author: Bullard,

text:
    REEVES vs. TOWLES.
    Western Dist.

      September, 1836.
    APPEAL FBOM THE COURT OP THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    The assessment is the authority on which the sheriff or collector proceeds to demand and sell property for taxes. It is analogous to an execution issuing on a judgment. To support a sheriff’s deed, the party relying on it must show a judgment and execution. So a deed for land purchased at a sale for taxes, unaccompanied by evidence of the assessment is insufficient to show a valid alienation, and that the former owner is divested of title. Tb
    Where the vendor assumes to sell without title, or a disclosure of the defects of his title, the vendee, though holding under a sale a non domino, may invoke the prescription of ten years.
    But where A sells to B all his right, title and interest in and to a certain tract of land, which is vested in him by virtue of a sale for taxes, made by a parish judge, being for the taxes due thereon by C, the original owner: Held, that A is expressly exempted from warranty, except against himself; and his title, thus sold, being expressly referred to and set out, shows on its face the kind of claim, title or interest conveyed, and brings home to his vendee full knowledge of the title under which his vendor claimed, which, if defective, prevents the prescription of ten years from running.
    A title, on the face of which a fatal defect is stamped, and which is known to the possessor, cannot be the basis of the ten years’ prescription.
    A title, to serve as the basis of the ten years’ prescription, must be in itself translative of property. But the title which does not furnish evidence that all the formalities required by law have been complied with, has always been considered deficient in form, whenever the vendor acts in a public capacity or trust, and takes upon himself to sell the property of another.
    Errors of law do not form a good foundation for acquiring property. The deed of a tax collector, though it proves rem ipsam, i. e., that he sold, yet it furnishes no evidence of his authority to sell, without proof of an assessment, and is therefore defective in form.

      Where the defendant sets up in his answer to be the true owner of the plaintiff’s title to the land in controversy, and alleges long possession under it, he cannot afterwards be permitted to dispute the locus in quo. , He admits that the claim of the plaintiff covers the land in dispute.
    This is a petitory action. The plaintiff claims a tract of land on the Bayou Téche, containing eight arpents front, with the depth of forty, situated immediately below that on which the defendant resides, and calling to bind on his lower line. The defendant’s residence is on what is called the “Gravenberg tract.” He is also in possession of the locus in quo.

    The plaintiff alleges that he is the owner of this tract of land, which lies on the right or west side of the Bayou Téche, descending, bounded above by the land of the defendant, and below by lands formerly claimed by the heirs of Philo Norton; that said land was, on the 9th of May, 1813, sold by Patrick Johnson, the then owner, to John Reeves, and which was afterwards sold at the probate sale of said Reeves’s succession, and purchased by the petitioner the 31st of January, 1831.
    The plaintiff then alleges that the defendant, John Towles, has taken possession of said tract of land, and claims to be the true owner. He prays judgment, decreeing him to be the lawful owner thereof, and that he be put in possession.
    The defendant pleaded the general issue, and averred, that on the 7th of October, 1816, he purchased from Jehu Wilkinson and H. G. White, a tract of land on the west side of the Bayou Téche, containing eight arpents front by the depth of forty, forming part of the plantation of which he is now in possession, being the same tract ’ sold to the said Wilkinson and White, by deed of sale from the honorable James White, judge of the county and parish of Attakapas, dated the 9th November, 1809; that he, and those under whom he claims, have been in the uninterrupted possession of the premises, by virtue of a good and sufficient title, for more than twenty years. He pleads the prescription of ten and twenty years, and prays that the plaintiff’s suit be dismissed.

      During the pendency of this suit, Dr. John Towles, died, and his widow and heirs, were cited in as defendants. In an amended answer, they aver, that on the 15th April, 1816, the said John Towles purchased of Henry Hargroider, as sole heir of Charles Hargroider, six arpents front of land on the west side of the Bayou Teche, bounded above by lands of his (Towles) and below by lands belonging to the heirs of Philo Norton, of which the purchaser and his vendors have been in possession, under a good title, &c., for more than twenty years, and plead the prescription of ten and twenty years, &c.
    Upon these pleadings and issues the cause was tried before court.
    The plaintiff’s written evidence consisted of the act of sale • from Patrick Johnson to Joseph Reeves, in 1813, and the proceedings of the probate sale to the plaintiff, in 1831, of John Reeves’s estate. The commissioners’ certificate and act of confirmation by congress, in 1816, in the name of Patrick Johnson, showed that this claim was founded on settlement and cultivation before the change of government in 1803, and required as its location that it should bind on the Gravenberg tract, and run down the Bayou Téche eight arpents in front, and run back to the depth of forty, so as to include three hundred and twenty superficial arpents.
    The defendants relied, first upon the deed of sale for the taxes, made by judge White, in 1809, and the purchase of the same tract of land by Wilkinson and White, for twelve dollars and twenty-three cents; and also the act of sale from them to John Towles, in 1816. Evidence of the claim of C. Hargroider, of six arpents front, which Dr. Towles had purchased of Henry Hargroider, in 1816, was offered to show that it took the place of the locus in quo, by calling to bind on the tract confirmed to Norton’s heirs, below, and his own lands above. It was then shown, that after the Norton or Henry Hargroider claim, below, for ten arpents front, came Bundick, junior, for six arpents front, and Bundick, senior, for ten arpents front, which run and cornered on a coulee or dry bayou, which made out of the Bayou Téche. By this evidence it was attempted to crowd out and prevent Patrick Johnson’s claim or the locus in quo from having any front.
    The plaintiff showed, that by the township map the Johnson tract had been located by the United States surveyor, according to its call, with eight arpents front, and running back by parallel lines to the depth of forty arpents.
    The several titles produced on the trial are fully set out} in the opinion of the court.
    The district judge rendered judgment in favor of the plaintiff for the quantity of superficial arpents claimed, but, in order to let in the Norton or Henry Hargroider claim, gave only about two and one half arpents front. The defendants appealed.
    The plaintiff, in his answer to the appeal, prayed that the judgment might be so amended as to give him the entire front, between his upper and lower boundary, on the Norton claim.

      Garland, for the plaintiff.
    1. The title of Patrick Johnson is a good, one, being founded on a settlement and cultivation made by his father, and continued afterwards by his mother and himself. It is a title of a high order, ./let of Congress, March, 1805. Land Laws, page 518, section 2. diet, April 21, 1806, sections 1, 2.
    2. The defendant cannot contest the title of Johnson, because he claims under it himself. He can only show that' he has become vested with all his rights, by purchase or otherwise.
    ■ 3. He has not legally become a purchaser of the rights of Johnson to the land, as the sale made by judge White in 1809, was illegal and void, not being made in conformity to law, or in the manner directed by the legislature. It is stated in the deed the sale was made,to the lowest bidder. It is not a just title that can transfer the ownership. Acts 1807, sections 6 and 9, pages 148,154. 6 Martin, JV. 8., page 348. 1 Louisiana Reports, 491.
    4. The sale from judge Wilkinson for himself, as attorney in fact of H. G. White, conveys only such title as they might have by virtue of the sale from judge White. See the terms of the act, which is a private one, never recorded until this su¡t was commenced.
    5. The defendant’s plea of prescription cannot be maintained, because he does not hold by a just title, transferable of the ownership of the property. Civil Code, page 488, articles 67, 68, 70. Louisiana Code, articles 3437, 3445, 3449, 3450, 3451, 3453. 7 Martin, 403. 8 Ibid., 629. 10 Ibid., 289.
    6. A transferable title, or one translative of property, is one which is complete in form, and contains all the usual requisites of an ordinary conveyance. It must be complete in all the essentials of a sale, and have nothing on its face that implies a doubt of its validity and legality. 7 Martin, from 401 to 10.
    7. The title is defective in form; it does not show the authority by which the sale for taxes was made; no assessment for taxes is shown, and no assessment roll is produced in evidence. Without this no sale for taxes can stand. In all forced alienations, the authority under which they are made must be produced and accompany the sale. 7 Martin, 347, 7 Louisiana Reports, 46.
    8. The defendant having, in his original answer, set up Johnson’s title, and claimed the land under it, cannot, in his amended answer, set up another title derived from Hargroi-der, or any one else, thereby to defeat the title he first claimed under.
    9. But suppose the defendant can set up the claim derived from Hargroider, we then contend that his title to it is not such a one as he can prescribe on. There is no warranty in the sale.
    10. There is no conflict between the titles of Johnson and Hargroider, except as to a small quantity in front, and, to obviate all difficulties, the court below ordered the front to be equally divided, it being shown that there was land enough, not covered by any other claim, to give each title its superficial quantity.
    11. The title of Johnson is a better one than that of Charles Hargroider, the former having a certificate of confirmation from the United States, with ample proof of settlement and cultivation, under the Spanish government, and occupation since. The latter has only the certificate of confirmation, and the proof is positive that he never settled or occupied the land before the cession of Louisiana, or since Henry Hargroider admitted it before the commissioners. 8 Martin, 637,727. 5 Ibid., 679. 11 Ibid., 207. 3 Louisiana Reports, 107,

