
    
      LAFARGE vs. MORGAN & AL.
    
    East'n District.
    
      May, 1822.
    Conventional sequestrators, acting without compensation, are subject ⅛ ganons asdepo-
    appears fjom the facts, in the cause, that they were agents for both parties, then duty was to bold the object placed in their care, un-tii both ed it should be given up, or a court of decided which had the better
    A person, who receives iy to keep without reward, is responsible only for gross gence in keeping it, or fraud in refusing to give á up.
    a received notes drawn by b, in favour of C, and by the terms of the contract, was to deliver them to the payee, when certain incum-p^perty°forhe wae¡rs! g ¿att*of dehver.th®m’^
    
    
      Appeal from the court of the first district.
    Hennen, for the defendants.
    On 26th March, 1821, the plaintiff sold to S. Packwood, a plan-1 1 tation in the parish of Plaquemine, “ with the 1 1 warranty fas the deed declares) of all debts, gifts, mortgages, evictions, alienations, & other incumbrances whatsoever.” The certificate Gf the recorder of mortgages, however, pro- ° ° r duced at the time of sale, shews that the plan-1 tation was subject to an incumbrance in favor ° Gf Albin Michel and his wife, of $55,000; t0 a general mortgage in favor of a ° s s judgment creditor, to the further amount of ° $1021 87 cents. The vendor declares in the deed, he had already paid $22,666 66⅜ ^ 1 ° of the sum of $55,000, leaving due to ° Michel and his wife, only the sum of $32,333 J cents: and the other mortgage of $1021 0 f ° ° 87 cents, he obliges himself to cause “ to be 0 cancelled as soon as possible.” Nothing is said relative to the cancelling of the mort-v wage of $55,000; nor on the sub ject of that & J part of it, which Lafarge declares, had been 1 paid by him, to A. Michel and his wife, who ' were the vendors of the plantation to him.— At the time of purchase of this plantation, (26th March, 1821,) by S. Packwood, there was pending, and now is pending, a suit instituted by John Lafarge, against A. Michel and his wife, for the purpose of obliging them to raise the mortgage of $55,000, reserved by them on this plantation, to the extent oí $22,666 66f cents, then paid as the vendor declares; the record of this suit was given in evidence at the trial, and now forms part of the statement of facts. The pendency of this suit was notice to S. Packwood, of the controversy be-tw^een his vendor, and Albin Michel and his wife, relative to this mortgage on the plantation, now about to be purchased by him.— By law he was required to take notice of the J l suit. JYcwland, 506, 3 Martin, 393. And what 77 7 the law required him to take notice of, he ac- * 7 tually knew. Further, S. Packwood was * 7 bound to look at the conveyance of this plantation, made by Albin Michel and his wife, to the plaintiff; for in the deed made by the ter, reference thereto is had in express terms. 7 * Notice of the controversy between the plain-J r tiff, and A. Michel and his wife, and of the 7 7 contents of their deed to him, are brought 7 n home directly to S. Packwood. Under these circumstances, and with these facts, even the ... . plaintiff himself did not require S. Packwood to part with the endorsed and negotiable notes had been agreed upon, as the price of this plantation: “ he agreed,” to use his own words, “ that he would deposit with the defendants a like sum in the said notes.” For what purpose this deposit was made, the receipt of the defendants will shew. It is in the following words:—
    
      ^“ctiheeevl“
    1S "ot suffi.cient to destroy its ®5e.ct?,t0 Bhew that it was record?d °n.ir' regular testimo-
    . Unless mar-nage contracts ""j®r affecl third
    !t 1S i101 "e‘ cessary for the vah<üt{ of a ve-nunciation by a mamed w°man at a sale of her p.rop®ity’ thftk should be done under oath’
    
