they also sold goods to defendant, but defendant did not purchase from-them so heavily, as she did from the former house. She had at that'-time made money, and her business began to flag. Witness says that at thafttime Aurore Miuiin-, Agate Fauckon, Mrs. Peuch, Mrs. Du-r-elr- and some few others sold as extensively as the defendant. Mrs. Peuch left for France with-a handsome fortune, which she made by it; and they have all made fortunes,-some larger than others, by this commerce.”

That the- defendant realized large profits from her business, we think the evidence fully- authorizes us in believing-. It is proved that she afterwards employed her means in-disoountingmotes, in which she was aided by the experience of Macarty, who transacted all- business relating to the investment of her money. Since 1825, the notes discounted uniformly bore her signature, in bank large sums of money were deposited in- her name, and the property claimed by the plaintiffs appears to us to be in the bond fide possession of the defendant and exclusively so, without any established connection with the interests of the deceased. That the deceased bestowed time and labor upon the increase of the defendant’s fortune is conceded, and that she derived great benefit from his aptitude and skilbin usury,-is indisputable ; but his right to do as he has done, the defendant insists cannot be drawn in question by the plaintiffs.

This is the explanation given of- the origin and accumulation of the fortune of the defendant. The weight of evidence in support of it is, we think, conclusive ; that is, we think that, from the economical and orderly habits, the good judgment andjthrift, which, without any contradiction all the witnesses allow the defendant exercised — from the length of time these qualities have been in operation in one single direction, from her opportunities and acknowledged means, the amount, even supposing it to be what the plaintiffs’ insist it is, is not so large as to authorize us in assuming that any portion did not honestly and legally belong to her.

On the other hand plaintiffs contend that, ever since 1825, and up to the year 1845, Eugene Macarty has transferred his whole fortune to the defendant by loaning on mortgage, by depositing his funds under her name in bank, and that his object in having them in her name up to the time of his death was to defraud his heirs at law of their rights secured under the Code; that all these deposits, loans and transfers are in fact nothing more than disguised donations, and voidable as such.

It appears that, during the time when her trade was the most lucrative and when she must have made a large portion of her property, her name did not appear in any'bank as a depositary or bolder of .notes, and we infer that "her funds -were in the ¡name of the deceased. That any portion of the funds in his name belonged to her at this time is denied by .the plaintiffs, but .it-is asserted that their ¡affairs ¡were separate .and ¡distinct, .and «that the defendant only owned the property whieh then stood in .her name. iBut.we «think the weight«of evidence is-against this position. There is nothing -.-before «us showing any settle«ment of accounts between the parties, ,nor the state of them; .and what was the share of each in the money or funds held by the deceased, or by'.the defendant, probably was and must for «ever be a secret of which they themselves -were the sole depositaries, and concerning which we.can follow no .other ¡guide-than.the evidence -which has been submitted ¡to -us.

As far back as 1807 .the plaintiffs contend thatthe means «of the deceased amounted in-value to upwards of $20,000,-and they .estimate it as increasing up to 1824. But it must be borne in mind that there .istnothing ¡before us on ¡which we can interfere ¡with.any,dispositions he may have-made of his money under the laws which were then in-force, .and-the .larger his-means were the greater was the probability of his liberality -towards the deceased. This fact of .the extent of his fortune at that time strengthens, rather than impairs, the defendant’s case, by furnishing an additional reason for accounting for her present .fortune.

Under ¡the Spanish law, the deceased, having neither ascendants nor descendants, was .under no incapacity-to dispose-of his .property .by donation in favor of the defendant. By ¡the Code of 1808, book 3,.title 2, art. 10, p. 210, persons who lived together in open concubinage were declared incapable of making to each ot her any universal donation, or under an universal title, inter vivos or causd mortis. We have not been able .to .find any other restriction in the disposition of property imposed .on persons living in that condition. From the examination we have-been able to give the subject we are .satisfied none other .exists. The prohibition of donations of a particular character implies.the right to make those not within the prohibition. Partida S, tit. 7, laws 2 and 12. Ibid, tit. 8, law 2. Commentary of Gregorio Lopez on those .laws. Institutes of the law of Spain, tit. 3, Jib. 2, p. 11,7.

When we consider .the basis on which this defence rests it is.obvious that, io order to assail .it successfully, the .evidence itself must be impungned or weakened by proper and sufficient .proofs. Doubts may exist, conjectures may be raised, which it is difficult to .explain ; hut such is the necessary consequence of the state of things between these parties, and the time to which the matters to be enquired into extend. The defendant has .not .been placed by the plaintiff’s evidence in a situation in which she is called upon to explain every transaction of her long life.

We held, in the case of The Bank of Louisiana v. Briscoe, that where the facts of the case presented a double aspect, one of which represented a contract which the law authorizes, and the other within a- prohibition, the contract "would be sustained. Ante p. 157. The principle is applicable to a certain extent to the facts of the present case, and to the conclusions of law deducible from them, inasmuch as there is no positive proof of any intent to violate the law, the plaintiffs inferring that intent from the- facts themselves.