      Brownson and Simon, for the defendant.
    1. The plaintiff’s action is barred by the prescription of ten years. The defendant, Dr. Towles, and those under whom he claims, have had constructive and actual possession of the land in question for more than ten years, under a good and just title, translative of property, and cannot now be disturbed in the possession and ownership thereof. Louisiana Code, articles 3437, 3442, 3443. '
    • 2. If there were any defect in the defendant’s title, it is cured by long and uninterrupted possession and prescription, because it was not made known to the defendant. A bare reference to the title of his vendor does not bring home to the vendee knowledge of its defectiveness, so as (o prevent prescription from running. Fletcher’s heirs vs. Cavelier et al. 4 Louisiana Reports,- 274.
    3. The defect in the title derived from the sale for taxes, if there be any, does not appear on the face of the deed. It recites the capacity of the officer making the sale, and that it was made under and by virtue of a law of the territory. The defect, therefore, could not be known to the purchasers, and they were consequently possessors in good faith. Vide Carrel’s heirs vs. Cabaret, 7 Martin, 376.
    4. The defendant is the owner of the locus in quo under another title. In the year 1816, he purchased from H. Har-groider, sole heir of C. Hargroider, six arpents of land in front, on Bayou Téche, by forty in depth, which bounded his land above, (being the Gravenberg tract) and below by the Philo Norton claim, and covers the whole front of the Johnson claim, which the plaintiff sets up as the basis of his title. The defendant has been in possession, under this title, which is not contested as defective, for more than ten years, and is entitled to hold it, as against the plaintiff, both by prescription and superiority of title.
    5. The plaintiff cannot have his location as he claims, because when the other claims of Hargroider, Philo Norton and the two Bundicks, which commence at a point certain, run up the Bayou to the Gravenberg tract, which is permanent, there is no front left for the Johnson tract, without cutting off the fronts of the Hargroider tracts.
   Bullard,

delivered the opinion of the court.

This is a petitory action, in which the plaintiff sets up title to a tract of land, of eight arpents front, on the Bayou Teche, with a depth of forty, bounded above by land of B. Graven-berg. The title exhibited by him consists of a confirmation by act of congress, in 1816, of the claim of Patrick Johnson for a tract as above described, á conveyance by Johnson to John Reeves, and the adjudication of the same to the present plaintiff, at the probate sale of John Reeves’s estate. On the township plat, in the land office, this tract is represented as having been laid off and located according to its calls. The plaintiff has therefore shown a title in himself, which would authorize a judgment in his favor, unless the defendant can show either a better title, or one which, however groundless in its origin, has become perfect by prescription.

The defendant claims to be the owner of the same tract of land under the title of Johnson, by purchase from Wilkinson and White, who, he alleges, purchased it at a sale for taxes in 1809, made by the parish judge, as collector of taxes for the county of Attakapas. He also pleads the prescription of ten years under this title.

The defendant, in an amended answer, further alleges, that in 1816 he purchased from Henry Hargroider, as heir at law of Charles Hargroider, six arpents front of land, on the west side of the Bayou Téche, bounded above by laud then belonging to him, and below by lands belonging to the heirs of Philo Norton, and he claims said land by virtue of said sale, and by the prescription of twenty years.

The assessment is the authority on which the sheriff or collector proceeds to demand and sell property for taxes. It is analogous to an execution issuing on a judgment. To support a sheriff’s deed, the party relying on it must show a judgment and execution. So, a deed for land purchased at a sale for taxes, unaccompanied by evidence of the assessment, is insufficient to show a valid alienation, and that the former owner is divested of title.

Where the vendor assumes to sell without title, or a disclosure of the defects of his title, the vendee, though holding under a sale 3 non domino, may invoke the prescription of ten vears.

We will first examiné the title of the defendant, derived from Wilkinson and White, and the alleged prescription based upon it.

The deed from the parish judge of Attalcapas, dated Nov. 24, 1809, recites, that in pursuance of the provisions of the act of 1807, he had that day exposed to public sale, to the lowest bidder, for the territorial taxes due thereon for the years 1807 and 1808, eight acres of land in front, with the usual depth, situated on the Bayou Téché, given in as the property of Patrick Johnson, when H. Gr. White and J. Wilkinson became the purchasers of the whole tract, for the sum of twelve dollars and twenty-three cents, the amount of taxes and costs. He then warrants to the purchasers all the right, title and claim of the said Patrick Johnson to said tract of land.

According to repeated decisions of this court, such a deed, unaccompanied by evidence of the assessment at least, is insufficient to show a valid alienation and that the former owner was divested of title. 6 Martin, N. S., 347. 7 Louisiana Reports, 46.

The vendors of the defendant, according to the evidence before us, acquired nothing by the deed from the parish judge, and could convey no title to the defendant. If, however, they had assumed to sell the land as their own, although without title and without a disclosure of the defect of their title, their vendee, though holding under a sale U non domino, might have based upon it the prescription of ten years. The question then presents itself, whether the sale from Wilkinson and White be such a title as might form the basis of prescription ; whether it did disclose to the defendant a fatal defect in the title of his vendors, and whether such defect be one of form, in the sense of the code, which declares that a title defective in form cannot serve as the basis of the ten years’ prescription.

Wilkinson and White, in their conveyance to the defendant, sell all the right, title, interest and claim in and to the tract of land in controversy, vested in them by virtue of a sale for taxes, on the 24th November, 1809, by James White, the judge of the parish of Attakapas, for the taxes due thereon by Patrick Johnson. They are expressly exempted from auy warranty, except against themselves, and any person claiming through, by or under them.

But where A sells to B, all his right, title and interest in and to, a. certain tract of land, which is vested in him by virtue of a sale for taxes, made by a parish judge, being for the taxes due thereon by C, the original owner: Held, that A is expressly exempted from warranty, except against himself^ andhis title thus sold, being expressly referred to and set out, shows on its face the kind of claim, title or interest conveyed, and brings home to his ven-dee full knowledge of the title under which his vendor claimed, which, if defective, prevents the prescription of ten years from running.

Here the title, by which the defendant’s vendors claim the land, is expressly referred to, and a recurrence to it is necessary, in order to ascertain what kind of claim, title or interest was conveyed, for the interest or title which they acquired may have been only an usufruct, or a lease for a term of years, or other limited estate belonging to Johnson at the time of the sale. The vendors do not assert that they acquired the tract of land, and refer to the title by which they acquired it as existing in a particular plan, as was the case in Fletcher vs. Cavelier, 4 Louisiana Reports, 267 and 274, but they leave the intention of the parties, as to the degree of title sold and conveyed, to be ascertained by reference to a particular sale made for taxes. We think this brings home to the defendant a knowledge of the title under which their vendors assumed to hold.

The next question is, what is the character of this defect ? Is it such a defect of form as vitiates the title considered as the basis of the ten years’ prescription 'l If the parish judge had assumed to sell the land as his own, his want of title would not have destroyed the right of his vendee to prescribe; and we hold, as in the case of Bedford vs. Urquhart, 8 Louisiana Reports, 234 and 241, that where one takes upon himself, as the attorney in fact of another, to sell, and delivers possession, that his deed of sale may form the basis of prescription, because the defect consists in the want of evidence of the mandate, and is not a nullity of form resulting from the legal incapacity of the vendors, and that after a lapse of years the power of attorney would be presumed in favor of the possessor.

The case now before the court differs very materially from that of Carrel’s heirs vs. Cabaret, 7 Martin, 376, much relied ©n in the argument. The action in that case was to set aside a will and to recover the estate of the testator, partly on the ground that the'testament was inofficious, on account of a legal incapacity of the instituted heir. The prescription pleaded was one of five years against the action testamenti inofficiosi. In speaking of the form of the will, under a different branch of the case, the court use the expressions relied on, to wit: “When the law says a title defective in , . .. ... . form shall not be the basis of prescription, what does it mean Í A title which, though apparently good, has some latent defect? Certainly not. A title which, though apparently clothed with all the formalities required by law, may be proved defective by intrinsic evidence ? No. It means a title on the face of which the defect is stamped.” But the court adds, afterwards, “if the latent defect is known to the possessor, he cannot prescribe.” But the case turned upon the principle that the nullity resulting from the incapacity alleged, that of concubinage, was relative only, and an action to annul a testament on that ground was limited to five years.

a title, on the stamped, and -which is known to the possessor, ,“™sot0f 'j^e jyai's’ prescrip-

a title to serve “he tendeara’ prescription, must be in itself translative of thePtitíe ’ which (lo.e,s not furnish the _ formalities htve^been^com-Plied has always been con-sideral deficient ever the’ vendor eapacUyortrust* ayd tajies upon the property of another'

do^XVoím^a §'ood foundation tor acquiring property,

A title to serve as the basis of the ten years’prescription must be such as is in itself translative of property, and that title has always, by this court, been considered as deficient • e . . . , „ ’ .. , , . ,. in form which does not furnish evidence that all the formalities required by law have been complied with, whenever the vendor acts in a public trust and takes upon himself to sell the property of another. An assessment of the tax, which is written evidence, forms an essential ingredient in the title of a purchaser at a collector’s sale. Can we presume that 1 r there was an assessment of the tax, and that it was regularly demanded, and the sale of the land regularly made ? We have stated that we could not. If so, the maxim applies “de non existeniibus et non apparenlibus eadem est ratio." Errors of law do not form a good foundation for acquiring property. Francaise vs. Delaronde, 8 Martin, 632. The simple certificate of a public officer that he has sold the property of another person is not a title translative of property, and he labors under an error of law who suposes that it is.