      “Received, New-Orleans, March 26, 1821, of J. Lafarge, the notes of S. Packwood, endorsed bj G. Dorsey, to the amount of fifty-five thousand dollars. The same being part of the notes mentioned in the bill of sale, of a plantation sold by Lafarge, to S. Packwood; held until the mortgages on said plantation are raised by said Lafarge, and when the said mortgages are raised, the notes to be restored to Mr. Lafarge. But the notes to be returned in proportion as the mortgages are raised, so that no more in amount is to be retained, than remains of the mortgage uncancelled.”
    Five days after the date of this receipt, the defendants, the depositories, were required by the plaintiff, to deliver up to him $38,633 33⅛ cents, of these notes, which they refused to do: and thereon he instituted against them this suit; averring that they had not performed the condition of the deposit, which they undertook when the said notes were deposited in their hands; and for the violation of the trust of deposit on their part, he avers he has suffered damages to the amount of $10,000, for which he claims a judgment; and at the same time, prays that the notes may be restored to him.
    They answer, and confess, that the receipt was given by them, and that they hold the notes mentioned in it; but considering themselves as stakeholders, or depositories, both of J. Lafarge and S. Packwood, they cannot give up the notes until the plaintiff has complied with his agreement to cancel, and raise the mortgages on the plantation. And as S. Packwood had previously notified them not to hand over the notes, inasmuch as he considered the incumbrances as still existing on the plantation, they answer, that in discharge of their trust, as depositors, they cannot yield up the notes, but with his consent. They deny all the other allegations of the petition of J. Lafarge, and put him upon the strict, full and legal proof thereof. S. Packwood, being made a party to the suit, by the answer ° f J J of these defendants, avows that he gave the aforesaid notice to them; and avers that the mortgages existing on the plantation, at the time of purchase, still remain in full force; and therefore, that they are bound as depositories to return the notes, and that the plaintiff has not a right to demand them until all mortgages and incumbrances are raised.— Such is an abstract of the pleadings on which the parties went to trial; and the defendants having been condemned by the jury, in direct violation of the charge of the court, have appealed to this court for redress.— A statement of all the evidence given to the jury accompanies the record, and on it this court is called upon to pronounce.
    As the plaintiff has chosen to resort to the defendants alone, without making S. Pack-wood a party to his action, it is requisite that the court shoulcf investigate attentively the character in which they stand in this transaction. They aver that they have no interest whatever in retaining the notes; and it clearly appears from the evidence, that it' is a matter of total indifference, as far as regards them, into whose hands those notes may be placed. They are not entitled to any com- . mission or charge for their trouble or responsibility in keeping the notes; the undertaking, therefore, on their part, was gratuitous. The plaintiff in his petition, has repeatedly styled their undertaking a deposit. What was the nature and kind of this deposit, then becomes an important question, preliminary to every other enquiry. Our Civil Code, 411, considers deposits as of two general kinds: the deposit, properly so called, and the conventional and judicial sequestration. The present deposit, with the defendants, was the result of an agreement, as the plaintiff states in his petition; and was to serve as a security, that the mortgage of $55,000 should be cancelled. This agreement could have been made with no other person than the purchaser of the plantation, and this security must have been for his benefit alone. The defendants were not interested in the transaction, were mere stakeholders; or in the language of our Civil Code, they were conventional se-questrators. The two parties, then to this agreement of deposit, were the plaintiff and S. Packwood, the purchaser of the plantation : and this, the plaintiff had agreed to do in order to afford S. Packwood, his vendee, a security for quiet possession, and to comply ^ie general guarantee in his deed,. against uap debts, gifts, mortgages, evictions, alienations, and other incumbrances whatsoever.”
    Having then conclusively settled the relative situation of the contracting parties, as respects this deposit: the next inquiry will naturally be into the nature and extent of the undertaking assumed by the defendants, when, as depositories, or conventional sequestrators, they receipted for the notes. In the words of the receipt, the notes were to be held until the mortgages on said plantation are raised, “ and when said mortgages are raised, the notes to be restored,” but the notes to be returned “ in proportion as the mortgages are raised.” The notes then were not to be returned so long as mortgages to the amount of $55,000 should incumber the plantation, and not be raised; but whenever J. Lafarge should raise the mortgages then incumbering the plantation, below the amount of the notes deposited, then no more of the notes were to be retained than should be sufficient to serve as a security for the mortgages remaining to be raised: so that if at any time it should appear that the plantation remained incumbered only with a mortgage of $30,000, then $25,000 of the notes should be given up to J. Lafarge; and so on, in proportion.
    But who was to be the judge, or to decide when the mortgages had been raised, according to this agreement made by J. Lafarge with S. Packwood, for his security against the incumbrances which were known to exist at the time of purchase? Assuredly the depositories, the defendants, never intended to take such responsibility on themselves. Nor is there any thing to countenance the supposition that S. Packwood ever intended to trust to their judgment on a point of so much importance to himself; a point which might require a profound knowlege of the very intricate law of land titles in this state. But there is evidence before the court amply sufficient to shew that both parties contemplated a decision by a court of justice on the subject of the claim of Madame Michel on this plantation. For, at the time of purchase, such suit was pending. Evidently then, until S. Packwood should express his consent, the defendant could not, with propriety or justice, hand over the deposit, or any part of it, to J. Lafarge, They have professed, on the record, their willingness to do so; but this, far from satisfying ^ plaintiff^ is considered as a ground of complaint against them. But let us examine what duty the law imposed on these conventional sequestrators, when the vendor demanded the notes, and the purchaser notified them to retain them. It was then, I assert, their duty to refuse them: their duty to hold them as they have done : and I trust this court will support them in this course of conduct. In the case of a deposit, properly so called, where the depositor voluntarily, for his own benefit only, makes the deposit; and not as in the present instance, for the security of a third person, in compliance with an agreement; that is in the common deposit, no restoration can be required where there has been an attachment on the property, or an opposition made on the owner. Civil Code, 415, art. 25. Now here, prior to the institution of the suit, an attachmentfor $25,000 and upwards, was laid on these notes by a creditor residing in New-York: and moreover, an opposition was made by S. Packwood, to any disposal of them in favor of the plaintiff. But the obligation of the defendants, as conven-iional sequestrators, was still more formal and express. The notes, by agreement of plaintiff, had been placed in their hands for the security of S. Packwood, and, therefore, they could not, in defiance of his opposition, deliver them to J. Lafarge, when the difference existing between the two parties interested remained undecided. The one contending that he had raised the mortgages; the other maintaining that they were yet in full force. Civil Code, 419, art. 40. Ferrari's Bibliotheca, verbo “ Depositum,," n. 4. Partida, 5, 3, 5. 1 D'Espeisses, 240, n. 29. Pothier's Pandects, 16,3. sec. 3.
    Without pursuing the defence further, I might rest the case of the defendants here. For, it appears that they have complied with their obligation, in refusing to part with the depo-' sit. Whatever may be the claims and preten-tions of the plaintiff, it is not against the defendants that they are to be urged. He mistook his action most eggregiously, when he attacked the depositories. Against S. Pack-wood, his real adversary, should he have instituted his suit, if he intended fairly to come at the merits of his claim.
    Let us, however, suppose, for the sake of argument. that the plaintiff had satisfied S. Paek- . . wood, his vendee; that his plantation w as un-incumbered ; that the defendants, without any escUge. had violated the contract of deposit, and refused to deliver up the notes; what, in such case, could have been the remedy of the plaintiff? To make the case stronger against the defendants, let it be granted that these notes, none of which are yet due, and some will not be due until several years, were money. Nothing more could be recovered than the amount of the notes, $55,000, with judicial interest, at the rate of 5 per cent, per annum, from the day of the institution of the suit. Civil Code, 41, art. 18. To the restitution of the capital only with interest, could the defendants be compelled; and in no case w ould they be responsible for any damages which the delay of payment might cause the depositor. But here the notes deposited, none of them yet due, are-held by the defendants, ready to be produced whenever they can part with them without risk. They undertook a friendly office towards both parties; a gratuitous office which should never be the cause of damage to them, while acting with good faith. Partida, 5, 3, in proemio. Partida, 5, 3, 
      JO, note of Lopez, n. 3. Offrcium suurn non debet . ... esse depositario damnosum. But, using the. utmost severity of the law against them, under the facts presented by the evidence, taken in the most unfavorable view, the defendants cannot be condemned to pay damages, and also to the restoration of the notes. Where the thing deposited produces fruits, both the deposit and the fruits are to be restored; where money has been deposited, interest and the capital shall be paid, but no damages. Only in case of the loss of the thing deposited, through gross negligence, can damages be claimed; and then only as a compensation for the value of the deposit. Civil Code, 415, art. 18. 1 IP Espeiss.es 232, n. 8. Institutes Justin, lib. 4, tit. 6, liv. 17, with the gloss. Dig. 16, 3, 1, sec. 1,2 and 4. Pothier's Pandects, 16, 3, n. 51. But where the deposit is ready to be produced, and can be restored unimpaired, the depository can be*condemned to the restitution only (in simplum .actio depositi datur contra de-positarium) with costs of the suit. This principle of law is fully established by the authorities lastquoted : they were read and insisted upon at the trial of this cause, and the plaintiff’s counsel was invited to confute the prih-ciple, if in Lis power: or to produce a single r r . s authority, where the depository, in the voluntary deposit, when he confessed the deposit anj it ready to restore, could be condemned both to the payment of damages and the restoration of the deposit. This he has not done. after a month's leisure for the purpose. In fact, the principles of the Roman law, following professedly the law of nature, are too well established on this point; and it is in vain for the gentleman to attempt to shake them by ridicule, argument, or broad assertion. For Iraud only is the depository answ erable; on that ground only does the law give an action against him. And so far is this principle carried, that if the depository should deliver the thing deposited, into the keeping of a third person: and through the fraud of the latter, it should be lost, in such case the original depository would be discharged of all responsibility towards the depositor on ceding his action against the third person. Digest, 16,3, 16, with the gloss. See also the translations of this text made by Hulot in French, and Rodriguez in Spanish. 1 D'Espeisses, 236, n. 28. From this latter view of the subject, it is evident no damages could be given against the defendants, however great the amount of them ... . . might be proved on the part ot the plaintiff, But in fact, he has not produced evidence of any damages ; not a syllable is said on the point by a single witness. And if the court should be of opinion, contrary to the proposition advanced by me, that a depository is bound to restore the thing deposited unimpaired, and to pay damages likewise, nominal damages only could be decreed on the principle of the cases, in 10 Martin, 687, and 5 Martin, 193.
    I have heretofore argued this cause, as if the defendants had no cause for their refusal to restore the notes; as if the notification given to them by S. Packwood, to retain them was without foundation. Should I not have already satisfied the court, that this action is unfounded, and the plaintiff mistaken in the remedy he is in search of; it will not be difficult, I trust, to make it evident, when the reasons of S. Packwood’s notification are considered. In his answer, S. Packwood avers, that the mortgages existing on the plantation, at the time of purchase, have never been raised, and that the plantation still remains incumbered to an amount larger than $55,000, and therefore insists that the notes should be . . . retained in the keeping of the conventional sequestrators, pgQCjgcl until the incumbrances are The plaintiff, on the other hand, avers, that the incumbrances then existing have been raised, and that the plantation is subject only to a mortgage of % 16,366 66 cents, and he therefore prays that a sufficient amount of the notes being retained to serve as a security against this incumbrance, the balance may be restored to him with $10,000 damages and costs — as the plaintiff maintains an affirmative proposition, on him lies the burthen of proof. Ei incumbit probatio qui elicit, non qui negat. D. 22, 32. As vendor, the plaintiff must shew that he has complied with the warranty, under which he sold ; and that the plantation is free from “ all debts, gifts, mortgages, evictions, alienations, and other in-cumbrances whatsoever,” Exceptio contractus non impleti ex parte actoris non a reo ipsam pro-ponente, probanda est, sed ab adore; ex contractu ve-luti impleto agente, implementum probari debet, et summa ratione. Totum enim actoris fundamentum in contractu ex parte sua impleto, consistit; necessario propterea implementum illud ab adversario nega-tum probare debet '' Ferrari1s Bibliotheca, verbo 
      “ EmptioT art. 5, n. 66. Tom. 3, 244. It fol-1 .... lows then as a corollary, that the plaintiffin this action must prove satisfactorily to the court, that S. Packwood, the purchaser of the plantation, is in no danger of eviction from any claim against it at the time of sale. And this, independently of any separate agreement for the deposit of notes, to serve as a security against the mortgage, which was known to the parties at the time of contract. So this court expressly decided, refusing to give the vendor of an estate judgment for the purchase money, while it appeared there was on it a mortgage, to the payment of which the purchaser might be exposed, though no suit on it had been instituted. 3 Martin, 236, Duplan-tier vs. Pigman, ibid, 247. Clarice's executors vs. Farrar. 5 Martin, 625. Drcux's executors vs. Ducournau. The authority of these three solemn and consentaneous decisions is attempted to be shaken by the obiter dicta, used in the course of the opinion delivered by judge Derbigny,in the case of Fulton’s heirs vs. Gris-wold, 7 Martin, 223. The justness of the judgment rendered by the court, in this last case, cannot be questioned after an examination of the facts. But the reasoning of the judge, against the opinion which Domat founds on a text oí the Roman law, is inconclusive, and in opposition to three former adjudications q£ tjie court above cited, in which the judge himself had concurred, and against the English text of our Civil Code, 360, art. 85, as well as against the whole current of authorities, Roman, French, and Spanish. Code Napoleon, n. 1653, 13. Pandectes Frangaises, 95. Domat, 1, 2, sec. 3, §11. ibid. sec. 2, § 22, note, {fp) ; 1 D*Espeisses, 26, n. 1, Tertio; 1 Automne, 284, 2 Automnc, 408. Julien, Elements de jurisprudence, 303, n. 16. Digest, lib. 18, tit. 6, liv. 18, sec. 1, with Godejray’s note, n. .31, and the gloss thereon ; Code, lib. 8, tit. 45, liv. 24, with Godefroy's comment and the gloss. Ferrari*s Biblicotheca, verbo, “ Eviction n. 60. Castillo, lib. 4, cap. 42, n. 72-76.
    As the counsel for the plaintiff have said nothing below controverting these authorities, it may be taken for granted, that whenever the vendee* can establish the existence of outstanding incumbrances on the property which he has purchased, tending to shew that he may be troubled in his possession, the vendor cannot enforce the payment of the purchase money. To shew then the evidence of such danger shall be the object of my succeeding observations.
    