It is contended, on behalf of the defendant, and we think with justice, that there was nothing in the relation of those parties which prevented the deceased from giving the defendant the benefit of his aptitude and judgment in the loaning of money and the discounting of notes, in which it is.conceded the deceased was a proficient; nor do we consider it as furnishing by itself, any well ground ed cause for. suspicion. To whom else was it natural for the defendant to apply, f°r *e management of her business and the investment of her money 1 It appears that the notes discounted by the deceased were always put in the actual possession of the defendant, and that when paid they uniformly bore her signature. The discounts were made by the deceased, not under the mask of a power of attorney, bdt as they would have been made had he been investing his own money or that of others entrusted to him, and the ownership was only-disclosed by the signature of the defendant in whose name they were deposited in bank for collection. We can perceive no disguise nor indirection in these transactions, which appear precisely as they would in any fair bond fide business of the kind; nor do we find any thing, which weakens or renders untenable this defence, in the bank accounts, which for several years are before us : on the contrary they confirm it. The mortgage transactions we think are of the same character.

But what became of the fortune of the deceased ?• This question it is assumed that the defendant is bound to answer, and that she must be held to explain the modicity of its amount, and to account for its almost total disappearance. It seems to us, when the advanced age of these parties is taken into view, and the status or condition, the education and position of the children of the deceased are considered, that the tendency of his affections and the claims of his children would render them much more probable recipients of the bounty of their father than the defendant, who it is conceded was provided for by her own means. Judging from these causes, which press themselves upon our consideration from their own intrinsic weight, we perceive no reason which renders it probable that the defendant enjoyed the bounty of the deceased to their detriment. But the deceased was owner of a coffee plantation in the island of Cuba, whieh turned out to be a ruinous concern. Two of his children were established there, and remittances are proved to hare been made to them, at different times, from 1822 to 1841, amounting to upwards of $30,000. And supposing that the deceased bore the expenses of his own household, and of the education and establishment of his own children, and the right to do this we do not understand to be drawn in question, the smallness of his means at the time of his death is fairly accounted for, without the aid of the hypothesis of spoliation on the part of the defendant.

The counsel for the plaintiffs, who argued this case in writing, and the argument is very complete, attaches great importance to the declarations of the deceased as to the extent of his fortune. The declarations made at different times, as proved by the witnesses, aré contradictory and inconsistent, and we attach consequently no weight to them.

We agree with the district judge who tried this cause, who heard the numerous witnesses who were examined, and had an opportunity of testing the credibility of each and of forming an accurate opinion of the complexion of the cause, that the plaintiffs have not made out their ease. On the contrary, from a careful consideration of the evidence we think the weight of it is decidedly with the defence, and that it would not be reasonable to require, under the circumstances, that the defendant should prove more than she has done, considering the remoteness of the origin and length of continuance of the matters involved in this suit. We must let matters stand as the deceased has thought best to leave them. From what is before us, we do not feel ourselves at liberty to declare that the last twenty years of his long, life has been a continued cheat, and that he closed it with a falsehood on his lips.

We are not insensible to the appeal made to us in this case, in the interest of morals, religion and social order; and we hav.e, on a recent occasion, reversed the verdict of a jury, vindicated the rights of heirs and restored'to them a large estate, which a party had attempted to deprive them of by an indirect donation to a concubine. See the case of Cole v. Lucas, 2 An. R. 946. At the same time that we are bound to give effect to our laws made in the interest of families, it would be an abuse to bring them in conflict with the right of property, under which the defendant claims the subject of the present suit. She bases her defence on that right, and we find no warrant in the law or evidence for disturbing her in the enjoyment of the .fruits of the labor and thrift of a long life. Judgment affirmed.


author: Slidell, J.

text:
    Ducournau et al. v. Levistones.
    Where, through the neglect of an attorney, the record of appeal is not filed, nor any appli. cation for further time made, within three judicial days after the return day, the party cannot be relieved. The statute of 20 March, 1839, s. 19, was intended to relieve appellants, in certain cases, from the neglect of persons not in law representing them, such as clerks and sheriffs ; but the fault of the attorney must be deemed to be the fault of the client.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Buisson, for the plaintiffs.

      Collens, for the-appellant.
   The judgment of the court was pronounced by

Slidell, J.

The appeal in this case was returnable on the fourth monday of January, 1848. The transcript not being "seasonably filed, the clerk of this court, after the expiration of the legal delay, gave the usual certificate of non-filing as authorized by the 589th article of the Code of Practice, and, on its production in the court below, execution was awarded on the judgment. The appellant now asks a rule to show cause why an injunction should not be granted to suspend the execution and be relieved from the omission to file the transcript, upon the ground, as exhibited by his affidavit, that his attorney and counsel, who was charged with the appeal, died suddenly on the 7th January last; that, after the appellant had obtained, through said attorney, an order of appeal and had given bond, he made enquiry of his attorney to know if he had brought up the record of appeal, and was answered by his said counsel in the affirmative, saying it was all right and safe"; that some days after the attorney’s d eath, he employed another attorney to argue the cause before this court, -at the same time informing him, in accordance with the statements of the former attorney, that the transcript had been filed : that upon the said attorney’s application to the clerk of this court, on the 2d February last,. the appellant learned for the first time the omission to file the transcript.