The deed of a thmighTt'piwes rem ipsam, i. e., that he sold, yet it furnishes no authority to sell without proof of an assessment, and is therefore form.tlVe m

But it is contended that a purchaser at á tax sale has a right to presume that all the formalities of law have been complied with. The defect in the title does not consist in the proof that there was no assessment, but in the want of all proof that such assessment existed, because without it the officer was without warrant to sell, as the tutor, without judicial authority, has no capacity to sell the property of his pupil. If such authority cannot, in law, be presumed, at the time of the forced alienation, at what time does' it spring into existence for the purpose of divesting the title of the owner % If such alienation were only voidable, or the nullity resulting from a legal incapacity in a public officer without warrant of law were merely relative, we might perhaps fairly presume, after so long a silence, that he was warranted in his proceedings. But we consider the deed of the tax collector, though it proves rem ipsam, i. e., that he sold, yet, as furnish-. jng n0 evidence of his authority to sell without proof of an ° , , , ... . A . , . assessment, and therefore defective in form.- Considering, as we do, that the defendant has identified himself with his vendors, and taken, upon himself the risk of such title as \ . they may have acquired by the parish judge’s deed or certificate, and that their title was null, we are of opinion that the plea of prescription was properly overruled.

We come now to examine the title set up by the defendant, under a sale from Hargroider, for six arpents front, bounded above by lands of the defendant, and below by Philo Norton. The title of Charles Hargroider does not call for the same land covered by the title of Patrick Johnson. Its true location can only be ascertained by commencing, a series of surveys from below. The claim of B undick, senior, for ten arpents front, calls to commence at an arroyo as its lower boundary. This we'suppose to be the coulée spoken of by the witnesses. Then comes the title of Bundick, junior, for six arpents ; next, that of Henry Hargroider, for ten arpents, afterwards confirmed in the name of Philo Norton’s heirs; and lastly, that of Charles Hargroider, for six arpents front. The land of Charles Hargroider, therefore, according to the written evidence in the record, commences twenty-six arpents above the coulee or arroyo, and runs up the bayou for its front. On the contrary, the title of Patrick Johnson calls for Gravenberg’s lower line, and runs down the bayou for its front of eight arpents. If the distance from the coulee to Gravenberg’s lower line be forty arpents, there is sufficient land for all the claimants. The precise distance is not shown in the record. The witnesses suppose it to be upwards of thirty arpents. The defendant acquired, therefore, by his purchase, six arpents front of land, beginning at a distance of twenty-six arpents above the coulee, and before he can he maintained in possession of any of the land claimed in this suit he must show that this title of Charles Hargroider covers a part of the land in controversy. Having claimed, in his original answer, to be the owner of the Johnson title, and alleged long possession under it, he cannot now be permitted to dispute the locus in quo; he has admitted that Johnson’s title covers the first eight arpents below the Gra-venberg tract. It has been said, that a man may have two or more titles to the same land. This we do not doubt, but then it must be for the same land; but if he sets up prescription under one title he cannot avail himself of prescription under another not calling for the same land, because he cannot gainsay the character of his own possession. The defendant having failed to show that the title acquired from Hargroider covers a part of the Johnson tract, although he has rendered it probable that they will interfere, cannot, in our opinion, avail himself of it in this suit.

Where the defendant sets up in his answer t-) be the true owner of the plaintiff’s title to the land in controversy, and alleges long possession under it, he cannot after-wards be permitted to dispute the locits in quo. He admits that the claim of the plaintiff covers the land in dispute.

The court below, by its judgment, made an equal division of the 'front, supposed to exist between Gravenberg’s lower line and the upper one of Philo Norton, between the parties. Of this the appellee complains, as an error to his prejudice, and he has prayed a reversal of the judgment in his favor. If the plaintiff was entitled to recover any thing, we are of opinion he is entitled to the whole tract, such as it is described in his title; and as it appears to us that his vendor never was divested of title, and that the plea of prescription will not avail the defendant, the judgment below must be reversed.

It is, therefore, ordered, adjudged and decreed, that the -judgment of the District Court be annulled, avoided, and reversed; and proceeding to give such judgment, as in our opinion ought to have been rendered below, it is further ordered, adjudged and decreed, that the plaintiff recover and be quieted in hi's title to the tract of land described in his petition, having a front of eight arpents on the Bayou Téche, bounded above by the lower Jine of the Gravenberg tract, as laid down on' the plat of survey made under the direction of the District Court, with the depth of forty arpents, and that the defendant pay the costs of both courts.


source: Caselaw Access Project

author: Martin, J.,

license: Public Domain

text:
    RICE vs. CADE ET AL.
    WnsTimií Dist.

      September, 1836.
    APPEAL PROM THE COURT OP THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SIXTH PRESIDING.
    Where the owner of slaves permits them to tow vessels, or work for themselves, and at times forbids them, if one is accidentally lost, whilst engaged in such employment, the person so employing them will not be liable to the owner for the value of the slave so lost.
    So where a steamboat was wooding, and the slaves of a neighbor came on board, without its being shown that they were actually employed by the master or owner of the boat, and one of them was killed, accidentally, by the fly-wheel: He/d, that the owners of the steamboat were not liable for the value of the slave thus lost.
    This is an action against the defendants, Robert Cade and John Greig, as owners of .the steamboat Two Friends, to render them liable for the loss of a negro man, who was killed on board, and to recover the sum of one thousand dollars for his value.
    The plaintiff alleges that the defendants’ boat, on her trip down from Vermilion bridge to New-Orleans, stopped at R. Cade’s landing, and, without, his permission or consent, took on board a number of his slaves, who remained on board, with the permission' of the captain and one of the owners of the boat, until she dropped down a short distance to a wood 11 yard, for the purpose of wooding; that said slaves were employed, without his written permission or consent, in carrying in wood ; that after the boat was done wooding, the engineer set the engine in motion, improperly and imprudently, before the said slaves had time to get out, and while they were running through the boat, to go out, one of them, named Arthur, was killed by the engine,or fly-wheel,, a sober and good slave, of the value of one thousand dollars. He further alleges, that the defendants are liable to pay him the value of said slave, lost through the carelessness and neglect of the engineer, because, by a law of the state, any master or owner of any ship, vessel or other water craft is-prohibited from receiving on board, or permitting to remain on board, &c., any slave belonging to'another person, otherwise shall be liable to the payment of the damages resulting from his violation of the law. They are liable, because they had no right to receive or permit said slave to remain on board, or employ him, without permission ; and if found on board they should have dismissed him; and further, because-the loss of the slave is a consequence of the illegal conduct and acts, either active or passive, of the owners and master of said boat: wherefore he prays judgment for-one thousand dollars, the value of the slave thus lost.
    ' The defendants pleaded a general denial, and that if said slave was killed on board said boat, they were ignorant of the facts, and are not bound in any manner for the loss.
    Upon these pleadings and issues the cause- was tried by-the court.
    G. Petrie, witness for plaintiff, and overseer of defendant, Cade, sworn, says, it was on a Sunday morning, the 2d March, 1834, that the steamboat Two Friends stopped at Mr. Cade’s landing, and took on board a number of his (Cade’s) slaves, Mr. Cade then on board; some of the plaintiff’s also went on board.. Mr. Cade was standing on deck, and made no objections. There were eight or ten negroes who went on board, but he did not see the slave Arthur among the number. Capt. Curry, who commanded the boat, asked Mr. Cade if all those negroes were to go on board, who replied yes. Witness, with the negroes and Mr. Cade, all went down to the wood yard, which was about a mile and a half or two miles below the plantation. On stopping, Cade told witness to call his negroes, to help the boat to wood. There were three or four of the plaintiff’s negroes who also helped to carry wood. They assisted until the quantity of wood required was carried on board. Mr. Cade and the captain were at the wood pile, and measured the wood. Witness was on shore when the accident happened to the negro of plaintiff who was killed. Another of plaintiff’s negroes was on board when the boat was about putting off, and was with difficulty put on shore. Witness thinks the negro, at the time he was killed, was worth eight or nine hundred dollars.
    Cross-examined. Witness states, that when the steamboat landed at Cade’s plantation, there were a few white persons and a great many blacks. Cade told witness to call his (Cade’s) hands to go down and help to wood. Did not understand that Rice’s negroes, or any other person’s, were to be sent down. Capt. Curry asked Cade if all those negroes (meaning those on shor'e) were to go on board. Cade answered, yes. Witness did not order any of them to go on board, and went himself to the wood yard. Did not perceive the negro, Arthur, on board. Did not superintend the carrying in of wood. Gave no orders to Cade’s negroes to go on board; only Cade told him he wished all his hands to go and help wood. Witness called them all to the bank where the wood lay, and told them what Cade wanted with them, i. e., to wood the boat. Did not see Cade ordering or instructing Rice’s negroes to do any work whatever. Never heard Cade say that he knew any of Rice’s negroes were on board. Did not, at any time, see the negro, Arthur, before he was brought out, wounded. Has no doubt but that he would have been as apt to see Arthur as Mr. Cade himself. Witness says Rice lives near (eight or ten arpents from) Cade; is very indulgent to his slaves, and not so strict as Cade in'keeping his negroes at home on Sundays; says, when the boat came too, to wood, there were no negroes at the wood yard, on shore.
    A. Lemere, witness for plaintiff, was at the wood yard, where the boat wooded ; recognized two negroes of Rice’s, William and John, carrying in wood. Did not see Cade.
    H. Petrie, for same, said he was not present when the boat landed, but was there when the negroes were carrying in wood; saw two of Rice’s negroes carrying in wood; is not sure he saw Arthur; it seems to him he did, but is not positive. Cade came and measured the,wood; the negroes came and took the wood to the boat; cannot say, positively, Arthur was there ; saw him after he was wounded.
    Cross-examined. Says he did not see Cade command or order any of Rice’s negroes ; does not know where he was, or whether he was in a situation to have prevented the accident.
    Question asked by the court. Witness says he saw a bottle, out of which the negroes drank; did not know what was in it; does not know who gave it to them.
    Examination in chief. The boat pushed off directly ; the wood was in. When they were pulling in the plank, saw some negroes on board; they seemed to be in a hurry; does not know whether they were warned or not; does, not know where Cade was when they pushed off, but he was on board.
    W. Kibbe, clerk of the boat, witness for defendant, says, while at Cade’s landing, he heard Cade tell his overseer to send some of his negroes on board, to go down to the wood yard and assist in wooding. The negroes came on board, he thinks some five or six, and proceeded to the wood yard. After they were done wooding, and the negroes all gone on shore, as was supposed, and the boat was in the act of casting off, some one called out that one of Mr. Cade’s negro.es was killed. It proved to be one of Mr. Rice’s negroes. Witness understood that the accident was caused by the negro being caught in the fly-wheel, when trying to make his way out of the engine room, where he had been for some purpose unknown to the witness. As the captain and owners were not in the habit of employing slaves to work on the boat, without the consent of the owners, it was not-supposed that there were any negroes on board, except Mr. Cade’s, and, to witness’s knowledge, there were no other negroes employed to work on the boat that day, or if there were, nothing was paid to them ; neither does he think the master or owners had any knowledge of the negro being on board until the accident happened. If there were any hands employed on board, witness was always called upon to pay them. At the time of the accident, the engine room was closely •stowed with cotton and hides; so much so, that it was difficult for a person to pass through without crawling over the bales.
    Capt. Curry, who commanded the boat at the time of the accident, states, that he and Cade were standing on the boiler deck, at the plantation of the latter, when he (Cade) inquired how many hands were wanted; witness says he answered about five or six. Cade then called to 'his overseer, who was standing on the bank, amongst his negroes, to send the number required, and that part or all of them came on board, to go to the wood pile. By the bayou, they had about a mile and a half to go, but there was a road by land much nearer. After landing at the wood pile, saw the overseer opposite to the boat, on shore, and a great number of negroes, men, women and children, on the bank, looking at the boat. Neither himself, Mr. Cade, or any other owner of the boat, he is satisfied, knew that any strange negro was on board.
    Witness says he has made it a rule, for the last seven or •eight years, from which he has not deviated, whether acting .as captain or otherwise, never to employ or harbor any slave, in any manner whatever, without the consent of the owner, -&c., and when found on board of any boat under his charge, without such consent, to commit the slave so found to the first prison on his route.
    The evidence showed that Cade and Greig were the •owners of the steamboat Two Friends.