      The first and prominent incumbrance exist- ... mg on this plantation, is that of $55,000, which was created by the act of purchase by J. La-farge in favor ofA. Michél and his wife, (aco-py of which sale and mortgage forms part of the statement of facts) and which was certified to be in full force at the time of purchase from the plaintM^by S. Pack wood, This same mortgage of $55,000, orany part of ⅛ Mrs. A. Michel refused to cancel, raise or a® nul, though J, Lafarge alleged that he had paid a very considerable portion of it, and that A. Michel, her husbttnd, had given his discharge therefar in his favor (see the suit institute by J. lÉfarge vs. A. Michel andihis wife, on the 18th August, 1820, (n. 3484, ¡District Court) forming a párt of the statement of facts.) The couns|d who now acffpcates the cause of the plaintiff, avers in his, petition, that “ withoutthe lignature of Madamt Michel he cannot procure the discharge of jthe said mortgage.” This suit was known tifo. Pack-wood, when he purchased from tklf plaintiff: he had not only coitl'ttte^;#»#‘?:notice of it, (JYewland on Contracts, 506. 3 Martin, 393) but had read it and communicated it to his counsel, and that counsel thought, with the counsel of Lafarge, that “ without the signature of Madame Michel he could not procure the discharge of the, said mortgage.” That counsei5 moreover, then considered, and now considers, the renunciation made by Madame Michel, as insufficient, and that it would require a very formal signature on her part to discharge the mortgage widish she held on the ilantation. But, all at once we find, without ny explanation of the reasons, a different opinion is held by the plaintiff and his counsel: it is not thought necessary to obtain any decision on the suit then pending; the signature of Madame Michel is no longer requisite. A .C . certificate can be obtained» from a notary public |without any authority, by the by, on his part fA grant it) that sóine one made a declaration (whether true or false) that he, and not Madame Michel and her husband, was the last bolder of the notes, and as such had given afrelease *of the mortgage. But will this coult countenance such an attempt to entrap thS^purchaser as this ? He looked for a real reléhse aad' discharge of this mortgage from Madame Michel, as he had every inducement to believe would be obtained on the suit then pending; or otherwise, before he could take the risk of purchasing this plan-r or-tation on the simple guarantee of J. Lafarge. It is urged now seriously, in opposition to his former opinion, that Madame Michel has claim of any kind whatever on this plantation: and he has really displayed much gallantry in defending Madame Michel from that odious conduct, which he considers the defendants would make her guilty of, if she should urge any such claim. I agree that Madame Michel is “a lady of the highest respectability;” but surely it would be no blemish on her fair character, to urge a legal right in a court of justice, for the purpose of reserving from the wreck of the fortune of her husband, now a bankrupt, a support for herself and children. If such conduct would be odious in the eyes of the counsel, in what terms will he express himself against her, for her conduct in refusing to join in the release made by her husband, of the incumbrance which Lafarge alleges he had paid ? And above all, where will he find words to characterise the defence set up to the action instituted and now pending against her by Lafarge ? 1 deem it almost necessary to apologise to the court for making an answer to such kind of objections; for the respectability of suitors is not to be weigh» . ed in the balance of justice, but the legality Qf their pretentions. To this alone then will j conhtie myself. The plaintiff’s counsel insists that it is incumbent on the defendants to shew conclusively the existence of the incum-brances: it has been shewn most conclusively, that at one time they did exist; and the plaintiff has attempted to shew that he has removed them. The removal of an incum-brance, or mortgage, presupposes its anterior existence; that then must be taken for granted on all sides. Now, for the proof of its removal. The plaintiff produces, not any certificate that the judgment creditor had been satisfied; not even the certificate of the recorder of mortgages, that the judicial mortgage had been cancelled. There is no evidence then of any kind that that incumbrance has been removed. But a certificate of the recorder of mortgages is produced in evidence, (not under seal) that the mortgage on the plantation in favor of A. Michel and his wife for $55,000,had been reduced to $16,366 66⅜ cts. since the date of the sale to S. Packwood. Without cavilling at the irregularity of this certificate, it is admitted that it is prima facie 
      evidence of the removal of the incumbrance ; but it is no more : and can be gone into, as well as shewn to have been given erroneously ; or on insufficient evidence, &cc. &c., as was solemnly settled by this court. 5 Martin, 625. Dreux vs. Ducournau. The defendant shews by the records of the recorder, on what authority he had given this certificate. It was solely on the certificate of a notary public, that a person had appeared before him and declared that he was the last holder of the notes which Lafarge had given for the purchase of the plantation from A. Michel and his wife; that the notes had been paid, and therefore, that he had released the mortgage. Now, in the first place, by what law is a certificate of a notary proof of any act passed before him ? In the next place, could the register, or a court of justice, take, in any case, the certificate of a notary, instead of the copy of the act itself? Would this court, or any other court, notice the certificate of a notary, stating the contents, or purport of an act passed before him ? No ; nothing but a certified copy of the act itself would suffice; for the certificate of a judgment is not sufficient; a copy must be shewn. 2 Martin, 245. Kershaw vs. Collins. But this is not all: had copies of the acts been produced, what would they have proved ? the actual payment of the incumbrance: the only evidence, or certainly the best evidence of it, should be in the hands of the plaintiff: the notes themselves which had been given and paraphed to identify them with the sale. These notes, if ever paid, should be in the hands of the plaintiff But where are they ? He does not produce them; and the only reason that can be assigned for it, is that in fact he has never paid them. The very point put in issue by the general denial and other part of the pleadings, was payment or not ? On the plaintiff alleging it, was it, therefore, incumbent to prove it. But in this he has entirely failed, by not producing the notes themselves. Another question naturally arises, in the absence of these notes; did A. Michel and his wife ever indorse or pass them away? The plaintiff has proved that A. Michel and his wife did negotiate a part of the notes: but are they the notes which he alleges he has paid off? The attempt to shew that the incumbrance has been cancelled to a certain extent, is professedly made by virtue of the act of the legislature of 1817, page 60, sec. . . 3. Without taking any of the various objections to the want of the fulfilment of the formalities of the act which might be made, such as the memorandum of the circumstance at the foot of each of the notes, not being complied with, unless the notes had been negotiated, as the 3d section requires, such cancelling would be of no avail, nor afford any security to a future purchaser. Had these notes been obtained illegally from A. Michel and his wife, no authority would be given to the holder of them to release the mortgage. All these objections, and many others which might be made, was I not afraid of appearing captious, and of tiring the patience of the court, should have been removed by the plaintiff; since, if his allegations are true relative to the payment of the notes, it was in his power.
    But, independently of this incumbrance of $55,000, retained by the act of sale from A. Michel and his wife, to the plaintiff, which, Í think, it has been shewn, has not been legally and duly cancelled, so as to authorise the court to support this action; there is another incumbrance on the plantation, that arising from the marriage contract of Madame Michel. A copy of the marriage contract between Madame Michel and her husband, and evidence of the payment of her dot, to her husband, was produced. To destroy the effect of this, the plaintiff’s counsel have taken two grounds; 1st, that the marriage contract can have no avail against third persons, because no proof has been given that it has been registered agreeably to the provisions of the act of 1813, (1 Martin's Digest, 700,) and 2d, because Madame Michel made a formal and effectual renunciation of all her rights against the plantation, when sold by herself and husband, to J. Lafarge. Let us examine these grounds in order. 1st, The marriage contract is null, says the plaintiff because no proof has been shewn that it has been recorded. According to the Spanish laws in force at the time the contract was made, (A. D. 1808,) Madame Michel has a tacit mortgage on all the estate of her husband, for the restitution of her dow ry. Part. 5, 13, 23. And this extends not only to the property in his possession, but to that which he sold subsequently to the receipt of the dowry. 6 Martin, 688; 3 Martin, 390, Casson vs. Blanque. Such was the effect of the contract when passed. Could any legislature subsequently, without violating the obligation of the contract, say that it should not have its former effect, unless one of the parties should record it ? Plainly not: such law would be unconstitutional. But, 2d, it is said Madame Michel renounced those rights, by the act of sale. Let us see then, if that renunciation is in form and valid. 1 say it is not. It is a general renunciation, without reference to any particular law', which is bad. 1 Martin, 281: 2 Colom, 141. The renunciation, moreover, is not valid for want of the oath required by the Spanish law. 2 Co-lom,, 141 ; Seguenza, 68, n. 13, idem. 69, n. 17, 2 Febrero (cdt. 1818,) 97, n. 121. And it is not sufficient that the oath should be put in the act, but it must have been actually administered. .2 Febrero, 96, n. 120. And the notary should certify the fact. Ibid. As Madame Michel, also appeared in this act as surety for her husband, a special renunciation of the 61$/ law of Toro, was requisite for its validity. Since the Spanish law', when not repealed by the acts of our legislature, is in full force, the court is bound to pronounce that an act without these formalities is not valid. These requisites were not introduced from the canon law; but are as much a part of the Spanish • * _ r law, as any part of the Partidas. In every contract where married women are parties, notaries always complied with them, more particularly with the formality of the oath. I conclude then, that Madame Michel has never renounced, in due form of law, the tacit mortgage which she held on this plantation for her dotal rights. The marriage contract makes all the future estate of Madame Michel dotal; the property therefore, inherited from her father, since her marriage, and alienated in part to Lafarge was dotal, and not paraphernal property, as is stated in the act of sale. For the amount then of the money brought in marriage, % 11,000, and for the amount of the property, alienated $15,000. Madame Michel can exercise her right of mortgage, on the estate purchased by the plaintiff, and now in the possession of S. Pack-wood. Or Madame Michel may demand a restoration of the specific dotal property alienated.
    It is worthy of remark, that the plaintiff undertook to have the mortgages on this plantation cancelled, before he could demand $55,000 of the purchase money : it is for him then clearly and satisfactorily to establish be-liiii- i yond doubt, that the incumbrances have been removed. It is for the plaintiff to shew the very notes which he alleges he has paid; to prove that they have been negociated, if he has paid them to any other persons than the mortgagees; and to give S. Packwood the evidence effectually to resist any demand which might be made by Madame Michel ; with the evidence now on record, what de-fence could Packwood make against an action on the mortgage for $55,000, by A. Michel and his wife? For all that this court has seen, the notes, or a greater part of them, may yet be in the hands of Madame Michel and her husband : certainly, no proof of their payment has been made. Without the notes, and with nothing but the certificate of the notary in our hands, what kind of defence would Packwood make ? None at all; judgment would be rendered against him in spite of all of the certificates spread on the record. And with the knowlege of the dotal rights of Madame Michel, brought home both to La-farge and Packwood, what defence could be set up on the ground that the marriage contract was not recorded ? Let the answer be taken from the decision of this court, in the case of Casson vs. Blanque, 3 Martin, 390-3. a decision should be given in the suit now pendiog, of Lafarge vs. Michel and his wife, in favour of the defendants, and recog-nising the right of Madame Michel, to claim on the mortgage of $55,090, what would be the situation of Packwood? A judgment in the present action would not shield him : for, though Packwood, in his answer, has called Madame Michel in to defend the suit, she has not thought proper to make any appearance ; and no judgment by default could be taken against her, as has lately been contended, because a copy of the petition and citation, in the French language, has not been served on her; and because no judgment by default can be taken where the subject in controversy is laid.
    Without insisting on the written-agreement to cause the different mortgages on this plantation tobe raised, the principles of law, heretofore quoted, shew that Packwood could not be compelled to pay the purchase money, if suit was now brought against him on the contract of sale. The danger of trouble and eviction is greater in the present instance, lhan in that of Duplantier vs. Pieman, 3 Martin, ... 236. In that case, a small portion of a lot in the faubourg was sold, and the remainder of the estate was in the possession of Duplantier to satisfy the mortgage; here, the whole of the estate is alienated. Here too, we shew the actual insolvency of A. Michel, by making his bilan, filed subsequently to the institution of this suit, a part of the statement of facts.— After a fair consideration of all the facts attending this suit, can the court give assent to the assertion of the plaintiff’s counsel, that an iniquitous scheme has been meditated against the vendor of this estate, to obtain possession of it, and at the same time to retain a large portion of the purchase money ? The purchaser has already paid $50,000, on this estate; can it then be supposed that it could be any object to him to hinder the circulation of the notes for $55,000, not due for years yet ? Or that the endorser, G. Dorsey, could have any interest in such a scheme ? Is not the reverse of the picture drawn by the plaintiff’s counsel, a true representation of the transaction ? Is it not apparent that Lafarge wishes to get these notes without performing what the purchaser intended to oblige him t© do, before he would consent to give them up r r , it nothing more was to be done by the plaintiff than to get his friends to go before a notary, and make a declaration, and thereon obtain a certificate, which should raise the mortgages, why give security to the amount of $55,000, that it should be done? All this might have been accomplished in the course of a few hours. No; Lafarge wished to avoid a decision in the suit he had broughf against Madame Michel and her husband, to raise the mortgage. He was then afraid of the judgment, which he knew would be pronounced on it; and therefore, down to the present day, he permits the |uit to remain pending. J. Lafarge appears to be no novice in land speculations : on this record, we have proof, that he heretofore sold a large tract of land, in the state of New-York; and the purchaser has instituted an attachment suit against him, and actually attached to the amount of twenty-five thousand dollars, of the notes of Pack-wood, to indemnify him against a defect in the plaintiff’s title. That suit too, is now pending, and forms a part of the statement of facts; (see the record of Ruggles vs. Lafarge, filed on the same day the present suit was instituted.)
    
