Saloy vs. Collins.

petition. The judgment dissolving the injunction, with damages and costs, decided all the points in controversy between the parties; and it was, therefore, a final judgment; C. P. article 539; which the law required the judge to sign. C. P. art. 546.

This court has jurisdiction of appeals from final judgments, C. P., art. 565, and of such interlocutory judgments as may cause irreparable injury. Art. 566. But an interlocutory judgment, which need not be signed, is merely a decision on preliminary matters, which still leaves the merits to be disposed of by the definitive judgment. C. P. art. 538. No appeal lies from a definitive judgment until it is signed. The appeal, therefore, in this case was premature, and this court is without jurisdiction to entertain it, or to make any further inquiry touching it. The appeal therefore is dismissed with costs.

No. 6461.

POLICE JURY OF THE PARISH OF PLAQUEMINES VS. JAMES FOULHOUZE ET AL.

The right to an office will not be considered on any rule taken in this court.
If it appears from a scrutiny of all the provisions of an act of donation inter vivos
that it was the real intention of the donor, and of the donees, that the land con-
veyed by the act should be dedicated to public use, such land will be held as thus
dedicated.

Property dedicated to public use is not liable to seizure and sale.
Property held by a municipal corporation in trust for public uses can not be alien-
ated by the corporation, nor subjected to seizure and sale by any of its creditors.
Where a certain tract of land has been dedicated to public use-the whole of it
remains thus dedicated, although only a part has been actually put to public use.
Nor is this dedication at all impaired because a part of the land has been tempo-
rarily leased to private individuals.

A

PPEAL from the Second Judicial District Court, parish of Plaquemines. Pardee, J.

R. T. Beauregard, District Attorney pro tem., and Henry Chiapella for plaintiff and appellee.

E. Howard McCaleb for defendants.

The opinion of the court was delivered on the rule by
MANNING, C. J., and on the merits by SPENCER, J.

Mr. R. T. Beauregard applied to this Court to be recognized as District Attorney pro tempore of Plaquemines Parish, and exhibited a commission therefor. The order was made, though there was no occasion for either the application or the order. Shortly thereafter he filed a motion in this cause, and thereupon T. A. Flanagan took a rule upon him to shew cause why this order of recognition should not be rescinded,

Police Jury of the Parish of Plaquemines vs. Foulhouze et al.

this relator alleging that he is the legal District Attorney pro tem. of that parish.

This has the appearance of an attempt to determine the contestation for an office under the guise of this rule to rescind an order. We shall take no action in the case until it has been determined, judicially or otherwise, who is the person to represent the parish in this suit.

We shall dismiss the rule, and rescind the order of recognition, thus restoring all parties to the status quo and

It is accordingly so ordered.

*

*

ON THE MERITS.

*

*

SPENCER, J. Defendants being judgment creditors of the parish of Plaquemines issued execution, seized and advertised for sale "a certain tract of land * having and measuring one arpent front by thirtysix arpents in depth, bounded in front by certain lands belonging to the parish of Plaquemines on which are situated the Court House and jail of said parish, etc." The said land being the thirty-six rear arpents of a certain tract, acquired by defendant, the parish of Plaquemines, from Jacques Larose by Act of Donation inter vivos passed before Ed. Barnett, notary, etc., on the twentieth of June, 1846." The land thus seized, together with that referred to as containing the Court House and jail, constituted a tract which, as stated, was donated by Larose, "to the inhabitants of the parish of Plaquemines." The Act of Donation contains the following clauses: the donor declares "that he does by these presents make donation inter viros, gratuitous and irrevocable, unto the inhabitants of the parish of Plaquemines in this State, their heirs and successors, herein represented by Messrs. Andre Casse, Geo. N. Johnson and Geo. N. Buford, duly authorized, etc., by the police jury of said parish, accepting the same for said inhabitants, and acknowledging possession thereof, a certain arpent of land, etc. ---describing the land aforesaid—“To have and to hold the said arpent of land and appurtenances, unto the said inhabitants, etc., to their proper use and behoof forever."

"The present donation is made on the express condition that said inhabitants shall build and erect the Court House of the aforesaid parish on the piece of ground herein above described. "

The Court House and jail were erected on that part of said tract fronting on the Mississippi river. It seems that the police jury in 1875 leased the rear portion of said tract-the thirty-six arpents now seized – to one Cantrelle, who cultivated it in rice.

Police Jury of the Parish of Plaquemines vs. Foulhouze et al.

The police jury send out this injunction against the sale of said land under execution as aforesaid, on the ground that the same had been dedicated to public use and was "hors de commerce.”

The Court a qua so held, and the defendants appeal.

There can be no doubt that Larose, by said donation, intended to set apart the land in question to a public use. He declares that the donation is made "on the express condition" that the donees should build the Court House thereon. The appellants in their argument admit that this was the motive which induced the donation, but say it was not a condition of the donation. It matters not whether this stipulation was or was not a condition in the technical sense of that term. It is the duty of this court to ascertain the intent, "the motive" actuating the parties, and to give effect thereto if not unlawful. The right of Larose to dedicate this piece of property to public uses is not disputed. If such was the motive and intent which actuated him to make the donation-and if the donation was accepted for the purpose intended by the donor, it would seem past all controversy that the act of donation was intended to, and did, dedicate the property given to the use of the public.

