THOMPSON v. CHRETIEN. amount they had bound themselves for, from Thompson; and, five pears afterwards, were fully paid by him under the compromise of 1825, and, as subrogated to the United States, formally discharged Thompson and gave him back part of his property, and assumed and paid a judgment which had been rendered against him. Can it be pretended, in the presence of this array of overwhelming facts, that the Chrétiens could claim relief from the government of the United States on the ground of having paid by mistake, when they had the money repaid to them in their pockets, and had extinguished all the rights of the United States, which, by subrogation, were vested in them, by a formal discharge of Thompson? Such a pretension appears to us to rest upon a complete confusion of all ideas of right and wrong. The Chrétiens, as friends of Thompson or as strangers, had a right to discharge his debt and save his family from being turned out of doors; but, if the debt was really due, they never could recover it back from the creditor who had received no more than he had a right to. Domat, lib. 2, tit. 7, §2. Repetitio nulla est ab eo qui suum recepit, tametsi ab alio quam vero debitore solutum est. L. 44, fl, De Condict. Indebiti. The reason given for this by Domat is, that the creditor has received only what was his due, and the person `thus interfering may have wished to discharge the debtor. After the debtor shall have paid the person, who has thereupon given him a discharge for the debt, how can the creditor, by returning the money to the person who paid it, bring into existence the debt which has thus been twice extinguished. This debt we think has been twice paid, once by the Chrétiens to the United States, and once by Thompson to the Chrétiens; and, as matters stand, the United States have no more claim against Thompson than the Chrétiens would have, had the money not been returned to them. By the payment to the United States Thompson became the debtor to the Chrétiens who made it, and no longer owed the United States; by the compromise of 1825, he was entirely discharged. If Thompson was thus released from this debt the consideration of the compromise has not failed, but, on the contrary, he has had the benefit of it, and the compromise remains in force. It certainly has the appearance of injustice that the plaintiffs should not have the benefit of the money returned to the Chrétiens under the act of Congress. But considering that act in relation to the evidence which is before us, we can only view it as a matter between the parties exclusively, and not affecting the rights of Thompson. His heirs cannot be injured by it, but they can derive no benefit from it. The error in this matter does not consist in the payment of the Chrétiens, but in the reimbursement to them of what they had already received. But the United States have sued the plaintiffs on the original cause of action for which the distress warrant was issued, and the plaintiffs have pleaded payment. It appears by the treasury transcript annexed to the petition on which the suit is brought, that the nett proceeds of the payment to the marshal were passed to the credit of Thompson, as collector of the revenue. The right of the government to disturb this payment and make Thompson again the debtor of the United States we have considered in this case, and we have no reason to think that any court would come to any other conclusion; but we may err in this, and the courts of the United States may take a different view of the subject, and hold the debt to be still unpaid. For this contingency we must provide; and in this respect the rights of the plaintiffs must be fully protected, under the formal guarantee in favor of Thompson in the act of compromise, against all claims on the part of the United States. We concur with the Supreme Court in the opinion expressed on the former trial of this cause that, the obligation of the Chrétiens to Thompson was joint and not in solido. In closing this cause it is proper to add that, we have considered the very able and elaborate opinion of the judge of the Fifth District Court of New Orleans, the strong equitable views of which we approve, but cannot for the reasons given apply them for the benefit of the plaintiffs. It is ordered that the judgment appealed from be reversed; and it is furthor ordered that the defendants, to wit, the representatives of the succession of Hypolite Chrétien for one-half, and the representatives of the succession of Gérard Chrétien for one-half, be decreed to hold harmless and indemnify the plaintiffs against the said claim of the United States, against them by reason of the reimbursement made to the said Hypolite and Gérard Chrétien, in pursuance of an act of Congress of March, 1826, and that the appellees pay the costs of appeal, and the defendants those in the court below. THOMPSON V. CHRETIEN. DAVIS v. BOURGEAT, Executor. Where the record of the certificate of notice to an endorser of the protest of a note appears to have been made in the presence of two witnesses, but it does not appear that they signed it, the record not being in conformity to the statutes of 14 February, 1821, s. 1, and 13 March, 1827, s. 1, the certificate will not be proof of