      One ground of damages alleged by Lafarge, is that he has been hindered from going to France, by the refusal to give up these notes; no evidence has been shewn that he has suffered any damage, in consequence of the disappointment. His former partner, at home, does not appear to have placed much confidence in his return, as on the record, we have an attachment against these notes by him, to the amount of about $8,000; (see the record of the suit, W. D. Patterson vs. Lafarge.') The institution of these two attachments was urged before the jury, as a consequence of the defendants’ refusal to give up the notes. It has not been urged here, because this tribunal would perceive that the argument might be rather used against the plaintiff To sum up the argument; the depositories are not liable in this suit, for damages; if any had been proved; all that could be obtained against them, would be the restoration of the notes; and the verdict of the jury, for damages could not authorise the court to form a decree, but barely to enter up judgment for the amount. The remedy has been mistaken by the plaintiff; Packwood, the real person interested, and for whose benefit and security the agreement of deposit was made, should have been sued; hut even now, ample reasons have been shewn |j'im why these notes should be retained in hands of the conventional sequestrators, for his security against trouble and eviction, from the mortgages and claims existing against the plantation at the time of purchase; mortgages which have not been legally proved to be cancelled; claims which it is evident may be successfully urged, for aught that has yet appeared, and which at this moment are the subject of litigation. Should the matter appear merely doubtful, the defendants, who seek a shield from damages, should be absolved, rather than be exposed to a double loss. In pari causa damno magis quam lucro consulendum. But when the court weighs deliberately the testimony, the scales of justice, it is confidently believed, will not find the defendants wanting.
    