      The district judge rendered judgment in favor of the plaintiff, against the defendant, Cade, for the sum' of eight hundred and fifty dollars, and discharged the other defendant. Cade appealed. •

      Simon, for the plaintiff,
    contended that the evidence showed that the slave in question was permitted to come on board" the boat, and, in fact, he was employed in carrying wood, and this, too, without the permission of his master and owner, consequently the defendant is liable.
    2. There is an express law of this state, prohibiting masters and owners of vessels from receiving on board, or permitting to remain on board, any slave belonging to another, without a written permission, and which makes them liable for all the damages that ensue, by allowing slaves to come on board in violation of the law. 1 Moreau’s Digest, 377, 382, section 5.

      Erownson and Crow, for the defendant.
   Martin, J.,

delivered the opinion of the court.

The defendant seeks the reversal of a judgment, which condemns him to pay the value of a slave of the plaintiff, killed on board of the defendant’s steamboat.

It does not appear, from any part of the testimony, that this slave came on board with the defendant’s knowledge or consent, although it may be inferred, from the evidence, that other slaves of the defendant did, as the affirmative answer which he gave to the captain of the boat, who asked whether all the slaves that were standing near it should be taken in, may seem to have included other negroes than those belonging to him.

In this hypothesis, (as it is not shown that the slave killed. was near the boat at the time) it may be doubtful whether the answer would affect the defendant. The negroes who came on board were' taken down the bayou, a distance of about a mile and a half, and employed in wooding. One of the plaintiff’s witnesses deposes, that he believes, but is not positive, that he saw the slave, Arthur, assisting in carrying wood. We are without any other evidence of Arthur’s having been on board, until the time when he came in contact with the fly-wheel, and was thereby killed. If we reject the testimony of the witness who says he cannot swear, positively, we are then without the least tittle of evidence to support the assertion, that this slave came on board with the knowledge or consent of the defendant, Cade, one of the owners. We think it inadmissible, and must conclude that the evidence is in favor of the defendants.

Where the owner of slaves permits them to tow vessels, or work for themselves, and at times forbids them, if one is accidentally lost whilst engaged in such employment, the person so employing them will not be liableto iheowner for the value of the slave so lost.

In the case of Morgan’s Syndics vs. Fiveash, 7 Martin, N. S., 410, and 8 Ibid., 588, this court held, that a planter, who at times permits his slaves to tow vessels, and at others forbids it, is not entitled to recover the value of one of them, who was lost in that way. The permission to slaves, allowing them to work for other persons than their owners, may be often implied from the minuteness of the services, or the time at which they are rendered. On the arrival of a stage or steamboat, a number of black boys crowd near it, to be employed in conveying trunks and baggage of the passengers and others therefrom. The passengers who accept their services cannot be expected to loose time in inquiring whether the boy be a slave or a free person, and, in the former case, whether he has his owner’s permission. The law forbids the purchase of any thing from a slave, without a written permission from his master, yet, many times, the most correct of our citizens buy a melon, or other trifling article, without the production of this permit. In such a case, the. act is considered as justified by the maxim, de miñimis non curat lex, or the proverb, lo poco por nada se reputa. The day on which the services of slaves are rendered is thought to authorize the conclusion that they were impliedly permitted. According to the provisions of law, slaves are entitled to the produce of their labor on Sunday; even the master is bound to remunerate them, if he employs them. He, therefore, who does not require their services on that day, and does not retain them on his plantation, impliedly permits them to earn money by their labor, and cannot complain of their being employed by his neighbors.

So, where a steamboat was wooding, and the slaves ofaneigh-bor came on board, ■without it’s being shown that they were actually employed by the master or owner of the boat, and one of them was killed, accidentally, by the fly-wheel: Held, that the owners of the steamboat were not liable for the value of the slave thus lost.

The testimony, .in this case, shows the plain tiff to be indulgent to his slaves, in permitting them to go backward and forwards to his neighbors’ plantations on Sunday; we are, therefore, not ready to say, if the case required it, that the evidence does not authorize the conclusion, that the slave, Arthur, had an implied permission from his master to work for himself. We do not wish to intimate, that a person employing the slave of another on Sunday, in dangerous work or occupation, as the breaking a wild horse by a slave unaccustomed to such exercises, could protect himself under such an implied. permission. The absence of any legal evidence, that the slave in question was employed in wooding, renders it unnecessary to inquire whether this be a dangerous occupation or not.

Upon the whole, the evidence authorizes us to conclude, that the loss of the slave was occasioned by circumstances purely accidental, for which the defendants are not liable, rather than resulting from any fault or negligence of theirs, which would authorize a recovery.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that ours be for the defendant, with costs in both courts.


text:
    SEGOND vs. THOMAS.
    Western Dist.
    September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    A letter of credit, written by the defendant, introducing a person to the plaintiff as concerned with him in the planting business, and going to the city where the latter resides, to make purchases for the plantation, with directions to draw on him, and requesting him (plaintiff) to pay his drafts, establishes an authority in such person, conferred by the defendant, to draw for an amount unlimited.
    Where the acceptor of a draft notifies the principal or guarantor of the agent or drawer, of its acceptance, tenor and amount, by stating it at the ' foot of an account rendered on a settlement, before the draft is due, to which he makes no objection, and which is afterwards paid by the acceptor at maturity, he is bound to reimburse it, but without interest.
    Commission is a fair compensation for the use of the name and credit of the acceptor, but interest is not allowable on advances to take up an acceptance, where there is no agreement to pay any.
    Where the sum found by the jury is erroneous, and the error is rather one of law than of fact, which the record enables the court to correct, the case will not be remanded, but final judgment rendered.
    This is an action on a mercantile account stated, in which the plaintiff claims a balance due of four thousand one hundred and ten dollars and ninety cents, according to an account, annexed, for sundry acceptances, advances, commissions, and articles delivered, between the 18th June, 1831, and the 20th June, 1832, and also credits for proceeds of sales of sugar and molasses, during the same period, made on account of the defendant.
    The defendant pleaded a general denial, and especially denied the debits specified in the account annexed to the petition.
    He further avers, that the plaintiff had sold, for his account, sugar and molasses, from the 25th March, 1831, to the 12th June, 1832, the proceeds of which, amounting to the gross sum of nine thousand eight hundred and sixty-seven dollars and eighty-three cents, have passed into and still remain in his hands. He admits the plaintiff has purchased for him many articles, and made some payments on his account, but that there remains a balance in his hands of three thousand dollars, due this respondent, for •which he prays judgment.
    Upon these pleadings and issues the parties went to trial.
    The plaintiff supported his account by proof, but the jury, in making up their verdict, rejected the material item therein, (the amount of a draft) and rendered a verdict for only six hundred and thirty-three dollars and fifty cents.
    The rejected item consisted of a draft of three thousand and three hundred dollars, drawn by one Sewell Woolfolk on the plaintiff, and accepted by him the 10th June, 1831, payable the 11th March, 1832, together with eighty-two dollars and fifty cents, commission for the acceptance, and ninety-four dollars and ninety cents, interest, accrued since the payment of it.
    On a settlement between the parties, the 18th June, 1831, a few days after the acceptance of this draft, it was stated, in a memorandum at the foot of the account rendered to the defendant, to be under acceptance, and chargeable to him when at maturity, to which he made no objection.
    The authority of Woolfolk to draw this draft is alleged to arise from the following letter of the defendant:
    “ FRankliN, 13th March, 1831.
    Mr. Theodore Segond,
    Hear Sir: This will introduce to your acquaintance Mr. Sewell Woolfolk, who is now concerned with me in the planting business. I have given him a memorandum of such articles as I shall want shipped for the plantation, such as pork, oil, brick, kettles, and some other small articles, which he will purchase for me. I have instructed him to give orders on you for the same, which you will please to accept, &c. OWEN THOMAS.
    Addressed to Mr. Theodore Segond, New-Orleans.”
    ) 5
    This letter was produced as showing the authority to draw the draft, and the account rendered showed that the defendant was notified of it, and that he would be chargeable with it, to which he made no objection.
    The plaintiff’s counsel moved to set aside the verdict, and for a new trial, because the'jury erred in rejecting the amount of said draft, commissions and interest, and on the ground that the verdict is contrary to law and evidence. motion was overruled, and from judgment rendered, confirming the verdict, the plaintiff appealed.
    dit^ wrfttén the defendant, person to the plaintiff, as eon-¡n the planting-f”oSthe^ty where the latter purchases for ^®th Pfl“‘et!ons to draw on him, and requesting him (plaintiff) to pay his drafts, establishes an authority in such person, conferred by the defendant, to draw for an amount unlimited.

