ERWIN

not having been expressly offered in the court below, we have not considered it. BANK OF KEN. The documents and testimony found in a record offered in evidence cannot,

v.

TUCKY.

because they form part of the record, be received as proof in another suit. If in a particular case such evidence is admissible, it is so per se on other grounds independently of the record to which it is attached. Baptiste v. Soulie, 132. R. 270. This portion of the claim in reconvention must also be dismissed.

In allowing the remainder of the reconventional demand, we deem it an act of mercy to these parties not to go into full details of all the facts disclosed in the record. The ends of justice will be answered by stating the conclusions to which the evidence has led us. We are of opinion, that the titles of Andrew Erwin, first, to the batture portion of the lot of ground called the saw-mill lot; second, to the undivided half of the batture in front of lots Nos. 1, 2, 3, 4, 5, 6, in the faubourg Delord; and third to lots Nos. 7, 8, 9, 14, 23, 24, 30, of the Pulley square are simulated; and that all those lots were at the time of the transfers to Andrew Erwin the property of James Erwin, and liable to execution for his debts.

We are further of opinion, that the judicial mortgage resulting from the judgment in the case of the Bank of Alabama v. James Erwin, has been paid and extinguished; and that the mortgage granted by the plaintiff to James Erwin, on the batture in front of the saw-mill lot, is a simulation.

It is therefore ordered that the judgment in this case be reversed. It is further ordered that the injunction be dissolved, and that the defendants be allowed to proceed under their execution. It is further ordered, that the plaintiff and A. J. Burnley, his surety on the injunction bond, pay in solido, to the defendants, the sum of nine hundred dollars damages, for the wrongful sueing out of the injunction. It is further ordered that the titles of Andrew Erwin, 1st. To the batture portion of a lot designated as the saw-mill lot, on a plan drawn by Joseph Pilié, city surveyor, bearing date the 9th of November, 1829, and annexed to an act passed before G. R. Stringer, late notary in this city, on 12th April, 1830. 2d. To the undivided half of the batture lying in front of lots Nos. 1, 2, 3, 4, 5, and 6, situated in faubourg Delord, agreeably to a plan of Joseph Pilié, bearing date 30th March, 1832, and annexed to an act passed before L. T. Caire, notary public, between D. F. Burthe and John Green, bearing date 26th April, 1832; and 3d. To lots Nos. 7, 8, 9, 14, 23, 24, and 30, on the Pulley square, according to the plan of J. Schrieber, bearing date 30th March, 1837, and deposited at the time in the office of W. Y. Lewis, notary public, be and they are hereby adjudged to be simulated; and the said lots to be the property of James Erwin, and liable to execution for his debts. It is further ordered, that the judicial mortgage resulting from the recording of a judgment of the president and directors of the Bank of Alabama, against James Erwin, rendered by the district court of this city, on the 13th January, 1843, for the sum of seventy-five thousand dollars, which judgment was transferred by the Bank of Alabama to Isaac H. Erwin, and by him to Andrew Erwin, be cancelled and erased from the records; the judgment having been paid and extinguished by James Erwin. It is further ordered, that the mortgage granted by Andrew Erwin, by act passed before Wm. Christy, notary public, on the 21st November, 1842, in favour of James Erwin, upon the batture of the saw-mill lot, to secure the sum of $25,000, be adjudged to be simulated, and that as such it be cancelled and erased from the records. It is further ordered, that there be a judgment of non-suit on the remainder of the claim in reconvention; and that the plaintiff pay costs in both courts.

PETER B. TAYLOR . HENRY PENNY.

An agreement with A. that he might have a fourth interest in a stranded vessel which B. had purchased and which had to be gotten off, did not vest in A. an interest which he could transfer to a third person without the consent of B. It was an agreement to take in A. as a partner, and gave him no right to impose an unknown partner on B.

A

PPEAL by plaintiff from the Fourth District Court of New Orleans, Strawbridge, J. Submitted by J. A. Rozier, for appellee. The judgment of the court was pronounced by

EUSTIS, C. J. On the 8th January, 1847, the brig Mount Vernon, then lying stranded at the bar of Tampico, was sold under an order from the American Consul, appointing competent persons to hold a survey on said brig. The sale was made by the plaintiff, who is an auctioneer, at public auction in Tampico, and the defendant became the purchaser for the sum of $1,050, of which the sum of $750 was received. The petition alleges, that subsequent to the sale the plaintiff sold one fourth of his interest to Edwin B. Jenkins, for the price of three hundred dollars, who assumed to pay such part of the whole price, and that the plaintiff advanced said sum on account of said Jenkins; that subsequently, to wit, on the 9th Jannary, the said Jenkins sold to the plaintiff his fourth interest in the brig as she lay for the price of $325, which sum was paid by the plaintiff.