Te attorney being dead, we have no means of knowing whether he was misunderstood by his client or not; we must therefore take the case to be as stated by the client, that is to say, that the attorney told him the transcript had been filed. The omission then to file, is attributable to the fault of the attorney in making an erroneous statement to the client.

The question then is, whether, conceding the power of this court to grant ■relief when the three judicial days after the return day have expired without an application for further time, upon which point we express no opinion, we can relievo a party from the effects .of .an omission attributable to the fault of his attorney ?

We are of opinion that we cannot give such relief. The precedent would be dangerous, and would tend to throw the business of this court into extreme confusion. The statute of 1839 contemplates the relief of an appellant in certain cases from the negligence of persons not in law representing him, such as clerks .and sheriffs. When a client has entrusted his appeal to his attorney, and the attorney fails in his duty, the consequences of such failure cannot be visited upon .the appellee. The fault of .the .attorney mustie deemed the fault of the .client. Rule r-efused.


author: Eustis, C. J-

text:
    Drew v. Chambliss.
    Where-a sheriff, by whom a plantation had been seized.under writs in his hands, is, by consent of all concerned, made the factor of the estate, and in that,capacity ships the crop, receives the proceeds, makes disbursements, and has the general supervision and control of the property, the allowance of an item in his account of two and a half per cent commissions on the amount of cash which came into Ills hands for receiving and disbursing, is not in .conflict with art. .71,of the constitution.
    APPEAL fromthe District Court of Carroll, Copley, J.

      Short, Parham and Drew, for the plaintiff,
    cited C. C. 2948 etseq_. C. P- 283, 657. 14 La. 63. 10 Rob. 147.

      Stacy and Sparmw, for the appellant.
    The appellant reli es on .art. 71 of the constitution of 1846, in asking the reversal of this judgment. “No court or judge, shall make any allowance by way of fee or compensation in any suit or proceeedings, except for the payment of such fees to the ministerial officers as may be established by law.” The judge has not ordered the payment of the costs of suit and of fees allowed 'by law, but hechas fixed the sum of $447 as a compensation for the sheriff’s services in disbursing die revenue, &c. Are these “fees established by law ?” We are not able to find any thing of the kind in the fee bill.
    The position taken by the plaintiff’s counsel, is, that the allowance made in this cause comes within the exception in this article of the constitution. This cannot be. The judge has been asked to fix, and he has fixed, by a judgment, the amount we should pay the sheriff for disbursing the revenues &e. of the property in his hands. Why call on the judge to fix the amount, if it was already fixed by law 2 Can a fee be said to be established or fixed by law, when it is in the discretion of the judge to say how much it shall be ? He also invokes article 2949 of the Civil Code, which provides “ that the obligation of the party that has seized the property consists in paying the guardian his legal fees ;u and article 283 of the Code of Practice which says, “ that the sheriff may confide the property sequestered to the care of guardians or overseers, for whose acts he remains responsible; and that he will be entitled to receive a just compensation for his administration to be determined by the court, to be paid to him out of the proceeds of the property sequestered, if judgment be given in favor of the sheriff.” These provisions of law, and the decisions on them, were enacted or given before the adoption of the constitution of 1846. That the article we have referred to in that constitution was introduced and accepted by the Convention expressly for the purpose of taking away this dangerous discretion of permitting judges to make allowances to officers of court, or of ordering the payment to them of any fees other than those established bylaw, there can be no doubt. It was intended “to deprive (to use the language of a delegate now on this bench,) the judges of every species of patronage.” Debates on Constitution, p. 768. It is argued that the fee in this case “is established by law, yet the precise amount is not fixed.” What is the meaning of the word — established? Webster defines it: “ To set or fix firmly or unalterably.” Can a fee be said to be “ fixed firmly or unalterably,” when its amount is left to the discretion of the judge ?
    But is this fee or allowance established by law? The last general act in relation to the fees of officers, was approved 10th of March. 1845. It provided that sheriffs should be “ entitled to demand and receive the following fees of office, and no more." Acts of 1845', p. 53. The only item in that fee bill which can be regarded as supporting in the most remote degree the plaintiff’s demand, is in these words; “ For keeping personal property and slaves on attachment, under seizure, or otherwise legally in the hands of the sheriff, at the discretion of the court, provided that the charge for keeping each slave shall not exceed twenty-five cents per day, when in actual custody.-” There is nothing squinting at an allowance for disbursing money &c. It was intended that the sheriff should be allowed a fair price for keeping slaves or other property, whether he maintain them himself or employ others to do it. In this case he kept the slaves himself, but, as will be seen by referring to his account, he has charged the amount of the physician’s bill for attending to them in their sickness, for the provisions they consumed, and for the services of the overseer or guardian. In a word, we are called upon to pay, and we do not resist the payment of, every dollar of expense he incurred in supporting, keeping, and administering this property. But this is not all: we are condemned to pay the sheriff “for the care in keeping and responsibility of $202,500 worth of property,” and “for receiving, disbursing and responsibility of $17,901 54”. These are the foundations of the charges for which judgment has been given. What was “ the care in keeping and responsibility” ? All the sheriff had'to do was to employ a proper person to manage the property, ship the crops, and order the supplies from New Orleans. This done, no responsibility could attach to him. All the law could require of him would be the care that a prudent man would take of his own property. His duty would be discharged when he placed a proper person in charge of the plantation. It cannot be expected that the sheriff could personally superintend the management of every plantation that comes into his hands by seizure, sequestration, or attachment. He must act through agents, and the parties are responsible for any reasonable price he may have to pay them.
    If the sheriff is to be paid for the responsibility he incurs in administering property, may he not also claim compensation for all other responsibilities he may have to assume in the discharge of his various duties, and call on witnesses to fix their value. The result assuredly would be that, the allowances made by the courts to the sheriffs would far exceed all the fees given to them and fixed by the fee-bill.
   The judgment of the court was pronounced by