      Simon and Brent, for the plaintiff.
    1. Plaintiff is entitled to recover the amount of the draft of thirty-three hundred dollars, drawn by Woolfolk in the name of the partnership of Thomas & Woolfolk ; Thomas had recognized.him as his partner in his letters to plaintiff, and had authorized said plaintiff to accept drafts, for the benefit of the plantation; accordingly, Woolfolk drew the said draft of thirty-three hundred dollars, which was accepted, and afterwards paid by plaintiff.
    2. The draft was drawn on the 11th June, 1831, and on the 18th of the same month plaintiff and defendant made a .general settlement of their account; at the foot of the settlement the draft of thirty-three hundred dollars was carried as a memorandum, not being yet due, and a copy thereof'was delivered to defendant. Defendant made no objection, completed his settlement, and, for one year,after, continued to deal with plaintiff, to get advances from him, and to consign him his produce. From these facts, is it not clear that defendant approved and ratified the act of Woolfolk 1 Merlin, Question de Droit, vol. 1. Verbo Compte Courant, p. 488. 7 Martin, N. S. 140. Roman Pandects, v. 7, l. 50, art. 17, l. 60, p. 655. Ibid., lib. 14, art. 6, l. 16, vol. 2, p. 356.

      Brownson, contra.

   Martin, J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment of the District Court, disallowing the greater part of the balance of an account claimed by him. The part which was rejected consisted of a draft of three thousand three hundred dollars, with interest and commissions thereon, drawn on the plaintiff by Sewell Woolfolk, who is alleged to have been authorized to make it by the defendant.

Where the acceptor of a draft, notifies the principal or guarantor of the agent or drawer, of its 'acceptance, tenor and amount, by stating it at the foot ot an account rendered on a settlement, before the draft is due, to which he makes no objection, and which is after-, wards paid by the acceptor at maturity, he is bound to reimburse it, but without interest.

Commission is a fair compensation for the use of the name and credit of the acceptor, but interest is not allowable on advances to take up an acceptance, where there is no agreement to pay any.

This is resisted .by the latter, on the ground that Woolfolk was without proper authority. It appears, by a letter of the defendant, written to the plaintiff on the 13th day of March, 1831, that Woolfolk was introduced by-the former to the latter as concerned with him in a planting establishment, going to New-Orleans for the purpose of making purchases therefor, and directed by the defendant to draw on the plaintiff for such purchases. The letter concludes with a request to the plaintiff to pay his drafts. This certainly establishes in Woolfolk an authority to draw, without the amount to be drawn for being either limited or specified.

The draft objected to was accepted by the plaintiff the 10th June, 1831, payable the 11th March, 1832. A few days after the acceptance, the plaintiff rendered an account to the defendant, leaving a small balance in favor of the latter. The plaintiff noted,- at the foot of the account, two drafts of Woolfolk on him, which he had accepted, but which were not yet payable, without carrying out their amount in the outer column.

One of these drafts is the one under consideration. The defendant received the sum which the account showed to be due to him at the time of this settlement. It does not appear that he made any objections, then, to the acceptance of the draft in question by the plaintiff, on his account, or at any time, until after payment, and the amount thereof was charged to him in a new account.

It is clear that this silence precludes any objection now to the reimbursement of the plaintiff. Knowledge was brought to him of his agent having made the draft, and of its being accepted by the plaintiff, about nine months before it became due and payable. He ought then to have disclosed, any objections he had to its being paid on his account.

The commission is but a fair compensation for the use of the plaintiff’s name and credit, but there is no law authorizing a charge for interest in a case like this, nor is there a tittle of evidence of an agreement to pay any.

The jury, in'our opinion, erred in rejecting the plaintiff’s •claim to the amount of this draft and his commission thereon. As this is rather an error of law than of fact, and the record enables us to correct it, we refrain from remanding the case, as we did in the case of Hanse and Hepp vs. New-Orleans Insurance Company, ante 1.

Where the sum found by the jury is erroneous, and the error is rather one of law than of fact, which the record enables the court to correct, the case will not be remanded, but final judgment rendered.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and proceeding to give such judgment, as in our opinion should have been rendered in the court below, it is therefore ordered, adjudged and decreed, that the plaintiff do recover from the defendant the sum of four thousand and sixteen dollars, with costs in both courts.


text:
    PAIN vs. PERRET.
    Western DrsT.
    September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The wife can avail herself of her legal mortgage on property of her husband, situated in a parish where no record of it was ever made.
    The rights of the wife relating to her dotal and paraphernal property, stand upon the same footing as regards recording the evidence of them. Her legal mortgage attaches in both cases, without being recorded.
    This suit was instituted by Madame Framjaise Pain, wife of Ursin Perret, against her said husband, for a separation of property, and to enforce her legal mortgage for the restitution of her paraphernal property.
    The plaintiff alleges she intermarried with, the defendant, in the parish of St. Jean Baptiste, in 1816, and was the owner at the time, of a plantation, slaves, &c., valued at sixty-two thousand eight hundred and forty-seven dollars; that the next year the plantation was sold for the sum of thirty-five thousand dollars, which was received by her husband. That since their marriage the husband has sold slaves and other property of hers, which with the plantation amounts to forty-one thousand seven hundred and fifty-seven dollars. '
    p They subsequently moved to the parish of St. Mary, where her husband purchased the plantation on which they now reside, and removed her slaves and placed them thereon, to the number of thirty-six. These belong to her by right of inheritance from her father and mother.
    She further shows that her husband is much embarrassed; that several suits have been commenced against him, and she is apprehensive her paraphérnal rights and effects will be endangered, unless she is permitted to institute suit for a separation, and for the separate administration of her own property.
    She prays for leave to institute this suit, and that she have judgment for the sum of forty-one thousand seven hundred and fifty-seven dollars, or such sum as may be ascertained to be due to her; that.the negroes on the plantation of her husband be declared to be her separate property; and that she be allowed a legal mortgage on all the property and effects of her husband, for the restitution of her paraphernal effects, in preference to his other creditors; and that she have judgment for a final separation of property, with the entire control and management of it, without the interference of her husband.
    The defendant pleaded the general issue, and put the plaintiff on strict proof of her demand.
    Chalaron, and other creditors of the husband, intervened and made opposition to the claims of the wife, and averred that they were unfounded. They specially denied that she had any right of mortgage on her husband’s property, as none had been recorded in the parish where the parties resided. They pray that her demand be rejected, &c.
    Upon these pleadings and issues the case was tried before the court alone.
    The plaintiff supported her several demands by evidence, showing the amount of her property sold at different times by her, husband.

      The evidence also showed that the parties were married, and the wife’s property consisting of a plantation and slaves, inherited in the parish of St. Jean Baptiste. That the husband sold the landed estate, and removed the slaves to a sugar plantation, which he purchased in the parish of St. Mary. There was no record of any mortgage of instrument importing a mortgage in favor of the wife, recorded in the latter parish.
    The plaintiff had judgment for the sum of forty thousand one hundred and ten dollars, with a legal mortgage to secure the payment of thirty-five thousarid six hundred dollars, from the time when the husband received the proceeds of the plantation and other articles sold by him. This mortgage covered all the immoveable property of the husband; she was decreed to be the owner of the slaves in question, and to be separated in property and have the entire management of her own offects. The intervening creditors appealed.

      Brownson and Lewis for the plaintiff,
    contended that it was unnecessary to record the mortgage of the wife, given for the security of her paraphernal rights and effects ; that there was no, law' requiring it to be recorded, even to have effect against third persons and creditors of the husband. This mortgage is declared to exist by operation of law,-and grows out of the act done by the husband, and not an instrument of writing. The former cannot be recorded while the latter-can. 3 Martin, N. S., 239. 6 ibid. 544. 7 ibid. 69. 9 Louisiana Reports, 71.
    2. The provisions of the Louisiana Code, relating to this subject, evidently contemplate the recording of acts which are in writing, and expressly eicepts dower, which is constituted as such in an authentic act. These from their nature are susceptible of being recorded. The dowry act is excepted, no doubt, to give an additional privilege to the wife over other-persons, whose mortgages are susceptible of being recorded. See Louisiana Code, article 3297-8. -

      Simon, for the intervening creditors.