This fourth interest in the brig Mount Vernon is the subject of the present suit. There was judgment for the defendant in the court below, and the plaintiff has appealed. The case has been submitted on a printed argument of counsel in behalf of the defendant, but no argument has been offered in behalf of plaintiff. It appears that the matter in dispute between these parties was adjudicated upon by the bench of justices at Tampico, a tribunal instituted by the military commander at that port, which was at the time in the occupancy of our forces. It was held by that tribunal, that the defendant was the and that the plaintiff had no interest whatever in her. bunal, it has been alleged, is res judicata between the pleaded in bar of the present action of the plaintiff.

sole owner of the brig, The decree of this triparties, and it has been

The full evidence on both sides being before us, we deem it unnecessary to determine on the force and effect to be given to this decree, inasmuch as our conclusions on the merits of the cause are in concurrence with it.

The testimony is very voluminous and on some points contradictory, but we think it clear that Jenkins never had an interest in the brig that he could transfer without the consent of the defendant. The defendant we think agreed that Jenkins might have a fourth interest. The brig was stranded, she was to be gotten off. Jenkins was a mariner as well as the defendant and could have aided in that object. The agreement of the defendant was, evidently, personal, and did not create an interest which could be transferred. It was an agreement to take Jenkins as a partner, but gave him no power to impose on the principal party in interest an unknown or an obnoxious partner; nor does it appear that this agreement on the part of the defendant was acted upon or carried into effect in any manner by Jenkins, except by this attempt to sell out to the plaintiff. The judgment of the district court is therefore affirmed with costs.

5 8

46 634

J. F. E. LIVAUDAIS & J. S. DAVID V. MUNICIPALITY No. Two...

Places of public worship as well as places of public amusement are, in this State, invariably private property; and no dedication to the public can be predicated upon the designation of such places in the plans of division of towns. Licaudais v. Municipality No. Two, 16 L. R 509, affirmed.

A defendant will not be allowed the benefit of the presumption of a dedication of property to public use, from long possession and the perfection of the title by prescription, when such pretensions are inconsistent with the answer filed, and in direct violation of the admissions of that party in the record.

If courts are authorized in certain cases to relieve municipal corporations from the bad pleading or ill advised admissions of their counsel, the necessity for such interference must be apparent.

A

PPEAL by defendants from the Fifth District Court of New Orleans.
Buchanan, J.

P. Soulé, for apppellees, cited, upon subject of dedications of property to public uses, Mathews on Presumptive Evid. 333, 334. Drummer v. Jersey City, 1 Spencer, 8. The State v. Marble, 4 Iredill, 318. Green v. Chelsea, 24 Pick.

71.

R. Hunt and C. Roselius, for appellant, cited, 3 Bing. 447. 18 L. R. 291. 3 A. R. 284. 6 Peters, 435. 10 Peters, 662. 5 L. R. 142.

The judgment of the court was pronounced by

ROST, J. The plaintiffs claim a square of ground alleged to be situated in the centre of Annunciation Square, being No. 34 on the original plan of division of Faubourg Annunciation, made by Barthelemy Lafon, in 1807; this square measuring two hundred and forty six feet on Race and Orange streets, and two hundred and ten feet on the sides fronting squares No. 26 and 42.

The intervenors in right of their mother, claim one undivided fourth of said square.

The defendants filed a general denial, and alleged in a supplemental answer that the ground claimed is a public place, ultrá commercium; that the founder of the faubourg Annunciation laid off and dedicated the whole space of ground covered by Place de l'Annonciation, without any exception or reservation of the centre, as a public square for the use and convenience of the public, in the original plan of the faubourg. That the dedication further results from the sales of the surrounding squares and lots in conformity and with reference to said plan. That it has been duly accepted, and that the public has been in undisturbed and quiet possession, under said dedication, for upwards of forty years, by which its right thereto has been perfected by prescription. There was judgment in favor of the plaintiffs, and the defendants appealed. This case is not distinguishable from that of Livaudais v. Municipality No. Two, 16 L. R. 509. The plaintiff in that case claimed the square No. 63 on the same original plan of division of Faubourg Annunciation. That square was colored and marked on the plan as the other squares, but instead of being divided into lots, the word colisée was written upon it. There was no evidence of the alleged dedication out of the plan, and none in the plan out of the word colisée. The court was of opinion that places of amusement were private property, and that the desig

*SLIDELL, J. did not take part in the decision, considering himself interested in the matter.

nation of such places on a plan, could not be construed as a dedication to public LIVAUDAIS AND

use.

The square No. 34 is colored as the other squares in the plan. The spaces left open between squares No. 34 and 26 on the one side, and squares 34 and 42 on the other side, have the color of the streets, and the words Place de L'annonciation are written upon them.

On square No. 34 is depicted the ground plan of a building in the form of a Greek cross, having a cupola in the centre and four fronts corresponding to the four sides of the square. This building is marked on the plan Eglise de L'annonciation, and occupies the whole of the square with the exception of the four

corners.