notice, and a certified copy of it should not be admitted in evidence. A PPEAL from the District Court of Pointe Coupée, Farrar, J. No counsel appeared for the platntiff. Cooley, for the appellant. The judgment of the court was pronounced by SLIDELL, J. The plaintiff has failed to prove notice of protest to the endorser. The record of the certificate of notice seems to have been made in the presence of two witnesses; but it does not appear that they signed it. Not being in conformity to the statute, the certificate was not proof of notice, and the certified copy of it should have been rejected. See statutes of 1821 and 1827. Gas Bank v. Nuttall, 19 La. 449. Deblieux v. Bullard, 1 Rob. Rep. 67. It is decreed that the judgment of the court below be reversed, and that there be judgment for the defendant, as in case of non-suit, the plaintiff' paying costs in both courts. CROUCH V. LOCKETT et al. A mortgage on slaves, recorded in the mortgage office of the place where the debtor had his domicil at the time of the inscription, will be unaffected by his subsequent removal with the slaves to another parish, and the acquisition of a domicil there. No inscription is ne cessary in the parish of his new domicil. CROUCH v. LOCKETT. Α' PPEAL from the Fourth District Court of New Orleans, Strawbridge, J. H. A. Bullard, for the plaintiff. L. Pierce and Dunbar, for different intervenors. Goold, for the defendant, Lockett. The judgment of the court was pronounced by ROST, J. The parties to this controversy are mortgage creditors of John Dodd, and severally claim to be paid by preference out of the proceeds of a judicial sale of certain slaves of the debtor. Crouch obtained a judgment in the parish of Rapides, where Dodd had his domicil at the time, and recorded it on the 17th December, 1844. At the subsequent term of the court, Lockett obtained a judgment against Dodd, which judgment was recorded on the 6th of June, 1845. In the winter of 1845 Dodd removed to New Orleans, with the slaves he owned in the parish of Rapides. Lockett recorded his judgment in the parish of Orleans after the arrival of Dodd. Cammack subsequently obtained a judgment against Dodd, which he recorded in the parish of Orleans. He also became subrogated to the rights of Lockett, and, having caused the slaves to be seized and sold, he became the purchaser. Cammack then intervened in the suit of Crouch v. Lockett and the Sheriff, instituted to recover the proceeds under a previous sale to Lockett, which had been annulled, and asserted his right to retain the proceeds, on the ground that the mortgages he held were the only ones recorded in the parish of Orleans where Dodd had his domicil at the time of the seizure. The Gas Bank having a judgment recorded before any of the others in the parish of Rapides, also intervened. There was a judgment in favor of Cammack, and the other parties appealed. The legal question which this case presents is, whether a mortgage recorded in the parish where the debtor had his domicil at the time, continues to operate on his slaves after he acquires a domicil in another parish, or whether an inscription is necessary in the parish of the new domicil. It was held not to be, by the late Supreme Court, in the case of The Commissioners of the New Orleans Improvement and Banking Company v. Jewett, 11 Rob. 20. In the case of Cumming v. Biossatt, 2 Ann. R. 794, determined in the western district, we had occasion to reconsider that decision, and after mature deliberation we adopted its conclusions. The certainty of the rule it established appeared to us much in its favor, and we were impressed with the belief that, on the adverse hypothesis, questions of change of domicil would give rise to more litigation, inconvenience, and hardship, than can possibly result from its application. Nearly one third of the mortgages held by the property banks to secure the bonds of the State issued in their favor, are on slaves. If those mortgages lost their rank by the change of domicil of the debtors, which it is impossible for the banks to know in time to protect themselves, those securities might be defeated at pleasure. The inherent difficulty of the subject arises from the application of registry laws originally framed for lands exclusively, to things essentially moveable in their nature, and immovable only by a fiction of law. We believe the interpretation adopted by the former court to be that which the legislature intended. The judgment must be reversed, and the mortgages classed and satisfied in the order of the dates of their inscription. It is therefore ordered that the judgment of the court below be reversed, that the defendant, Johu L. Lewis, sheriff, do pay out of the proceeds of the sale of the slaves of John W. Dodd, made under the executions in the case of the New Orleans Gas Light and Banking Company v. Dodd, and Cammack v. Same, the following sums of money in their order: 1st, to the Gas Light Company, the sum of three hundred and seventy five dollars, with seven per cent per annum interest thereon, from the 4th of January, 1843, subject to a credit of seventy five dollars, paid the 1st June, 1845, the costs of said judgment appearing to have been paid. 2nd, To Winder Crouch, the sum of five hundred