Eustis, C. J-

The plaintiff, as sheriff of the parish of Carroll, had for several months a plantation and slaves in his custody under two writs, one of sequestration and the other of seizure and sale; and we infer from what is before us, that he was, by consent of all concerned, made its factor. He shipped the crop, received the proceeds, made disbursm-ents, and had the general supervision and control of the property.

The district judge gave judgment in his favor, for a commission of two and a half per cent. We do not consider this to he an allowance by the judge in conflict with the 71st article of the constitution, but an action to recover this commission for receiving and disbursing the revenues of the plantation under an implied contract to pay for them, in which, under the admissions made, the plaintiffs must recover. . Judgment affirmed.


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    Downes v. Tarkington, Sheriff, et al.
    A copy of a reeord of proceedings in a court of this State, authenticated by the seal of the court, and certified by a deputy clerk, is sufficiently attested. The deputy is an officer known to the law. C. P. 782.

      A PPEAL from the District Court of Madison, Selby, J.

      J. J. Amonett, for th® aPPeMant>
    cited C. P. 782. 10 Martin, 148. 15 La. 38.

      Thomas and Snyder, for the defendants,
    relied on 19 La. 542.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff obtained an injunction against an order of seizure and sale, which was granted on the application of the executrix of the late James Armor, on the ground that she had no mortgage on the property seized. The district judge awarded damages to the executrix, defendant, in dissolving the injunction, and the plaintiff has appealed.

The plaintiff claimed to hold the property under a sheriff’s sale frée from mortgage, and offered in evidence the record and proceedings of the suit under which he became'the purchaser, which was not admitted by the judge on the ground that it was not duly certified, it being signed by a deputy clerk only. The copy of the record was under the seal of the court, and signed and certified by an officer known to the law — the deputy clerk of the Court of the Fifth District of New Orleans; and we think the judge erred in refusing to receive the same in evidence. C. P. 782. Bank of Louisiana v. Watson, 15 La. 40. The deputy clerk of this court certifies copies of its records under the seal of the court, in conformity with the provision of the Code of Practice, and we believe the invariable usage under it.

The judgment of the District Court is therefore reversed, and the case remanded for further proceedings; the appellees paying the costs of this appeal.


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    Gillespie et al. v. Cammack et al.
    The drawer of a bill is not entitled to notice of non-payment by tbe acceptors, where the acceptance was for bis accommodation, and he bad undertaken to send funds to them with which to pay it, and failed to do so.
    To constitute legal fraud, in case of a preference given by an insolvent to one creditor over another, so as to affect tbe preferred creditor, it must appear that the creditor, as well as tbe debtor, was not in good faith, that be knew of the insolvency of tbe debtor, and contemplated the securing to himself of an advantage over tbe other creditors.
    Tbe action to annul a contract on tbe mere grounds of tbe preference given to one creditor of an insolvent over another, is prescribed by one year. C. C. 1082.
    Where certain mortgage creditors of an insolvent sue to annul a judgment rendered on the confession of tbe debtor, and recorded anterior*to the date of their mortgage, on tbe allegation that tbe confession was a contract in fraud of tbe other creditors, the action must be brought within the timo prescribed by art. 1982 of tbe Civil Code. Tbe rule Quce tempo? ralia, &c. is inapplicable to this case, it is limited to cases where tbe defendants who set it up as an exception are in possession of tbe thing, or in tbe enjoyment of tbe liberty which tbe contract offered to them is intended to restrain. Here tbe judgment creditor was in possession of a mortgage right dating from the time of its registry.
    Where a register of mortgages is shown to have kept but one book for the inscription of conventional and judicial mortgages, tbe fact that a judicial mortgage was not recorded in a separate volume of judicial mortgages will not be allowed to prejudice tbe judgment creditor. Pc?' Curiam •* As there was but one book kept, third persons could not be misled.
    Where, at tbe date of a bill, a statute was in force allowing damages at ten per cent in case of protest, tbe right to damages at that rate must be considered as part of tbe contract. A subsequent statute reducing the late, though in force at the time of suit, cannot affect tbe right of the creditor to damages at tbe rate fixed by the statute in force at the date of tbe contract.