      Livingston, for the plaintiff
    The want of title appears only in the answer ofPackwood; he says he directed the defendant, Morgan, to keep the notes, inasmuch as the mortgages h;»ve not been raised, nor the title thereto rendered complete; but as no other defect in the title has been even suggested in argument, than the . pretended incumbrances, I shall take notice of this defence, only to shew the pre-determi-nation of the defendants in this cause, no ter on what unfounded pretence, to deprive the plaintiff of his property.
    it is alleged that there were other incum-brances on the property besides those recited in the deed, and that the defendants were directed by Packwood not to deliver the notes until those incumbrances were removed.
    On this subject it is worthy of remark, that this defence never occurred to the defendants at the time they chose to break their engagement, nor for a long time after. After the plaintiff had incurred considerable expense, and made great sacrifices to pay offthe notes, he procured the certificate of the proper officer, and presented it to the defendants as evidence that he had complied with the condition on which he was to recover a large portion of the notes. To his utter astonishment, they refused to comply. To give more form and solemnity to the transaction, and to make them record their reasons for this extraordinary conduct, he sent his papers by a notary au-thorised to recover his notes. The demand was made; and then, if ever we should expect to hear the true reason why they were detained, let us listen to it. They say “ that the mortgages having been granted to Albin Michel and his wife, they were not satisfied with the releases granted by the holders of the notes, but required that the same should be released by Albin Michel and his wife, and that they would not give up possession of the notes in their obligation specified, or of any part of them, until the incumbrances granted by John Lafarge in his act of purchase of said plantation, should have been raised by Al-bin Michel and his wife.’' Here then we have the original and only ground for the refusal, not a word of any other incumbrance but that created by John Lafarge in his act of purchase ; not a syllable of any objection but to the mode of cancelling the mortgage by the holders of the notes.
    Even when the answer is filed, not a single other incumbrance is distinctly referred to. But the answer to the petition gradually enlarges the ground taken in the answer to the notary. That answer, we have seen, goes beyond the contract, by saying, that although the mortgage was cancelled by the holders of the notes, they would not give up those they held, until Michel and his wife had also can-celled it. In the answer to the petition they advance another step — the mortgages must be released to the satisfaction of Packwood, and he must authorise them to give them up.
    It is not until the hearing, that after full reflection, we are informed, that neither the answer in the protest nor the answer on record, contains the true reasons of the refusal. It is not until then, that we hear of a tacit mortgage of Mrs. Albin Michel, for her dotal and para-phernal rights; and of the defendants’ duty to retain the notes, until these and all other in-cumbrances, they may please to dream of, are released.
    I ask the court to consider these circumstances, and determine whether this change of ground is not strong proof that they found untenable that which they had at first occupied. Whether truth can consist in such variety : It is proverbially single : error, on the contrary, is infinite. A single good reason is worth a dozen bad ones, and better than a thousand of such as are inconsistent with each other.
    The defendants, for a reason I shall state. 7 wan|e(j ⅛ keep the notes out of circulation : having no good reason at hand, they thought of a had excuse for doing so, and wishing to strengthen it, every effort made it worse.
    Let us return, however, to the ground which they thought of last, and on which they seem to place the greatest reliance, viz. that there are other incumbrances existing on the land besides those created by the plaintiff.
    The incumbrance pretended, is that of Madame Michel. To support it, they shew that she had, on her marriage, property to the amount which she brought in dower, and some paraphernal property to the amount of
    But is this enough ? For aught that appears to the court, Madame Michel may, at this day, have*all the property which she had at the day of her marriage, or at any. time since; and this idea is strengthened by the circumstance that Madame Michel has been made a party to this suit, and has not either then, or at any other time, ever said that she had any such claim. The burthen here is on the defendant. He must shew that the incum-brance exists: he must convince the court .. that it it exist, it is a justification for him. The wife has a mortgage, not for what she brought in marriage, but for that part of it which she loses by her husband’s default. She cannot keep the property and the mortgage both. As she has never made any claim, as she is silent, even when judicially called on ; the legal presumption is, that she has retained her property, or is satisfied to look to the rest of her husband’s estate for what is wanting; and the truth is, that she has such security, and that we have furnished it; for, with the money we paid for the plantation, the property at the bayou was purchased, which is in Michel’s hilan.
    
    But whatever may have been the situation of the property, that lady had a better reason for waving her claims. — She had, by a solemn act, with a full knowlege of her rights, renounced them; and it appears to me, that the defendants are making a most unwarantable use of her name, when they employ it to screen themselves from the consequences of their breach of contract, by supposing that she could be guilty of entrapping the plaintiff into contract, under a feigned release, to receive his money, and then ruin him by an enforce- . ¶ ¾ . ment of her claims : they ought to have pro-<]uce£} the clearest evidence, that she intend-e(J before a conduct SO odioUS Can be presumed, and on the part of a lady of the highest respectability.
    The renunciation is attacked on the authority of Beauregard vs. Piernas, 1 Martin, 281 ; but no two cases can be more different; the court there determine, that from what was certified by the notary, it appeared that he was himself ignorant of the law which the wife was made to renounce. She only renounced all the laws of Toro in her favor, without shewing that she knew what particular advantage she renounced. Here I think there can be no doubt, from the attestation of the notary, that the wife was fully informed of all her rights, and deliberately renounced them.
    I make no answer to the argument drawn from the canon law, to shew the necessity of an oath to bind the renunciation.
    Even this renunciation w'as not necessary, inasmuch as there was no lien, the mortgage having never been recorded.
    But is it enough for the defendant to shew that a tacit mortgage once existed, and if he do, must the plaintiff, at his peril, prove that it has been cancelled? I apprehend not. When a purchaser bargains for an estate, it is natural that he should make these inquiries, and satisfy himself as to every doubt in the title. But after he has purchased, if he wishes to avail himself in any way of an incumbrance he may discover, his situation is then changed ; he must shew clearly, not only that it once did, but that it still does exist; otherwise, no seller would be safe; every buyer could, under this pretence, avoid the payment of the price; no property scarcely, even in this new country, has passed through less than ten or twelve hands, since the first grant.— The tacit mortgages of wives and minors, may be preserved by absences, and repeated occurrences of minority, for an hundred years; the purchaser then has nothing to do in order to avoid his payment, but to shew that some sixty or seventy years since, the great-grandmother of the vendor, and his minor wards of the grandfather had a tacit mortgage, and call on the seller to produce evidence that they have been cancelled; and all this, although before the purchase, he was perfectly apprised of every link in the title.
    