and fifty dollars, with ten per cent per annum interest thereon, from the 4th January, 1844, and costs, being the amount of his judgment against J. W. Dodd, or that said sheriff pay to said Crouch so much as remains in said sheriff's hands after payment of the aforesaid sums of money to the Gas Light Company as first before mentioned. And if any further sum of money should remain from said sale after the satisfaction of said judgments, that it be paid over to the defendant, R. C. Cammack, as assignee of Henry Lockett; and it is further ordered that the said defendant, R. C. Cammack, pay the costs of this suit in both courts. CROUCH v. LOCKETT. MICHEL v. POLICE JURY OF WEST BATON ROUGE. Where, in consequence of the failure to give to the owner of a plantation the notice required by the police regulations of the parish, of the work to be done in making a road and levée on his plantation, the contractor to whom the work was adjudicated cannot proceed summarily to seize and sell the land, he may recover from the police jury the amount due un der his contract. The record of the proceedings of a police jury, though not in the english language, were admissible in evidence while the constitution of 1812 was still in force. A PPEAL from the District Court of West Baton Rouge, Farrar, J. G. S. the court was pronounced by EUSTIS, C. J. The plaintiff, who represents Joseph Claudel, to whom was adjudicated the making of the road and levée on the plantation of the heirs of Collins Blackman, situated on the river Mississippi, in the parish of West Baton Rouge, took his executory proceedings against the land, which were enjoined on the ground that notice had not been duly given to the proprietors according to the requisition of the police regulations of said parish. See 12 Robinson, 593. On the failure of his recourse against the land he sued the police jury, and obtained a verdict for the amount of the adjudication, to wit, $1,580, for which judgment was rendered with interest from judicial demand. Under the authority of the cases of Croizet v. The Police Jury of Pointe Coupée, 1 La. 109, Morgan v. The Same, 11 La. 158, Newcomb v. The Police Jury of East Baton Rouge, 4 Robinson, 233, and O'Brien v. The Police Jury of Concordia, 2 Annual R. 355, we think the defendants are liable to the plaintiff. A bill of exceptions was taken to the admission of the record of the police jury conferring the office of inspector of roads and levées on Robert L. Knox, by whom the adjudication to Claudel was made. Knox having been avowedly and publicly the officer of the parish, and made contracts in that capacity, and been recognized constantly as such by the defendants, it is questionable as to what extent, in a case of this kind, they would be permitted in a court of justice to dispute his authority. The objection is that, the record of the police jury is not in the english language. MICHEL V. When the provision of the constitution of 1812, under which this exception POLICE JURY. Was made, relating to the public records of the State, was first brought before our courts for consideration, the subject was thoroughly examined, and several decisions were made upon its extent and intendment, and we at this remote day consider it a sufficient answer to the objection made to the admission of the evidence, that no court in this State has ever, to our knowledge, recognized it as tenable. We consider that the court did not err in rendering judgment for the plaintiff under the evidence. We cannot reverse the judgment on account of the allowance of interest from the judicial demand. It is legally due, and if the judge of the first in stance had not given it to the plaintiff, we should have given it. 3 124 47 1470 Judgment affirmed. MORGAN V. DRIGGS. A contract between an attorney and client, by which the latter agrees to give to the former To authorize a debtor to enjoin an execution on the ground of his being the holder of notes A PPEAL from the District Court of Pointe Coupée, Farrar, J. Cooley, for the appellant. Ratliff and Cowgill, for the defendants. The judgment of the court was pronounced by SLIDELL, J. Driggs, having obtained a judgment against Morgan, issued execution, and Morgan then obtained an injunction upon the following grounds: 1st. That the fees of the clerk of the Supreme Court, included in the writ of fieri facias, had been paid by him. 2d. That when Driggs was about to institute his suit against Morgan, he employed William Beatty, a member of the bar, to attend to the suit, and agreed to give him thirty-three and one-third per cent of the amount recovered in said suit, as a compensation for his professional services therein; and that by virtue of said agreement the said counsel was entitled to receive one-third of the amount of the judgment to be rendered in favor of Driggs against Morgan. That Beatty transferred his rights to Marshall, who transferred them to Ilsley, who transferred them to the present plaintiff. 3d. That he is the holder of several notes, drafts, and due bills made by Driggs; that Driggs has made a simulated transfer of his judgment for the purpose of defeating his offsets, and that the notes, drafts, and due bills were owned and held by him prior to the transfer of the judgment. |