      One who purchases property, or acquires a mortgage on it, pending a litigation in relation to it, though for a valuable consideration, and without any express or implied notice in point of fact, will he bound hy any decision that may be made against the person from whcm he acquired his title or mortgage.
    APPEAL from the District Court of Concordia, Farrar, J.

      Stacy and Sparrow, for the appellants.

      Lockett and Micou, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

This case presents a controversy between the plaintiffs and defendants, with regard to the distribution of the proceeds of a judicial sale of certain lands and slaves. Cammack Sf Co. (who act in this case for the use of Stetson Sf Avery, their transferrees,) obtained a judgment, in April, 1839, in Concordia, against Watson, which was recorded in June, 1840. In May, 1841, they instituted an action against Watson and Walker, alleging that a sale of the lands and slaves, of which the fund in controversy is the representative, made in December, 1837, by Watson to Walker, was fraudulent and simulated. In this suit Cammack Sf Co. were successful. They obtained a verdict and judgment in 1845, which was sustained upon appeal by this court. By this judgment the sale was decreed null, and the property declared to be subject to be seized and sold in satisfaction of Cammack Sf Co's, judgment. See Cammack v. Watson, 1 Annual R. 134. In 1842, Walker granted a mortgage upon the land and slaves in favor of Roberts, the agent of certain trustees of the Bank of the United States, to secure certain notes then executed by Walker, but of which the consideration was an antecedent liability. The Planters Bank of Mississippi obtained judgments against Watson in Concordia, which were recorded in September, 1840, and. February, 1841. The dates of registry and of rendition of these judgments were posterior to the rendition and registry of the judgment in favor of Cammack Sf Co. The Planters Bank also brought a similar suit to annul the sale by Watson to Walker, commencing their action in April, 1841. They also alleged the simulation of that sale. There was a verdict for the defendants, in December, 1841. Upon appeal to the Supreme Court the judgment was reversed and the sale avoided; are-hearing however was granted, and, while it was pending, the parties made a compromise, and by agreement the suit was dismissed. By this compromise, which was made in 1843, Watson and Walker gave to the assignees of the Planters Bank, in satisfaction of their claims, their new notes, secured by a mortgage upon the above mentioned lands and slaves. These notes were subsequently transferred by the assignees to Gillespie.

Before considering the relative rank of these litigants, it is proper to' dispose of certain special grounds of defence which are set up by Roberts and Gillespie against the alleged judicial mortgage rights of Stetson Sf Avery, the assignees of Cammack Sf Co. The judgment obtained by Cammack Sf Co. was founded upon a bill of exchange, drawn in Mississippi, by Watson upon Bogart Sf Hoopes, merchants at New Orleans, and by them accepted. The bill was dated in February, 1836, and was payable in February, 1837. It is said that this judgment was confessed, that Watson was insolvent at the date of the confession, and that he had a valid defence to the suit, which he did not urge.

Under the evidence, we are not prepared to say that the notice of protest was well given. But it is conclusively shown that the acceptance was given purely for the accommodation of the drawer; that he promised to send funds to the acceptors to meet the payment of the bill, but failed ever to do so. Under such circumstances, it is clear that the drawer was not entitled to notice. To‘withdraw the bill from the category of accommodation paper, the plaintiffs rely upon the fact that a mortgage was executed in 1845 to secure Bogart Sf.Hoopes. In this instrument the mortgagor recites that Bogart Sf Hoopes had accepted certain bills for him, and had agreed to accept others ; that all the acceptances made, or to be made, for him-, were gratuitously given, and to be givem from- disinterested-motives,and for the sole purpose of assisting him in his pecuniary negotiations; that he was desirous to secure them from all loss proceeding from the hazard of trade or otherwise, and therefore, to secure them against the payment of such drafts, he mortgaged, &c. The execution of this mortgage cannot- be considered as destroying the effect of the agreement, clearly proven, to- provide funds to meet the bill at its maturity, especially when taken in connection with the strong and unequivocal declaration in the act of mortgage that the acceptances- were purely accommodation. The evident intention of the parties was that, the bills should be covered by funds to be provided by the drawer ;■ the mortgage was for the further indemnity of the acceptor, and certainly did not authorize the drawer to entertain a reasonable expectation that the bills would be paid, if his promise of remittance was violated. It is not however indispensable to the excuse of the holder to rest the case upon this view of the intentions and expectations of the parties, for in fact the mortgagees, in order to enable the mortgagor to raise money by mortgaging the property to other parties, released the mortgage before the bill matured ; and we find also, not only the confession of judgment, but subsequent promises by Watson to pay the debt. It cannot be- reasonably objected that Watson was not aware of the irregularity as to notice, if irregularity there had been. For the notarial certificate of notice was on file in the cause when he confessed judgment, withdrawing the general denial which he had first pleaded.