It is too clear for argument, that this square did not pass under the dedication of the Place de l'Annonciation, and that it was designated on the plan for the erection of a church, as square 63 had been for the erection of a coliseum.

As was held in the former case, places of public worship as well as places of public amusement are invariably with us private property, and no dedication to the public can be predicated upon the designation of such places on the plans of division of towns and faubourgs.

It was urged in argument, that a dedication must be presumed from the long silence of the plaintiffs, and from the fact that the square remained unenclosed and was used as a public place from 1807 to 1836, at which time the defendants enclosed it; and that they have been in actual possession of it ever since, in consequence of which possession their title has been perfected by prescription.

The objection to this defence is, that it is inconsistent with the answer, and in direct violation of the admission of the defendants in the record; that they have no title to the property in dispute, unless the same was dedicated to the public when the suburbs Lacourse and Annunciation were divided into lots.

If we feel authorized in certain cases to relieve municipal corporations from the bad pleading or ill-advised admissions of their counsel, the necessity for our interference must be apparent. It is not so in this case. The defence suggested is not tenable.

That the square claimed was not enclosed before 1836, proves nothing against the plaintiffs, it being shown that until that time, many squares and lots were unenclosed in that part of the faubourg. The first enclosure was not made by the defendants or under their authority. It was the act of Mr. Southmayd, a private individual, who owns property fronting on that square. In 1842 or 1843 the fence was removed and the present enclosure put up. But it does not appear at whose instance this was done, or who paid for it. This evidence is too vague and unsatisfactory to prove either dedication or acceptance, nor would we consider, under any state of facts, the length of time which elapsed between the erection of the enclosure and the institution of this suit, sufficient to show an abandonment on the part of the plaintiffs of the original dedication of the square to purposes of public worship, and a clear intention on their part to dedicate it to public use. The plea of prescription does not require to be noticed. For the reasons assigned, it is ordered that the judgment in this case be affirmed with costs.

DAVID

JOHN WALKER v. MUNICIPALITY No. ONE OF NEW ORLEANS.

Under the acts of the 14th of March, 1842, and 5th of April, 1843, the banks of this State were obliged to receive their own notes in payment.

Where a bank transferred a promissory note subsequent to maturity, the holder acquired no greater rights than the bank itself had, and could be compelled to receive in payment the notes of the bank.

If a co-defendant paid the debt in specie, such co-defendant could not upon subrogation recover of the other specie, he having the right to pay the debt in depreciated bank bills.

PPEAL by plaintiff from the Third District Court of New Orleans.

A nedy, J.

Ken

T. A. Bartlett and T. W. Collins, for appellant Marsoudet and Morel, for appellee. The judgment of the court was pronounced by EUSTIS, C. J. On the 21st of June, 1845, the Improvement and Banking Company of New Orleans, recovered judgment in solido against Walker, the present plaintiff, and the First Municipality and others, for the sum of $330, with interest from the 5th of February, 1842, at ten per cent, with $5 50 costs of protest, $3 for copy of an act and costs of suit. The judgment was rendered on a promissory note of which Walker was the drawer, and which the municipality had endorsed. The note had been received as part price of a lot of land sold by the municipality to Walker, and was subsequently discounted by the Improvement Bank.

The judgment had been transferred by the commissioners of the Improvement Bank, on the 24th of June, 1845, to J. C. Thomas, who became the assignee of the judgment on the record. From this judgment Walker afterwards appealed, and the appeal was dismissed on the 8th of June, 1846. By an order of court the municipality, on the acknowledgment of Thomas that he had received the amount of the judgment with interest and costs, was subrogated to the rights of Thomas, in the judgment against the co-defendants.

The municipality took out execution against Walker, who obtained an injunction on the ground that he had tendered the amount due, in notes of the bank, with the amount of the costs in specie, to the commissioners of the bank, subsequently also, to Thomas when he held the judgment, and finally, to the sheriff on the execution enjoined.

The injunction was dissolved by the court of the third district, and the plaintiff has appealed.

The judgment which the commissioners of the Improvement Bank obtained against the municipality and its co-defendant, Walker, was payable in the notes of that bank. Under the acts of 1842 and 1843, relative to the liquidation of banks, it was imperative on the commissioners to receive the notes of each bank in the payment of its debts. This measure was enacted for the purpose of absorbing the circulation of the banks, and quickening the liquidation of their concerns. Its legality has been sanctioned by repeated decisions of our courts. The Commissioners of the Exchange Banking Company v. Mudge, 6 Rob. 387. French v. Stanton, 1 Ann. 8.

Thomas bought this judgment from the Commissioners of the Improvement Bank on the 27th of June, 1845, at private sale. It was not sold at auction among the assetts of the bank, but was purchased by Thomas under a resolution