      The wife can avail herself of her legal mortgage on. property of her husband, situated in a parish where no record of it was ever made.
    The rights of the wife relating to her dotal ana paraphernal property,standupon the/same footing as regards recording the evidence of them. Her legal mortgage attaches in both cases without being recorded.
   Martin, J.,

delivered the opinion of the court.

This is an action for' a separation of property by the wife against her husband.' Several creditors of the husband and defendant, intervened in the suit who oppose the plaintiff’s demand, and are appellants from the judgment of separation of property obtained by the wife against her husband.

The only question which the case presents, is, whether ■ the wife can avail herself of her legal mortgage on property situated in a parish where no record of it was ever made 1

The Louisiana Code, article 3298, which dispenses with the recording of mortgages resulting from the dotal rights of the wife, does.not expressly dispense with the recording of mortgages resulting from paraphernal rights. It is difficult to discover any- difference between the claim of the wife resulting from these two different sources, and to say why the indulgence shown to her by the law, in regard to her dotal property, should not be extended to her in case of the paraphernal. The maxim ubi eadem est ratio eadem est lex, would lead to the conclusion that no difference exists. Do'tal rights necessarily resulting from an authentic act are always susceptible of being recorded. Paraphernal rights are hardly ever so. The husband often receives money produced by the use or. sale of the paraphernal property.; without this circumstance coming to the knowledge of the wife; and when it does, it is never, or seldom, that she is in possession of the documents, which are the evidence of her claim against- him. The law never requires what is vain or impossible. We therefore, conclude, that the rights of the wife relating to her dotal and paraphernal property, stand on the same footing as regards the recording the evidence of them.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, will! costs.


author: Martin, J.

text:
    PAIN vs. PLICQUE & LE BEAU.
    Western Dist.
    September, 1836.
    APPEAL EDOM TIIE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    A notarial act, which is not signed by the party to it in the presence of the subscribing- witnesses, making a renunciation of certain rights and mortgages, is not authentic, and will not bind the party thus signing it.
    An instrument offered, as, a notarial or authentic act, which proves to be incomplete as such, cannot be received as a private act between the parties, when the original is not produced.
    The notary who fails to receive and pass a public act, according to the provisions and formalities of law, is guilty of misconduct in office.
    This suit commenced by injunction. The plaintiff, Fransaise Pain, wife of Ursin Perret, alleges that she has instituted suit against her husband, for a separation of property, in which she claims as her individual and separate property, by inheritance from her father and mother, slaves on the plantation and now in the possession of her said husband, together with a large sum of money due from him, and that she has a mortgage on all the property in his possession for the restitution of her paraphernal effects.
    The plaintiff further alleges, that the defendants, Plicque &LeBeau, merchants, residing in New-Orleans, well knowing the nature of her claims, have caused to be issued an order of seizure and sale against said plantation and slaves, for a debt of her husband, amounting to the sum of fifty-five thousand dollars, which the sheriff of the parish of St. Mary is now about to execute.
    She further shows, that said proceedings have been instituted in virtue of a certain act, purporting to be an authentic act of mortgage, executed before Felix de Armas, Esq. notary public in the city of New-Orleans, and two witnesses, to which her name and that of her husband appears as a party thereto. But she expressly alleges, that said act is not authentic, nor was it executed or signed by herself and husband in the presence of two witnesses, as it purports on its face; that she was induced by fraud, surprise and deception, on the part of Plicque & Le Beau, to sign said act.
    She expressly alleges, that on the day said act purports to' have been executed, her husband and herself were invited to dine with the family of Mr. Le Beau, who resided over the counting room of Plicque & Le Beau, in the city of New-Orleans, and that a short time before dinner she and her husband were invited by one of the firm to descend into the counting room, where she found the doors closed and candles burning; and the persons present, as well as she recollects, were Felix De Armas, the notary, Plicque & Le Beau, and her husband. An act was produced, which she alleges was the one on which these proceedings were instituted, which was signed by her husband, and she was requested to sign it likewise, and did so, without hearing it read or knowing its contents, being assured it would not turn to her prejudice; that she retired as soon as she signed, and did not see the persons whose names appear as witnesses.
    She further alleges, that on examining said act, she finds many gross falsehoods and misrepresentation of facts; and among others, it is stated that the sum of fifty thousand dollars, for which this mortgage is drawn and given to secure payment, was money advanced for the price of the plantation on which they reside, and many of the slaves. She avers that said plantation was paid for from the funds received by her husband as the proceeds of sales of her own separate property, and which had been placed by her husband in the hands of Plicque & Le Beau. She expressly alleges, that by signing said act of mortgage, she never intended to renounce any privilege or mortgage she had on said property; that she was not informed that she had done so by the notary, as stated in the act, nor did she, knowingly, make any such renunciation ; nor did she declare, as stated in the act, that if she should claim her rights, in opposition to such a renunciation, she should not be ■ listened to in a court of justice, and no oath to that effect was administered, as is also, falsely set forth in said act.
    She further states, that the obligations stipulated in said acb as far as she is concerned, are null and void ; First, because she never, knowingly, consented to them ; Second, because her signature was obtained through fraud, surprise- and the deception of Plicque & Le Beau; Third, she was not permitted by law to contract, either directly or indirectly, for her husband; and as the obligations resulting from the renunciation have this effect, said act is null and void.
    The plaintiff prays, that Plicque & Le Beau be enjoined from further proceedings, under said order of seizure and sale, and that it be quashed and set aside, and that the said act of mortgage be forever cancelled and annulled.
    The defendants pleaded a general denial, and averred, that the allegations in the petition are false and unfounded. They further state, that the said act of mortgage is valid and binding on the parties to it; that the renunciations and stipulations in said act are such as married women are permitted to make, and especially the stipulations and renunciations relative»to • the alienation of paraphernal property and of the right of mortgage. They pray that the injunction be' dissolved, with damages and costs.
    In an amended answer, they aver, the plaintiff ratified the acts of mortgage, by consenting to the sale of many of the slaves mentioned in it.- ,
    The case was tried before the court on these pleadings and issues.
    The mortgage upon which the proceedings were commenced in the via executiva embraced the plantation and all the slaves of the husband and wife, in Attakapas, and contained the following stipulations and clauses, viz.: _
    This act, passed before Felix De Armas, notary public in and for the city of New-Orleans, and two witnesses, the 5th of April, 1831, in which Ursin Perret and wife acknowledge themselves indebted, in solido, to-Plicque & Le Beau in the sum of eighty thousand dollars, which they declare they have employed in part payment of the land forming their plantation (as afterwards specified) and in the payment in casb of a great part of the appurtenances, and for the purpose of putting it in perfect order as a sugar plantation. Perret and wife bind themselves, in solido, to reimburse that sum to Plicque & Le Beau, or to their order, in all the month, of March, 1833. In order to facilitate Plicque & Le Beau in negociating this debt, they make and subscribe fourteen promissory notes, payable as above, at the counting house of Plicque & Le Beau, in New-Orleans, to the order of Pajot Perret, and by bim endorsed in blank, amounting to the aggregate sum of eighty thousand dollars, which notes are paraphed by the notary to secure the faithful payment of that sum, and an eventual interest of ten per cent., as agreed between the parties, upon such of the notes as shall not be paid at maturity. Perret and wife bind themselves, in solido, to insure' the payment and reimbursement' of all such expenses, fees, and other disbursements of any nature, which may be incurred by Plicque & Le Beau, and to secure payment, as well interest as capital, mortgage and hypothecate the plantation and slaves specified therein. ' The property is declared to belong to Perret and wife, who agree not to alienate the same to the prejudice of this mortgage. In case of non-payment of said sum, Perret and wife authorize Plicque & Le Beau to sell, in whole or in part, the mortgaged property, under such clauses and conditions, and in such manner and form as they may think proper, in order to pay themselves; which special power, thus given, they declare irrevocable, except by the consent of Plicque & Le Beau. Madame Perret, still assisted and authorized by her husband, having declared to the notary that it was her intention to renounce the mortgages, privileges and other rights which she has or may have upon the mortgaged property, in order, that in case of non-payment, in whole or in part, of said sum or notes for eighty thousand dollars, the said property was to pass, free of any right to be established in her behalf, either in the hands of Plicque & Le Beau, if they should become purchasers themselves, in virtue of the special power hereby conferred, which power is declared to extend to that, or in the hands of any other person. The said notary informed her, that according to the laws of the state, the wife has a tacit mortgage on the immovable property of her husband: r J
    . . . . First. For the restoration of her dower, or lor replacing her dotal effects which she brought in at the time of the marriage.

      Second. For the restitution or replacing her property, acquired during marriage, by succession or donation.

      Third. To indemnify her for her debts contracted with her husband, as well as for the replacing her own proper effects.