Property dedicated to public use can not be the subject of private ownership. It is out of commerce, and not liable to seizure. R. C. C. 449, 454, 455, and 458. Police Jury of Baton Rouge vs. Michel 4 A. 84, 7 A. 595, 18 A. 560, 2 A. 527, 21 A. 244, 29 A. 38, 630-Dillon on Municipal Corporations, Sec. 531.

It is, perhaps, not unworthy of note that this donation is made "to the inhabitants" of the parish of Plaquemines, and not to the parish in its corporate capacity. If the corporation can in any sense be deemed the owner or holder of the property donated, it owns or holds it, by the very terms of the act, "for the proper use and behoof forever” of the inhabitants.

"A municipal corporation has no implied or incidental authority to alien or dispose of for its own benefit property dedicated to, or held by it, in trust for the public use, nor can it extinguish the public uses in such property, nor is such property subject to the payment of the debts of the municipality." Dillon on Municipal Corporations, Sec. 512.

"Municipal corporations possess the incidental or implied right to alienate or dispose of their property, real or personal, of a private nature, unless restrained by charter or statute: they can not, of course, dispose of property of a public nature, in violation of the trusts upon which it is held, nor of the public squares, streets or commons. The distinction is between property which a corporation may own, the same as a natnral person, and that which it holds in general or special trust.” Dillon on Municipal Corporations, Sec. 445.

Police Jury of the Parish of Plaquemines vs. Foulhouze et al.

What the corporation can not itself do directly, can not be done indirectly by judicial process.

We see no significance whatever in the fact that the whole of the donated tract is not in actual public use. It suffices that the public has a right to use. Nor does the fact that the part seized was cultivated in rice in 1875, under lease from the parish, operate to deprive the public of its rights of use. We have just seen that the parish can not directly or indirectly divest the property of its public character. How much of said property is or is not needed for the use of the public, is not, in its nature, a judicial question. It suffices for us to know that the public has a right to the use of the whole, and, for aught we can know, may have some day necessity for its use. Fifty years hence the Court House and jail may be, by encroachments of the river, driven to what is now the rear arpent of the tract. But these are considerations with which this Court has nothing to do. We must ascertain and enforce the rights of parties-which are governed by the law and not by the river.

There is no error in the judgment appealed from and it is affirmed with costs of both courts.

No. 6652.

J. M. SERRA É HIJO VS. HOFFMAN & Co.

In determining what effect the discharge in bankruptcy of a principal debtor will have on the obligation of his surety, this court will be guided by the law of Louisiana and not by the bankrupt law.

Under the law of this State the discharge in bankruptcy of the principal on an appeal bond, will not, release the surety on that bond from any obligation he incurred by signing the bond.

The surety who pays the debt of his principal is subrogated, by mere operation of law, to all the rights of the creditor. No act of subrogation by the creditor, in his favor, is required.

A

PPEAL from the Fifth District Court, parish of Orleans.

J.

Geo. L. Bright for plaintiffs and appellants.

Hudson & Fearn for defendants.

The opinion of the court was delivered by

Rogers,

SPENCER, J. Plaintiff obtained judgment against Hoffman & Co. for $1945 29 in gold, with five per cent interest in gold from twenty-sixth November, 1872, and costs.

Defendants took a suspensive appeal, giving Wolkart as surety on the bond. Pending this appeal, Hoffman & Co. were adjudged bankrupts and discharged as such.

Serra e Hijo vs. Hoffman & Co.

The appeal was tried and the judgment below affirmed against Hoffman & Co. who, however, afterward pleaded their discharge from the judgment.

The plaintiff thereupon in due form proceeded against the surety for the amount of the judgment against Hoffman & Co. The surety pleaded that he was released by reason of the discharge in bankruptcy of his principals; and the court below so held. Plaintiff appeals, and the question is presented to this court.

Counsel on both sides have discussed this question, as one depending on the bankrupt law, and have cited us to numerous authorities from the reports of other States, pro and con. As might be expected there is considerable conflict among them, and for the simple reason, no doubt, that these courts were governed by different systems of law.

The bankrupt law undertakes to regulate and govern the rights and obligations of the bankrupt only. It provides the manner and effect as to himself of his discharge, but in no way undertakes to determine the effect of his discharge upon the obligations of others--out of superabundance of caution, however, the 5118th section of the United States Revised Statutes declares: "No discharge shall release, discharge, or affect any person liable for the same debt for or with the bankrupt either as partner, joint contractor, indorser, surety, or otherwise."

In determining the effects of a discharge of the principal, upon the obligations of his surety, we have therefore nothing to do with the bankrupt act. It is the law of Louisiana alone which governs, and to which we must look for a solution. Hence we attach but little weight to the decisions of foreign tribunals upon their own laws, differing perhaps radically from ours. It may well be that the effect of a discharge of the principal would be to release the surety, by the law of Massachusetts, and not to release him by laws of New York.

Under the law of Louisiana, therefore, does the discharge in bankruptcy of the principal release the surety?

Article 3014, O. C. C., says: "The obligation of the surety toward the creditor is to pay him in case the debtor should not himself satisfy the debt," etc.

To satisfy a debt in the sense of the law is to pay it-to perform or do the thing one is obligated to do or perform.

Does a discharge in bankruptcy operate a payment of the debt-a performance of the obligation? In a late case, "Ludeling vs. Fulton,” 29 An. 720, this court said: "A surrender in bankruptcy does not operate or have the effect of a payment. Payment extinguishes absolutely the obligation, both morally and legally. Bankruptcy is simply a bar to the enforcement of it." We adhere to that doctrine, and consider it