But it is said that, at the time when the judgment was confessed, Wat'son was insolvent, and that such confession was a contract in fraud of the other creditors of Watson. That Watson was the- actual debtor of Canmack <$* Co. is clear; and if there was a fraud- it was merely such a legal fraud as results from a preference given by an insolvent to one'creditor over another. To constitute such legal fraud-, so as to affect the preferred creditor, it must appear that he also was not in good faith; that he knew the insolvency of the debtor, and contemplated the securing to himself'an advantage over the other creditor's. We do not think the evidence sufficient to impeach-the good faith of the creditor in the present case. It is not satisfactorily shown- that there was- any fraudulent knowledge or intent, on the part of the plaintiffs in-that suit. They brought their action in 1837, the-cause1 remained'at issue till- 1839, and then the confession, after the debtor had probably exhausted-the usual means of delay; was given in consideration of an onerous condition, a stay of execution for six months. The face of the proceedings certainly does not present that precipitant cy which usually marks a fraudulent confession.

Independent, however, of these considerations, we are of opinion that it is too late for the plaintiffs in this cause to raise the question-of illegal preference. The revocatory action in such cases- is bound by one year. Civil- Code, 1982. Alchafalaya Bank v. Caldwell, 14 La. 308. But to this the plaintiffs answer that, their interest did not arise until there was a conflict between Watson’s creditors, as to whose debts should be paid and whose lost; that the judgment of Cammack 8f Co., so long as it was not executed, did not affect the other creditors ; that when it is sought to be executed, then the plaintiffs may interpose their exception to the judgment, and show its nullity. They invoke the principie Qua temporalia sunt ad agendum, perpetua sunt ad excipiendum. This reasoning is specious, but ,not solid; the maxim is misapplied. Cammack Co. having recorded their judgment, its .registry was .notice to all other.creditors. They occupy the attitude of possessors of a mortgage right, dating from the 16th June, 1840. The plaintiffs -claiming under a-subsequent .registry are the attacking party. They seek to degrade the prior .mortgagee; to.oust him from the possession.of .his prior rank, which,he has peaceably.held for much more than one.year. They have not possessed the superior rank, but a secondary one. But itis.the possessor,-for whose benefit the rule, Qua, temporalia, may be invoked. “ Tout le monde est d’aeeord aujourd’hui que la régle dont il s’agit doit étre limité au cas oi\ le defendeur qui propose ¿’exception posséde la chose, ou jouit de la liberté .que le contrat qu’on lui oppose a pour but de limiter en lui.” La regie qua temporalia n’est que l’expression de cette vérité constante et palpable .qu’on ne prescrit pas contre celui qui posseda, et que si l’on jouit d’un état ou d’une position quelconque, on n’a besoin que d’u'ne exception pour s’y faire maintenir, -et nulleroent d’une action. 2 Troplong, Prescription, •§ 827 et seq. .

The cases cited by the plaintiffs, illustrate the principle as laid down by Troplong, and the only answer that the defendants need make is that, properly considered, they .ar-e.authorities .in their own favor. Thus in Thompson v. Milburn, 1 Mart. 469, the purchaser, sued for the price of a slave, wasrdlowed to set up-the-unsoundness of the slave,-although the action of redhibition was barred by the lapse of one year. The defencelwas properly permitted, because the purchaser was in possession of-the price. The case of Bushnell v. Brown’s heirs, was also the case of a purchaser sued for the price. He .alleged the deficiencies of the land, .and, in the language of Judge Martin, was permitted to use as a shield what he-could no longer use as á weapon. See also Paxton v. Cobb, 2 La. 139.

But the plaintiffs contend that, even if the judgment was valid, it was never so recorded as to have-effect against them. It appears by .the testimony of the parish judge that, the judgment in favor of Cammack Co., was recorded in a book-in which conventional and judicial mortgages were recorded indiscriminately. As no separate book for judicial mortgages was kept by the recorder, the irregularity should not prejudice the judgment creditor. As there was but one book kept, third persons could not be misled. If they searched in the only hook of mortgages kept, they would find the inscription there. The point has been substantially decided in recent cases. .

It is said that the -holders -of the bill had no right to damages at ten per cent. Copies of portions-of two statutes of Mississippi are in-evidence. One of these was enacted in 1822, and allows damages upon such a bill at the rate of ten per cent. The other was enacted in February, -1836, .and reduced the rate to five. The bill of exchange was drawn on the 15th February, 1836. On what day of February, 1836, the statute was .enacted, or went into effect, does not appear. We are not permitted to presume that it was enacted or went into effect before the bill was drawn, and must consider the bill as drawn -under the statute of 1822. The right therefore to ten per cent .damages, if the bill should be returned protested, being conferred by the statute, must be considered as part of and embodied in the contract, and the subsequent statute must not' be construed to operate retrospectively so as to take away a vested right. See White v. McQuillan, 12 La. 534.