      To look no further than the present case, . it appears that this plantation was bought by Michel, from the syndics of John Blanque; his wife must have had claims; she is known to have brought her husband a large fortune. S. Packwood, therefore would be justified in putting Lafarge to a suit, and force him to prove judicially that Made. Blanque wras paid, although that lady never made any claim; although Packwood was apprised of all the circumstances at the time of the sale.
    Again, before Blanque, it belonged to John Gravier. I will not detain the court by detailing all the inquiries which this name, so well known in the temple of Themis, would give rise to. But I conclude, that even if we were contending with Packwood, which we arc not, the court would say to him, if he used any such pretence to delay his payments— Sir, your defence is not just; you knew when you bought this property, that Madame Michel, Madame Blanque, and the wives of all the other proprietors, through whose hands it has passed, had once a tacit mortgage on the property; if you thought there was risk in buying land, at the uncertainty of the release of their claims, you should either have abstained from making the purchase, or have apprised Lafarge that you would not pay him till he produced evidence of the release ; or at any rate, you should have returned the property if you were not satisfied with the title. You keep his plantation, you receive the profits, and you retain the price; this is unjust, and looks like something worse, unless you prove that you are in real danger. Shew that one or both of these ladies claim something from the land. Shew that they have menaced with a suit, or at least that they have said, they have a claim. But you have done neither. You have shewn the very reverse; for you have judicially called on Madame Michel, and she has told you, by suffering a default, that you had no right to doubt her honor, or to injure her by the supposition, that she would gainsay her solemn renunciation.
    Such, it appears to me, would be the language of the court to Packwood. But what will they say to the defendants, who are strangers to the contract of sale, and who must be judged by the terms of the agreement which they have entered into?
    That agreement is precise. It is a receipt for the notes, and a promise to return them on a certain condition. If that condition has ... . been complied with, they are hable to our ac-ti0n; if it has not, then we have brought it cause, and our complaint must be dismissed. The condition is, that “ the notes are not to be returned until the mortgages on the said plantation, are raised by the said La-farge,” and when the mortgages are raised, the notes to be returned to Lafarge ; but the notes to be returned in proportion as the mortgages are raised. So that no more in amount is to be retained, than remains of the mortgage uncancelled :—
    The first inquiry is — what mortgage ?— The defendant now says, (though I think that is shewn to be an after thought, and not like other second thoughts, the best) he now says, the tacit mortgage of Madame Michel; but as I trust we have shewn there is no such mortgage: this would be a sufficient answer.
    The defendants’ counsel says, that it was intended to include the mortgage of Madame Michel, by the general words of the receipt. Whatever may have been the intent of the gentleman who drew the instrument, I will undertake to prove to demonstration, that the instrument itself will not admit of this construction, and that neither J. Lafarge nor G. ° Dorsey understood it so. In the deed to Packwood, two mortgages are mentioned; one of fifty-five thousand dollars, the other of one thousand dollars (a judicial mortgage) nothing is said about any guarantee against the §55,000 conventional mortgage; most probably because it was understood that Lafarge would deposit the notes to that amount. But, the judicial mortgage he promises (not to take up, but to warrant the purchaser against) and with this warranty he appears to be content.
    After the sale the defendants receive precisely the amount of the conventional mortgage, §55,000, and promise to return them when the mortgages are raised byJ. Lafarge. They are to be returned in proportion as the mortgages are raised: so that no more in amount is to be retained, than remains of the mortgage uncancelled. Now, from this phraseology, two things result, both incompatible with the idea that any other than the mortgages recited in the deed were ini ended; 1st, tiie mortgage intended in the receipt must be a mortgage that can be cancelled; consequently it must have been registered, or at least written — it can never apply to a tacit mortgage. You may release such a mortgage; but, no- . J . , ’ . ’ thing that is not written can be cancelled.
    Secondly — the mortgage intended by the recejpt raiist be one equal in amount to 55,000 dollars; because it is stipulated that the notes, which amount exactly to that sum, are to be returned in proportion as the mortgages are raised; so that no more is to be retained than remains of the mortgage uncancelled. Now, tho’, if this was intended of mortgages to the amount of 60,000 dollars, a proportion might, be established between the notes returned and the monies paid on the mortgages ; yet the remaining part of the obligation cannot apply to any other than the proven mortgage of 55,000 dollars. There must be no more retained than remains due, after the payment of part of the mortgage. This is possible, if they intended the mortgage of 55,000 dollars; it is impossible they meant any other: for instance, suppose^Madame Michel’s tacit mortgage to amount to 35,000 dollars ; the mortgage recited in the deed to 55,000 dollars, here we have an aggregate of $90,000. Lafarge, in pursuance of the receipt, pays $30,000: the defendants must then deliver him notes to an amount equal to the proportion which his payment bears to $90,000, the whole sum due, that is to say, one-third. They must give him $ 18,333, which is the 3d of $55,000; but by the terms of the receipt, they are to retain the mount that remains of the mortgage uncancel-led. But there remains of the mortgage can-celled on this construction, $60,000: therefore, out of $55,000, they are to give $18,333, and to retain $60,000. It is demonstrated, therefore, that by the terms of this agreement, the parties could have contemplated only the mortgage of 55,000 dollars. If it be objected that the plural “ mortgages” are used, I answer, that the last time, it is used in the singular only; and that as there must be an inaccuracy in one or the other, because they cannot both agree, we may as well suppose the inaccuracy to have taken place in the first instance, as in the last.
    Should it be further said, that there were actually two mortgages, I answer, that the judicial one for 1000 dollars is specially warranted against, which is not the case with the 55,000 dollars; and therefore, it would seem that no deposit w7as intended to secure the purchaser against that. In addition to this, we may reasonably suppose that the purchaser would take a deposit of 55,000 dollars, and r the seller’s guarantee of 1000, for a sum of 56,000 dollars; but not that he would take that deposit for more than 80,000 dollars, without even an express guarantee for the surplus.
    The plain, express, unequivocal meaning of the receipt is, that the mortgage to be cancel-led was the mortgage of 55,000 dollars. Did the parties understand it differently ? Not Lafarge most certainly ; he could never have consented to suffer so large a sum to remain in the hands of the defendants, until he could perform the impossible task of cancelling mortgages which never existed, and of producing proof that all the wives of the different proprietors through whose hands the land had passed for the last century, had released their tacit mortgages. He never could have intended to put it in the power of the défendants to retain his prop'erty forever. For, that is their construction of the engagement. In their answer they say that they will keep them until the mortgage is released to the satisfaction of Packwood, and he shall authorise them to deliver them. Their engagement then is to be fulfilled, not when justice and their own promise require, but when Packwood pleases. L . . This answer is drawn by the counsel who drew the agreement, and we are to suppose must express his construction; but if he ex_ plained it to Lafarge, in this sense, before he took it, he must have been a mad man to deliver the notes — if he did not so explain it, neither Lafarge, nor any other man could imagine that it contained so different a contract from that which the plain meaning of its words expressed. Lafarge then, whose object it was in selling his property to get possession of the price, certainly never understood it, as the defendants’ counsel now does. Did the defendants themselves understand it so ? Most demonstrably not. First, because the plain import is different, and when another intent is alleged, the strongest circumstances must be shewn (even if the rules of law would admit such proof) to prove it; but here all circumstances are directly opposed to it. What answer do they give, when called on by the notary ? One totally inconsistent with the construction now contended for. They formed their objection solely on the circumstance that the release of the mortgage was made by the holders of the notes, and not by Michel and his wife, and say that they . ... will not give up the notes, until (that is to say, ^at wjj] (|0 Hien) the mortgage grant-e(j ^ Lafarge, in his act of purchase, should have been raised by A. Michel and his wife. Is it possible more unequivocally to express a construction of the contract, more directly at war with that which their counsel makes them give in their answer, and with that which he makes for them on the trial; they will give up the notes, when Albin Michel and his wife shall cancel the mortgage given by Lafarge ; and yet, in their construction, they were to keep them until all the tacit mortgages whatever, should be released, till Packwood should be satisfied ! Till Packwood should authorise them! No, certainly not; your first objection is a very bad one; and I shall shew it to be a very frivolous one; a bare pretext to keep your own name from circulatingon the notes; — your first, your only objection, wras that the release was not executed by the mortgagee, although you acknowleged (and Í pray the court to remark this) you acknowleged, though you now affect to doubt it, that the releases were executed by the holders of the notes. I refer for proof of this, to the answer to the notary. You never thought of the tacit mortgage as s ° ° defence, until after you found the stranger would not submit to imposition — until you found an account was required of your conduct — and that a great commercial name could not keep you from a judicial investigation ; then indeed professional talent was called to your aid, and its ingenuity furnished you with the two additional excuses ; the necessity of Packvvood’s consent, and the tacit mortgages; but I repeat, and I think I may now do it without fear of contradiction, that the mortgage mentioned in the receipt,did not, by the terms of the instrument itself, extend beyond the mortgage made by Lafarge, to Michel and his wife, for the 55,000 dollars; and that such was explicitly the meaning of both parties to the contract.
    If such be the case, we have only to en-quire whether that mortgage has been can-celled, so as to leave only a few dollars still due.
    Of this, we produced the highest evidence the nature of the case was susceptible of; the certificate of the register, stating that fact.— But it is said this certificate is founded on Improper testimony, and that although the register has certified that there is no morí-gage beyond the sum specified, he was not warrantecj ⅛ fioing so, until he had the re-jeage or¡g¡nai mortgagee. Now, if we are to take the plain words of our statutes for our guide, it must follow not only that the mode we have adopted of procuring the release of the mortgage is valid, but also that it is the only legal mode of effecting it.
    It appears by the sale, that the mortgage in question for 55,000 dollars, was for the securing the payment of that sum, for which promissory notes had been given and marked ne varietur ; it appears that these promissory notes had been transferred by the mortgagee, and were in the hands of several holders.— Now, who does the defendant w ant to release the mortgage ? Why, truly the mortgagee, a person who had no interest whatever in the debt. One who, if he had done it, would have been guilty of fraud. The moment he passed the notes, that moment the holder became subrogated to all his rights in the mortgage to the amount of the notes, and the mortgagee had no more right to cancel it, than a stranger. Equity would have inforced this, without any positive law; but our legislature wisely took away any doubt on the subject, by passing i the act of 4th February, 1817, by the 3d section of which it is enacted, that the bearers of promissory notes, secured by may, on receiving payment, cancel the mortgage to the amount of the notes they hold.— in this case the notes having been passed, the holders of them appeared before the notary, and acknowleged satisfaction, of which the notary gave a certificate, and the register can-celled the mortgage. If any thing can be more strictly conformable to law, I have not the ingenuity to discover it. The case in 5 Martin, 625, Dreux vs. Ducournau, has been cited as supporting the defendants’ argument; but nothing is more fatal to it; the certificate of the register was there declared not to be conclusive. Why ? Because it was given on an order obtained in a suit to which the person really interested, was not a party, although the party apparently interested was. Now, in this case, the party really interested, the holders of the notes gave the release; and the defendants contend, that it ought to have been given by the person only apparently interested, viz. the mortgagee.
    I make no further remark on the objections to the form of the releases granted by the holders oí the notes, than a reference to the Civil Code, 466, art. 64, by which it appears that all that is requisite for the cancelling of a mortgage, is “ the consent of the parties concerned, or having the necessary capacity for that purpose;” now, here the holders were the only parties concerned, and the act gave them the necessary capacity.
    The delivery of a copy of the act of release is not made necessary ; that provision is made by another article, and applies to the deeds and mortgages.
    But if there were any irregularity, by what possible reasoning could it be made to avail the defendants, unless they shew that the mortgage still subsists ? But there is no such irregularity ; they know the mortgage does not exist. They knew it when they refused to comply with their solemn engagement, and they are bound to pay us the damages we have incurred.
    This is the last enquiry — and we were presented on the hearing with an assertion on this head, which I confess, made me smile. We were told that this was a deposit, and that the depository was liable to no damage, in case he broke his contract: all that could be recovered was the thing deposited. Wewefenot only told this gravely, but I was rebuked for a look of incredulity, with more politeness than I believe my involuntary expression of countenance deserved. We were assured, that strange as it might appear, such, notwithstanding, was the law, and witnesses from all countries, and of all ages, were called to confirm the assertion. Accursius and Ferrari from Italy; Aljonso the learned, and his commentator Gregorio, came like the knight and his squire, from Spain. Pothier and D'Espeisses poured out the treasures of their Gallic lore, and Justinian, with his sages from Byzantium, brought up the rear. Each gave his testimony in his own language, and considering the number of the witnesses, it must be confessed there was a marvellous coincidence in their evidence; they all, without exception, declared, that the depository was bound to restore the thing deposited when he should be called on; but, though I listened very attentively, I could hear none of them ütter the legal heresy they were called to teach — that, though a man, who made an ordinary promise, should pay damages for the breach of it, yet he who un- , . aertook the sacred trust or a depository, might violate it with impunity. A man entrusted another’s whole fortune, in promissory notes, or merchandize, or any oth^r effects, (I think the gentleman did except money) might refuse to deliver it when called on; or when forced to a suit, he, the owner, can recover nothing but the deposit; and the faithless, wretch who has deceived him is liable to no penalty, if I recollect right, for the reason is the same, not even to costs. Nay, further, that if the depository chooses to transfer the deposit to another of his own choosing, who loses or wastes it, all he can be called on for is to give the unfortunate owner a power to sue for his property. This last ingenious inference is drawn from the Dig. 16, 3, 16, and I think solely founded on too incorrect terms. The original is eatenus eum teneri, and. this is certainly affirmation that he shall be liable so far; but there are no words of limitation to shew that he shall be held no further liable. The case I think supposes that the first depository had, by the terms of the deposit, a right to transfer it, and that he did it in good faith. But certainly, if trusting in a man’s honesty, I deposit my property with him, and he, with r J f . gross neglect, gives it to a man of no responsibility, he is as much liable as if he had been • i, /* -i • i • i/» guilty ot the conversion himselt.
    However the law be in this case (and 1 confess both Hulot and Rodriguez coincide in their translations, though the gloss of Godfrey does not agree with them) however, this may be, the law I think is clear from a view of the whole title of the Digest referred to by the defendants, that where there is no fraud, there the depository is bound only to restore the deposit, and not even that when it is lost. But wherever there is fraud, he is bound for damages ; and that a refusal to deliver the deposit, is considered as fraud, if it be in the defendant’s possession, particularly from the following law of that title, Dig. 16, 3,13, sec. 1. liv. 1, sec. 15, 16, 20, 22.
    But all this learning on the subject of deposits with which the defence is interlined, is perfectly inapplicable. This is not such a deposit as the authorities relatedo; and if it were, he is bound to restore it, unless the person who claims an interest should have made an attachment, or a legal opposition to the delivery. Civil Code, 414. art. 25.
    