      Fourth. As security for the obligations of her husband, in case he has enjoyed the paraphernal property of the wife, or to reimburse the price, in case of alienation by the wife, with the consent of the husband, and of which he had received and profited by the price, which rights cannot be alienated without a special renunciation: said Madame Perret acknowledging herself perfectly informed of the rights which the law accords her upon the property of her husband, declared that she persisted in her intention, and that, of her free will, she formally renounces, as well for herself as for her heirs, etc., all tacit and legal mortgages which the law accords to her upon the aforesaid property whatever, arising from dotal or paraphernal rights, and that she transfers and conveys to Plicque and Le Beau all her said rights and others of every nature whatever, subrogating them in her rights and actions, etc.
    She further declares, if, notwithstanding this formal renunciation, she should ever claim against its effects, she desires not to be listened to in courts of justice, and, under this protestation, she took an oath before the notary, and under oath declared, that she had not been intimidated, persuaded, nor coerced by her husband, nor by any other person, but, on the contrary, that she subscribes it freely and spontaneously, considering that the moving cause, which induced her to sign, is, that the contract cannot fail to turn to her advantage; and for greater security for the execution of this contract, she further swears to observe it, in all its forms and tenor, notwithstanding any dispensation which may be accorded to her.
    This act was made and passed in New-Orleans, at the office of the notary, in the presence of Felix Percy and Jules Mossy, competent witnesses, who signed with the parties and the notary, after reading it. Signed by Ursin and Madame Perret and the other party, and by Felix De Armas, notary public.
    The testimony of the notary who drew the act of mortgage was taken on commission, and read as follows:
    F. De Armas, notary public, says, the act of mortgage was written at the request of Mr. F. N. Plicque, one of the defendants; that it was signed by the plaintiff, (Framjaise Pain,) at the counting house of Plicque and Le Beau, about three o’clock, p. m. ; that the two subscribing witnesses to the said act, were, at the time of its execution, employed in witness’s office; that they were present at the passing of said act, but witness thinks, and is certain that they were not present at the signing of it by the plaintiff; that F. Nuna Plicque was present when the plaintiff signed it, but, he cannot say what persons were present when the subscribing witnesses signed it, and does not recollect what persons were present when the plaintiff consented to the passing of said act.
    Witness says, the plaintiff was, previously to the drawing of said act, apprized by him, as notary, of the consequences of signing said act, but she insisted on its execution. He further states, that the plaintiff did not give him any instructions as to the stipulations or renunciations which the act was to contain, but that he received them from Mr. F. N. Plicque and from U. Perret, her husband, and had orders to draw the act in the manner which he should deem proper and binding on the parties. He further states, that he prepared the act at the request of Plicque and Perret, and nobody else; that the conditions under which the said act was to be executed were given to him by Plicque & Le Beau, but they left to him the manner of drawing it up, so as to render it obligatory; that he read to the plaintiff, in a clear and distinct voice, as respects the obligations by her taken and the renunciations to be made by her, but he believes that he did not read the names of all the slaves and the description of the plantation, but only staled to the plaintiff the objects contemplated were the slaves and plantation belonging to her and her husband. He did not think it expedient to read the act through to the plaintiff, because she and Plicque told him it was unnecessary, they being both informed of its contents; that the glass doors of Plicque & Le Beau’s counting house were closed at the moment he went in, for fear of being interrupted; that the back part of the room being very dark, two candles were furnished; that the husband was not present when plaintiff signed the act; witness examined her apart from her husband, touching said act, and particularly at the time of signing it. He was informed by Plicque and by Perret, the husband, that the debt acknowledged in the act was due to the defendants by Perret, for slaves and land by them paid for, and for which Ursin Perret had given his notes, which land and slaves formed a part of the plantation and slaves mortgaged in said act; understood from Plicque and U. Perret that no part of the property mortgaged belonged to the plaintiff, but to the community existing between the plaintiff and her husband; that the signature of plaintiff to said act was not considered by witness as rendering her responsible for the payment of the debt, but only taking her legal renunciation to her rights upon said property.
    Witness states, that Plicque told him that the sum of money, loaned previously belonged to absent persons; that the said money had been, for a long period of time, yielding interest yearly; that Perret was not to be considered as an active partner, and for this reason, and also, for the better securing of the rights of the persons who had confided to his partnership said rights, he had determined to ask for a mortgage.
    Witness states, that plaintiff was not sworn, as stated in the said act, nor before any other person, &c.; that in the act it was stated that she was sworn, because witness believed that her signature to the said act obligated her as ■effectually as her oath ; that there was no attorney appointed in the case, and that the statement of said oath, put in the act, was not at the special instance and request of one or both of the defendants, but that the binding clauses, were left with the witness to insert.
    Witness says, Plicque told him how much the interests of their constituents were exposed, in default of a mortgage, because Ursin Perret owed them a considerable sum of money, and that, in case of his death, his wife had large claims for her dowry, or other privileged rights; that witness, after receiving the said memorandum to draw said act, told Perret that he considered the plaintiff, (wife of Perret) if she signed the act, as ruined! But Plicque, from what Perret had told him and witness, informed the latter that he was persuaded that Perret could meet his payments; that, at all events, plaintiff was so much attached to her husband that she would submit to the consequences.
    The depositions of Felix Percy and Jules Mossy, who signed the act of mortgage as witnesses, tvere also read. They testified they never saw the plaintiff, (Madame Perret,) sign the act of mortgage, but that they affixed their names as witnesses after it was brought to Mr. De Armas’ office. They do not know where the act of mortgage was signed by the parties. Neither of them ever saw the plaintiff, and were both unacquainted with her signature.
    The district judge was of opinion that the renunciations of the plaintiff, contained in the act of mortgage, were null and void. Judgment was rendered perpetuating the injunction, and that the said act so far as regards the plaintiff, be cancelled and annulled, and the order of seizure and sale quashed and set aside. The defendants appealed.

      JSrownson and Lewis, for the plaintiff.
    1. The act of mortgage in this case comprised the plantation, as well as all the slaves, both those which were the property of the husband, and thirty or forty which were the separate property of the wife. It was dated the 5th April, 1831. Subsequently and before suing out this order of seizure, the defendants sold all Perret’s slaves, and realized thirty-four thousand two hundred and ninety dollars, which left fifty-five thousand dollars of the mortgage debts still unpaid. They were proceeding to sell the remainder, and take the last vestage of the wife’s property to pay the husband’s debts.
    2. This mortgage is void, so far as regards the wife, because she cannot bind herself in solido with her husband, and as surety for the payment of his debts; nor can she bind herself jointly with him, unless it be shown that the contract turned to her benefit or advantage; and receiving the money contracted for, is not evidence of such advantage or benefit. Louisiana Code, 2412. 7 Martin, JV. S., 65 and 487. 5 Ibid., 431. 4 Ibid., 389.
    3. The act is null and void as regards the wife, because it wants the formalities and some of the requisites to become an authentic act. It was not signed in the presence of the witnesses. The want of these formalities may be shown by parole testimony. 8 Martin, JV. S., 693. Louisiana Code, 2231. 1 Martin, 294.
    4. The renunciation by the wife of her right of mortgage, is null, because it is an indirect mode of becoming surety for a debt of her husband, by ceding her rights and property to secure and make payment of her husband’s debts. 7 Martin, JV. S., 343. 5 Ibid., 54.
    5. The renunciation of the wife is without effect. The mortgage and renunciation of the wife, to give effect to it, are obligation's accessory to the principal obligation, which was to pay- the debt. And if the principal obligation be void, the accessory must fall with it.' 4 Louisiana Reports, 326. Louisiana Code, 3245, 3251, 3252.
    6. The principles decided in the case of Tremé vs. Lanaux, 4 Martin, N. S., 230, relied on by the defendants, are not irreconcilable with those which we contend should govern this case. In that case the wife did not bind herself for her husband; but only postponed her mortgage on the community property, to enable her husband to raise money on notes endorsed by the mortgagee. In this the wife is bound in

      solido with her husband, and grants a mortgage on her own individual property, and renounces her legal mortgage to secure the principal obligation. .