Having disposed of tlxe objections which are urged against the validity of Cammack Sf Go's judgment, it only remains to enquire what are the relative rights of the plaintiffs, who hold mortgages obtained subsequent to the registry of that judgment.

The assignees of the Planters’ Bank, under whom Gillespie holds, were fully apprised of the simulation of the conveyance by Watson to Walker. It was expressly charged in the suit to annul it, brought by the bank in 1841. They took the mortgage, which Gillespie now holds, from Watson Sf Walker, in 1843. So far as they hold under Watson, it is clear that they took subject to the prior encumbrance registered in favor of Cammack Sf Co. in 1840. So far as they held under Walker, they took the mortgage with full actual notice that he was a fraudulent and simulated vendee, whose title was a mere shadow fraudulently cast upon the estate, and having no legal existence or efficacy. As Walker to their knowledge had no lawful right, he could convey none to them, to the detriment of Watson’s creditors.

Whether Roberts had actual notice when he took his mortgage from Walker, in 1842, does not appear. Buthe had constructive notice, and must give precedence to the defendants. The mortgage was given to him, pending the action instituted by Cammack Co. to have the simulation of the sale adjudged, and the property subjected to their judicial mortgage as the property of Watson, the pretended vendor. ,

It is a rule of universal jurisprudence, and one which has been expressly recognized in our Civil Code, that every man is presumed to be attentive to what passes in the courts of justice of the State where he resides, or has transactions. A purchase therefore of an estate actually in litigation, pendente lile, even for a valuable consideration, and without any express or implied notice in point of fact, affects th'e purchaser in the same manner as if he had such notice, and he will accordingly be bound by the decree in the suit. The rule may sometimes operate harshly, but is founded upon grave considerations of public policy, and must therefore be respected and enforced. See Story’s Equity, vol 1, 394, Civil Code, 2428. Long v. French, 13 La. 257. Cable v. Davenport, 4 La. 557. S.ee .also the elaborate opinion of Chancellor Kent, in Murray v. Ballow, 1 John. Ch. 57.6, in which he gives at length the english authorities, and, while recognizing the occasional hardship of the doctrine, says it is ,one of those eases in which private mischief must yield to general convenience.

The principle which defeats .conveyances made pendente lite, applies a fortiori to encumbrances.

In the case of the Bishop of Winchester v. Payne, 11 Vesey, jr. 194, the question was whether subsequent mortgagees of an equity of redemption were bound by a decree of foreclosure though not made parties, their rights having been acquired pendente lite. Sir William Grant saidí “ Ordinarily, it is true, the decree of the court binds only the parties to the suit. But he whp purchases during the pendency of the .suit, is bound by the decree that may be made against the person from whom he derives title; .the litigating parties are exempted from the necessity of taking any notice of a title so acquired. As to them, it is as if no such title existed. .Otherwise suits would be indeterminable, or, which would be the same in .effect, it would be in the pleasure of one party at what period the suit should .be .determined. The rule may sometimes operate with harship upon those who purchase without actual notice, yet general convenience requires its adoption; and a mortgage taken pendente lite aanno.tbo exempted from its .operation. Judgment affirmed.


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    Scott v. Duke.
    Where an order of seizure and sale, sued out, under art. 746 of the Code of Practice, on a judgment rendered in another State, was suspended hy appeal at the time of the passage of the stat. of 1 June, 1846, repealing so much of that article as authorizes executory process on such a judgment, the proceedings must be dismissed. Laws regulating the form of judicial proceedings relate to the remedy; and where, before a final decision, a new law changes the form, it must take effect at once, unless it expressly declares that the pre-existing form shall continue to he followed in cases then pending.
    APPEAL from, the District Court of Tensas, 'Curry, J.

      Frost and Montgomery, for the plaintiff.

      T. N. Peirce, Prentiss and Finney, for the appellants.
   The judgment of the courtwas pronounced by

Rost, J.

The plaintiff obtained from the-judge of the district court in and for the parish of Tensas, at chambers, an order of seizure on a judgment alleged to have been rendered in his favor by the Supreme Court of the State of Alabama. This order was granted in December, 1845, under the dispositions of art. 746 of the Code of Practice, and the-Bank of the State of Alabama, a creditor of the defendant’s, appealed from it in December, 1847, alleging various informalities said to be apparent on the face of the record.