      This is a special undertaking, by which the 1 b person making it must be bound. He has matjg his own law. He undertakes to deli-yer Up the notes when a certain condition shall be performed. We have shewn clearly that this condition was performed; that we offered legal evidence of that; we made the demand, arid apprised the party by a notarial demand, of the damages we should suffer if he delayed the delivery. He refused to comply, and by every rule of law he is liable to pay us those damages. The law on this subject is most clearly with us, and the evidence justifies the amount of damages. The cause was heard before a most respectable jury, chosen by the parties, and if the court think we are entitled to recover at all, they will not, I think, interfere with an assessment made by men every way qualified for the task, and who performed it after a full hearing.
   Porter, J.

delivered the opinion of the court. The plaintiff sold on the 26th March. 1820, to Samuel Packwood, a plantation and slaves, for the sum of 110,000 dollars : 25,000 dollars of which was paid in cash, and for the balance, notes were given, indorsed bv ° . berry Dorsey. The act of sale contained; a warranty of all debts, gifts, mortgages, evictions, alienations, and other incumbrances whatever; — a declaration of the vendor, that according to the certificate of the register of mortgages, the land and twenty-nine of the negroes were hypothecated in favor of Al-bín Michel, for securing the sum of 55.000 dollars; and that he had paid 22,6136 dollars 66 cents, in discharge of it. Mention is also made of another mortgage resulting from a judgment, for the sum of 1021 dollars 87 cents.

By an instrument of the same date with the deed of conveyance just stated, the defendants, Morgan, Dorsey & Co., acknow-leged to have received of “ J. Lafarge the notes of S. Packvvood, indorsed by G. Dorsey, to the amount of 55,000 dollars, being part of the notes mentioned in the bill of sale of plantation, sold by Lafarge, to S. Packwood, held until the mortgages on said plantation are raised by said Lafarge, and when the said mortgages are raised, the notes to be returned to Lafarge. But the notes to be returned in proportion as the mortgages are raised, so that no more in amount is to be retained than . , remains oí the mortgage uncancelled.

On the 10th of April following, this action was instituted in which the petitioner demands that the defendants be decreed to give up all the notes placed in their hands, except the sum of 16,366 dollars 66 cents; and that they be condemned to pay him 10,000 dollars, the damages he has sustained by their breach of contract.

The defendants answered. — Admitting : the deposit for the purposes averred in the receipt: averring, that they were ready to hand over the notes whenever authorised by Packwood, and had always been willing to do so — that Packwood had instructed them there existed on the plantation divers mortgages, particularly one in favor of Albin Michel and his wife, and had forbidden them to deliver up the notes to the plaintiff

That attachments had been levied on these notes; one at the suit of Samuel Ruggles for 25,000 dollars, and the other at that of William D. Patterson for 6,666 dollars, 66 cents; and they prayed that S. Packwood, and A. Michel and wife, should be made parties, and that if damages were awarded to the plaintiff, they should be condemned to pay them.