      Simon, for the defendants. .
    1. This case involves the marital rights of the plaintiff, as wife of Ursin Perret. They were married in May, 1816; consequently the laws existing at that time must govern, and not those subsequently passed, in relation to the real rights of the spouses, and their contracts or acts passed concerning those rights. A hypothecary alienation, or a renunciation to a mortgage on the part of the wife, are contracts made in relation to her real rights. Marriage is a civil contract. Laws prescribe for the future, and have no retroactive effect. Louisiana Code, article 87. Ibid. 8.
    2. In France it is established that the provisions of the Napoleon Code, do not govern the pecuniary rights of persons married previous to its enactment. Merlin’s Repertoire, verbo Puissance Maritale, section 2, article 2, Mo. 19. Questions du Droit, verbo Regime Dotal, section 1, No. 1. Ibid. Villeien, section 3, page 361. Grenier Hypoth'eque, vol. 1, Nos. 239, 261. Sirey, Code annoté, or article 1564, Nos. 1 and 27. Paillet, or article 2d of Napoleon Code. Duranton, vol. 1, No. 52. Merlin’s Questions du Droit, vol. 5. Verbo Regime Dotal, section 2. Dalloz, vol. 20, page 129, and following Nos. 12, 13,'14, 15 and 17. Sirey, vol. 7. Part. 2, page 348. Ibid., vol. 9, 2, 327. Ibid., 1832, 2, 156, 1833, 2, 489. 8 Martin, N. S., 192.
    3. When capacity to contract is once acquired under a law, no subsequent law can take it away. It is different, when on the contrary a new law gives capacity.
    4. Under the existing laws in force at the time of the plaintiff’s marriage, she could have validly renounced to her priority of mortgage, in favor of a third person, and even a creditor of her husband. Partida 3, title IS, law 58. Such a renunciation was not an act of suretyship; it is, therefore, binding in this case. 4 Martin, N. S., 230, 629.
    5. Under the new code itself, supposing it should govern the present case, nothing preyents the wife to renounce to bet'mortgage or priority of mortgage in favor of a third person, and she does not thereby become security for her husband. The right of mortgage, as claimed by plaintiff in this case, is a right specially established by law in favor of married women, and under the 11th article of the Louisiana Code; such rights or privileges can be renounced by the individuals for whose benefit such loans were made. In this case, all the property of the wife, all her rights against her husband, are paraphernal. Cannot she dispose of her para-phernal property ? She undoubtedly can, with the consent of her husband. Louisiana Code, articles,367. With his consent, she is even permitted to dispose of her property gratuitously. Ibid., 1467. But, it will be said, that when she alienates her property for the benefit of, or in relation to obligations contracted by her husband, she becomes incapable, under article 2412. How does she become incapable? Are not married women capable of contracting, unless specially declared incapable by law, and are there no means of removing the incapacity of the wife? Ibid., articles 1775, 1779, 1784. This last article shows the incapacity of the wife only in relation to her becoming security for her husband. Well, in this case, do we consider her as security ; did she become in any way obligated to the defendant? Do we seek to enforce any,-contract of suretyship? What is the definition of surety--'•sfi'ip;?, Ibid,., article 3004. Can it be said that she is without this definition ? No; the only obligation that we seek to enforce agidnst her is an obligation not to do, and not an obligation? to pay us any thing, either for herself or for apother. ¡ The stipulation contained in the act of mortgage is nothing but an alienation of her paraphernal rights, so far 'as they may be conflicting with the rights of the defendant; it is a simple renunciation to her priority of mortgage, and this is certainly warranted by law. The ancient laws of the land, under which the case of Tremé vs. Lanaux, 4 Martin, N. S. 230, was decided, were as severe as the new. ones in relation to engagements of married women for their husbands, (2 Martin, N. S. 39. 5 Ibid., 431. 7 Ibid., 252. 8 Ibid., 415) and still this court has repeatedly maintained such renunciations as the one in question.
    6. It has been said, that the act attacked in this suit contains an obligation, in solido, by which the wife obligated herself to pay the sum due to defendants. Defendants do not contend that said obligation is binding on her, nor do they seek to enforce it. The renunciation of Mrs. Perret is the only stipulation which they rely upon, and this is very distinct from the obligation in solido. The act may be bad for one purpose and good as to the other ; the stipulations and obligations contained in the act are not so connected together that one cannot exist without the other; on the contrary, they áre entirely distinct, and if we set aside the obligation, in solido, still the renunciation to her priority of mortgage will remain, and ought to have its full effect. 4 Louisiana Reports, 423.
    7. But it has been further said, that the renunciation of the wifé to her right of mortgage is a derogation from the laws made for the preservation of public order and good morals.' Plaintiff’s counsel, in support of this position, has relied on 1 Toullier, 87; let me refer the learned gentlemen to the same work, No. Ill, pages 91 and 92; Duranton, vol. 1, No. 110. I do not see in what manner public order and good morals may be in the least connected with, or affected- by the renunciation made by a married her priority of mortgage, nor in what way such re can be contrary -to the public good. Est regula j. omnes licentiam habere, his quce pro se introducta sih tiare. L. 29, Code de Practis. The right of legal is established for the special benefit of the wife; a under the article 11th of the Louisiana Code, s renounce to the laws made for her exclusive benefit protection.
    8. The wife, under the old and hew codes, may alienate her paraphernal rights and property, with the consent of her husband ; why, again, could she not renounce to the mortgage that secures those rights 1 Can she do more and not less. Persil Regime Hypoth. vol. 1, pages 305-6, on article
      2121. Ibid., 468, article 2144. 12 Toullier, No. 13. Volume jy’g. JY4.
    9. As to the formalities of the act, it has been said that the act in which the renunciation is contained is not a public ac^ hut only an act under private signature. I contend, that the formalities of an act are to be governed by the laws existing at the time it is passed. In 1831 the law did not require that an act of mortgage, or of renunciation to a mortgage, should be made by an authentic act; an act under private signature is sufficient. Let us suppose the act in this case not to be authentic, but only a private signature one, is it not a principle of law that “the forms of acts are regulated by the laics in force at the time they are passed” ? The act under private signature has the same force between the parties as a public act. Louisiana Code, articles 2232, 2233, 2235 and 2239. All sales of immovables or slaves may be made by authentic act, or by act under private signature, {Ibid., article 2415) and the recording is only required with regard to third persons. Ibid., 2242, 2417. The wife may then sell her paraphernal property by act under private signature, and, a fortiori, she may renounce to the mortgage that secures her paraphernal rights, or give a mortgage on her paraphernal estate. Authentic acts are only necessary to be passed in the cases specially required to be so by law. Ibid., 2237. Exceptions are pointed out in the code, {Ibid., 1523, 1010, 2384, and others) and this is not one of them.
    10. The mortgage of the defendants, in this case, ought to have the preference over that of the wife, whose rights are paraphernal and not dotal, the acts constituting the pretended mortgage having never been recorded in the office of the judge of the parish of St. Mary, or any where else, and that, is particularly required by the code. The mortgage of Mrs. Perret is subject to be recorded, otherwise she has no mortgage. Let us remember that her rights are paraphernal, and not dotal; (this will be conceded) a mortgageonly takes place in such instances as are authorized by law. Louisiana Code, article 3250. No legal mortgage exists, except in the cases determined by the code. Ibid., article
      3280. Which ave the mortgages of the wife ? Ibid., 3287. From what day is the mortgage to take effect % Ibid., 3297. The legal mortgage of the wife, with regard to her dot only, exists without its being'recorded. Ibid., 3298. The law requires the husband to cause the acts to be recorded only with regard to the dowry or dot. Ibid., 3303. How is a legal mortgage acquired? Ibid., 3314. Legal mortgages must be recorded. Ibid., 3317. The recording must be made in certain places. Ibid., 3318. From the above articles, it is clear that the mortgage of the wife, to secure her paraphernal rights, must be recorded. Since she has the administration of her paraphernalia, she is presumed to have all the title papers relative thereto in her possession.
    11. In vain will it be said, that this mortgage, under the old law being called tacit mortgage, existed without recording, and that the new law cannot, in any way, impair the said right of mortgage. Recording is a formality which is to be complied with, to preserve the right; inscription est me formalüé conservative du droit d’hypothhque; this formality, required by a new law, ought to be fulfilled, and this cannot be considered as giving a restrictive effect to the law. Sirey, vol. 1, 269. Ibid., part 1, 227. Massé, vol. 1, page 311, JVo. 191. Ibid., 333, JVo. 200. Ibid., 339, JVo. 206. Ibid., 373, section 9. 3 Martin, JV. S. 468.
   Martin, J.

delivered the opinion of the court.

The defendants are appellants from a judgment which perpetuates an injunction procured by the plaintiff, staying all the proceedings on an order of seizure and sale obtained by them, against a certain plantation and slaves mortgaged to them by the plaintiff’s husband.

Her pretensions are resisted, on the ground, that she intervened in the act of mortgage, and duly renounced any claim she might have on'said property, for the security of her dotal and paraphernal rights and effects.

The notary before whom the act of mortgage was passed, has been examined, and deposes, that the plaintiff signed the act of mortgage at the counting house of the defendants, out of the presence of any witnesses, in a dark room, with the doors shut and candles lighted.

A notarial act, ’which is not signed by the party to it in the presence of the subscribing -witnesses, making a renunciation of certain rights and mortgages, is not authentic, and will not bind the party thus signing it.

An instrument offered as a notarial or authentic act, which proves to be incomplete as such, cannot be received as a private act between the parties, when the original is not produced.

The notary who fails to receive and pass a public act, according to the provisions and formalities of law, is guilty of misconduct in office.

The record shows the plaintiff’s claim against her husband and her legal mortgage on the premises, according to the allegations in the petition.

It is clear, that the renunciation which is opposed to the plaintiff is not legally established. The act which is said to contain it is not authentic, because her renunciation in said act was not received in the presence of two witnesses. We have not examined whether this act may be opposed to her as an act sous seing privé, because it was not urged; and the District Court could not have acted on such an instrument without the production of the original; and the absence of a bill of exceptions cannot be imputed to her, as the copy presented to the court purported to be that of a notarial act.

The flagitious candor with which the notary has admitted that he attested a fact which he knew to be false, is well calculated to give rise to very painful sensations. The people will feel alarmed, uneasy and insecure when they receive so irrefragable a proof of such misbehavior, in an 'officer entrusted to receive and preserve the muniments of their titles.

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

Note. — The following clause in the foregoing opinion of the court, was stricken out before it was read ; the judges being unable at the time to turn to the legislative enactment concerning notaries referred to.

“The dereliction of duty evinced in this officer, would have induced the court to exercise the power apparently vested in it by the legislative act of- -- and speedily to remove him from office, had we not been satisfied, that the legislature in passing the act, required of us the exercise of original jurisdiction, while the constitution has expressly said, our jurisdiction is appellate only.”

The act referred to was passed the 20th March, 1813, and provides, that notaries public “ may be suspended by the Supreme Court until the next meeting of the legislature, whenever, after a summary inquiry before said court, it shall appear that there exists just cause of reproach against their conduct.” 1 Moreau's Digest, page 18.