That portion of art. 746 of.the Code of Practice which authorized executory process on foreign judgments was repealed early in 1846; and the first question which this case involves is, whether we can sustain an order of seizure taken before the repeal of the law, but suspended by appeal. The distinction between laws impairing the obligation of contracts, or of judgments, which the law holds to be contracts, and laws modifying the remedy given by the legislature to enforce the obligation, was fully recognized by Judge Marshall in the case of Sturges v. Crowninshield, 4 Wheaton, 200, and has been reasserted by the same tribunal in the case of Jackson v. Lamphire, 3 Peters, 280, and jn the case of The Charles River Bridge v. The Warren Bridge, 11 Peters, 539. Our predecessors have also recognized it in the cases of Patin v. Préjean, 7 La. 301, and The State v. Bermudez, 12 La. 355; and have held that executory proceedings belong te the remedy, 16 La. 256. Laws regulating the form of judicial proceedings are remedial laws; and that form depends upon the law in force at the time the proceedings are instituted, without regard to the law at the time of the occurrence of the faets upon which they are based. It may even vary, and it does actually vary, if before the final decision a new law intervenes which changes the form, unless that law expressly declares that the preexisting form shall continue to be followed in the cases then pending. The mode of execution of a judgment belongs to the future,- and consequently the new law must govern. Merlin, Effet Rétroaetif, sect. 3, § 8.and 10. These principles were fully recognized by the late Supreme Court in the cases of Cooper v. Hodge et al. 17 La. 476. Borgsted & Co. v. Nolan et al. Ibid 593. Frey et al v. Hebenstreit et al. 1 Rob. 565. Ludeling v. His Creditors, 4 Mart, N. S. 602. Dean v. Carnahan, 7 Mart. N. S. 259.

It has been held in Massachusetts that, when a special tribunal is created by an act of the legislature, on the repeal of the act without any saving of proceedings commenced and pending before it, its whole power and authority cease, and it cannot proceed to finish what has so commenced. 6 Pickering, 501.

Similar views are entertained by the courts and jurisconsults of France. The french Code de Procédare contained an article providing that it should be executed from and after ike 1st of January, 1807, and tbpt all suits instituted after that date should be conducted in conformity with its dispositions. The Council of State being.consulted upon the interpretation.of that article, decided, that all appeals taken since the 1st of January 1807 .came under the new forms, on the ground that appeals were new proceedings subject to the law in force at the time they took place. Sirey, ftepert. yol. 7, gee, 2, p. 54. •

When the appeal was taken in this case, the law authorizing the executory process had -been repealed, and the order of seizure had become inoperative in consequence of that repeal. Forced sales are slricti juris, and justice must have the warrant of a law in force at the time they take place, in order to transfer the title of the debtor to the purchaser.

It is therefore ordered that the plaintiff be forever enjoined from proceeding on his order of seizure, and that he pay the costs in both courts. It is further ordered that, his right to proceed via ordinaria be reserved.

      The cases of Duke v. Duke and Heard v. Duke, presenting the same facts ae this ¡Ease, similar decisions wore made in each of them. R,


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    Hebert v. Woods et al.
    Where a promissory note is lost by a special endorsee, payment of its amount to a third person who had acquired no lawful title to it, .will be no defence to an action by the true owner.
    A statement made in an account rendered by an agept, not under path, there being no evidence to bring .the account within tbe rule which permits the declaration of a witness to ¡be given in evidence against tlye principal as part of the res geske, is inadmissible in evidence.
    APPEAL from the District Court of West Baton Rouge, Burk, J.

      Bennett, for the plaintiff.

      Elam, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

The defendants are sued as makers of a lost note. After the loss' of the note the first endorsees, Hébert brothers, transferred their interest to the plaintiff. It appears from the evidence that Hébert brothers were the special endorsees of the payee, and entrusted the note to their correspondents in New Orleans, Ricker Sf Co., with the request that they would ascertain if a certain creditor of Hébert Co,-would take the note in payment, and, if so, then Hebert Sf Co. would endorse the note. A day or two afterwards, Ricker Sf Co. wrote to Hébert Sf Co. that the note was lost or mislaid. The note was advertised at New Orleans and at Baton Rouge, and the drawees were advised of its loss by letters enclosing copies of the advertisement. The testimony by which the above facts are established is uncontradicted, and was believed by the district judge. Under this testimony it is clear that no other person than the plaintiff ever acquired any lawful title to the note. Hébert Sf Co., being special endorsees, were alone capable to transfer it.

The defence relied upon is a payment to Gottschalk, who is said to have received the note from Ricker Sf Co. The testimony on this point is unsatisfactory. It is not proved at what date Gottschalk received the note, nor what consideration he gave for it, nor even that he ever actually had it in his possession. The only witness called for the defence acknowledges that he never saw . the note. He states that he collected the amount for Gottschalk from one of the makers, upon proving to him that the note was lost and that it belonged to Gottschalk; but what facts were proved to induce the maker to pay, is not shown.

Under the evidence the district judge properly concluded that the title of Hebert brothers was never lawfully divested, except in favor of the present plaintiff; and that if a payment was really made by the makers, it was made incautiously, and was ineffectual against the true owner.

The evidence adduced by the plaintiff to prove that the payee’s endorsement was special, was not inconsistent with the averments of the petition, and was properly received.

The court properly rej acted the copy of Ricker S¡- Co’s, account, made out in the hand-writing of Ricker and signed by him, in which the note was credited to Hebert brothers. If Ricker himself was a competent witness he should have been examined. The plaintiff' could not be bound by his ex parte and unsworn statement. It was'mere hearsay, there being no accompanying evidence to bring the document within the rule, which permits the declaration of an agent to he given in evidence against the principal as part of the res gesta.

Judgment affirmed.