Albin Michel was cited, but did not appear. Packwood made himself a party to the proceedings, and averred that he had expressly directed Morgan, Dorsey ⅜- Co. not to give up the notes; that they were bound as seques-trators to hold them, until all the mortgages were raised,and the title made valid, and com- , 11 , . , píete in law; and be prajed that they might be decreed to retain them until the plantation an(j sjaves were discharged from all incum-brances or liens whatever.

The cause was tried by a jury, who found for the plaintiff, damages 4,000 dollars. On this verdict, judgment was rendered that the petitioner recover of the defendants that sum, and that they return of the notes placed in their hands, the amount of 38,633 dollars 33 cents. The defendants have appealed.

The first question to be decided, is whether the appellants are responsible, and liable to pay damages for their refusal to give up the obligations when called on. The second is, should they now be decreed to restore them.

it is a matter, perhaps, of little importance in settling the rights of the parties in this action, whether the defendants are considered depositories strictly such, or conventional se-questrators, as with some slight exceptions, not necessary to be-noticed in this case, acting in the latter capacity, without compensation, creates the same obligations, as the real contract of deposit.

If we consider them as sequestrators acting for both parties: for Packwood, who had a great interest to prevent these notes getting into circulation improperly: for Lafarge, to whom it was important that they should not be retained after the incumbrances were raised ; their duties may be easily defined : they were obliged to hold the notes until both parties agreed to their delivery, or if they could not agree, until a court of justice decided they should be given up.

The whole circumstances of the transaction, as proved in evidence, induce us to regard the defendants as conventional seques-trators, and subject to the obligations just stated.

Should we, however, adopt the construction which the plaintiff contends for, that by the terms of the receipt the defendants undertook to return the notes and obligations on the happening of a certain event; and that in doing so they took on themselves the risk of judging whether it had in reality occurred or not, the circumstances, under which they entered into that engagement, must be considered in ascertaining what consequences follow if they committed an error in the interpretation of it. The contract was entirely gratuitous; nothing of course will make them responsible, but . , . * gross negligence in keeping the property, or fraud in refusing to give it up. No proof of that ⅛⅛<1 has been made in the suit before us. It has not been shewn they had any interest in holding these notes, or that they acted in bad faith. By the words of the receipt they were to give up the obligations when the mortgages were cancelled. If they gave them up before they were cancelled, they violated their contract, and would have been responsible in damages to Packwood, for whose interest that condition was inserted. In what situation then (according to this doctrine) would these men, acting in good faith, have been placed ? Without reward or compensation, made responsible in damages for mistaking the law, in a matter which the courts of justice to whom it is submitted, have found difficulty in settling, after much time has been taken for reflection, and the judges have had the assistance of able counsel to aid their deliberations. This never could have been the intention of the parties, and we are all clearly satisfied the law creates no such responsibility. In regard to Packwrood, by whose directions the defendants acted, a different question is presented, and there is no doubt, that if, • i ii without a justifiable cause, he prevented the plaintiff from the enjoyment and use of his property, he is responsible in damages for the injury inflicted.

The next question is, whether the plaintiff’ has a right to recover the amount of obligations sued for. The defendant, Packwood, insists that mortgages yet exist on the property, that they have not been discharged, and that he has a right that every incumbrance should be removed.

The opinion which the court has formed on the whole case, renders it unnecessary to examine a point much disputed, whether the terms of the receipt extended to all liens existing on the property, or merely those of which mention was made in the bill of sale.

The plaintiff, who alleges that the liens on this property have been cancelled or released, first presents us with a certificate from the register of mortgages, to establish the reduction of that in favor of Michel and wife. The defendants object that the recorder canceled the mortgage on irregular and insufficient evidence, and that it still exists. Testimony, such as was introduced here, is not sufficient to authorise us to say so. The cer- . , ni , . tificate is admitted on all hands to be prima yaeie evidence of the fact stated in it. It is not conciusiVe : it may be contradicted. But to destroy the credit attached to it, the party who attacks its verity, must do more than offer proof which leaves that verity doubtful. He must shew it to be false : he must establish that the officer acted on evidence that was untrue, not merely on that which was irregular. The holders of the notes were authorised to raise the mortgages. To prove they did not, the appellant insists that copies of the acts would have been better proof to the recorder than certificates of the notary, of what these acts contained. This is, perhaps, true; but it does not falsify the certificate granted by the recorder, that the holders of the obligations had, in fact, raised the mortgages. And we do not see that there is any good cause for the apprehensions e*pressed, that Michel and his wife may, at some future time, shew these mortgages have not been released. The law makes the recorder responsible, if he errs from design, or from negligence; and if the party in this case dreaded, that this responsibility was not a sufficient guarantee, he should have offered proof sufficient to authorise us to declare the certificate untrue. In the case of Dreux vs. Ducourneau, 5 Martin, 625, the decree of the parish court, which was the only foundation for the certificate of the register, was shewn to have been granted in a suit where the mortgagee was not a party.

The lien, proceeding from the dower, brought by Mrs. Albin Michel into marriage, is presented as an objection to the petitioner succeeding in this action.

By an act of the legislature, passed in the year 1813, 1 Martin, 700; all marriage contracts of this city, are directed to be recorded in the office of recorder of mortgages ; and if not recorded agreeably to the provisions therein contained, it is declared, they shall be utterly null and void, to all intents and purposes, except between the parties thereto.

This law is said to be unconstitutional, in requiring acts made previous to its passage, to be recorded. No reason was offered in support of this position, and we have not been able to find any. It impairs not the obligation of a contract, it only prescribes a certain formality to give it effect. If the legislature could not regulate matters of this kind, they could not control the forms of proceedings . _ . in our courts of justice, nor pass a law in relation to any thing which already had existence.

^ good deal was said on inconveniences that must ensue if the provisions of this act were recognised, as applicable to contracts of marriage. But when the legislature clearly, and unequivocally express their will, it is not for this court to refuse to carry it into effect, because inconveniences may result from so doing. Considerations, such as these, we presume, were in the contemplation of the law-maker, estimated by him, and found not to be of sufficient weight to counterbalance the benefits that were otherwise to be derived from the enactment. Arguments ah inconvenienti are well worthy of attention, where the law is doubtful; when it is plain and explicit, our duty is confined to obey what is written, and to enforce it. In the case of Cassou vs. Blauque, suit had been brought and was pending, when the act was passed.

The renunciation of the wife before the notary, of all her claims on this property, ap^ pears to the court, to be binding on her. It follows almost literally the words of 58th law of the 18th title, of the 3d Partida. And the of-J J ficer, who executed the sale, was cautious in stating to her what right she abandoned.— Febrero de Escribanos, cap. 4, sec. 4, n. 121.

The oath, which the counsel contends, should have been added to it, is not required by this law, nor by any other, that our researches have furnished us with. Febrero, part. 2, lib. 1, cap. 3, sec. 1, n. 46. It was probably introduced into the Spanish jurisprudence from the canon law. It may have been found useful in deterring married women from violating agreements; but it is not seen how it could have given the contract a greater validity. We have no wish to multiply oaths in the transactions of society. The author just quoted says, though the wife may have sworn once she would not alienate her property, yet the second oath, when she does alienate, shall be binding.

In regard to the attachments levied on these notes, they of course must be released, before the defendants can be compelled to give them up.

It is therefore ordered, adjudged and decreed, that the judgment of the district court. be annulled, avoided and reversed, and pro- ' . . ceeding to give such judgment, as m our opi-njon ought to have been given ; it is further adjUijged and decreed, that the defendants deliver over to the plaintiff, the notes of S. Packwood, endorsed by Greenbury Dorsey, to the amount of 23,633 dollars 33 cents, as specified in the petition, as soon as the attachments on the same, in the hands of said defendants, at the suit of Samuel Ruggles vs. John Lafarge, and William D. Patterson vs. John Lafarge shall be dismissed : and that they pay the costs of this suit.

It is further ordered, that nothing contained in this decree, shall affect, or impair any right which the plaintiff may have to demand damages of S. Packwood, if any be due, for having-prohibited the delivery of the notes deposited in the defendants’ hands.  