Conrad, Assignee, v. Prieur, Recorder of Mortgages.

registry on the books of the Recorder of Mortgages, which, unless erased, would prevent the sale of the bankrupt's property, and, consequently, the settlement of the estate. It constitutes, therefore, to my view, such an adverse interest as is contemplated by the eighth section of the law, and upon which the assignee was authorized to bring suit. This section, and the sixth, were clearly intended to clothe the District Court, sitting in bankruptcy, with all the powers necessary to effect a final settlement and liquidation of the affairs of the bankrupt. Upon the whole, I have come to the conclusion that the District Court of the United States acted within the scope of its jurisdiction, and had full authority to make the order, which it did, to the Recorder of Mortgages, and that the latter, in the performance of his official duties, was bound to obey such order, and erase the mortgage in question.

In corroboration of this view of the subject, the counsel for the assignee has called our attention to the last proviso of the second section of the bankrupt act. It is in these words: "that nothing in this act contained shall be construed to annul, destroy, or impair any lawful rights of married women, or minors, or any liens, mortgages, or other securities on property, real or personal, which may be valid by the laws of the States respectively, and which are inconsistent with the provisions of the 2d and 5th sections of this act." It is said, that although this proviso is general in its terms, it was inserted at the instance of the Louisiana delegation in Congress, in view of the difficulties which would inevitably have attended the operation of the bankrupt law in this State, in consequence of the peculiar character of our privileges and mortgages. Its express object, it is contended, was to secure to the persons therein mentioned, and others similarly situated in Louisiana, the right of being paid out of the proceeds of the property subject to their privileges and mortgages, as they were under the State law, and therefore, to authorize every thing which was necessary to attain that end. Such appears to have been the construction given to this proviso of the law, by the United States District Court in this District. Its rules and regulations have been made in accordance with this construction. Mortgaged property, to an immense amount, has been sold under it, and the rights of the privileged and mortgage creditors have been allowed and

Conrad, Assignee, v. Prieur, Recorder of Mortgages.

recognized to exist, as they stood under the State law. In con clusion, I must say, that even if I had any doubt on the subject, I would not put upon the act of Congress a different construction from that given to it by the District Court, whose decision is final. In relation to the mutual respect, which, in my opinion, the Federal and State courts should show for the decisions of each other, the Supreme Court of the United States have said: "the judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. Hence, the construction given by this court to the constitution and laws of the United States, is received by all as the true construction; and hence, the construction given by the courts of the several States to the Legislative acts of those States, is received by us as true, unless they come in conflict with the constitution, laws, and treaties of the United States." 10 Wheaton, 160. See also 16 Johnson, 248. 17 ibid. 108.

SIMON, J. I concur in opinion with my colleague, Judge MORPHY, and conclude that the judgment of the Parish Court ought to be affirmed, with costs.

GARLAND, J. For the reasons stated in the opinion read by Judge MORPHY, and for those stated in an opinion which I have prepared in the case of Clarke, assignee of Zabriskie v. Rosenda and another, ante, p. 27, I concur in the opinion, that the judgment of the Parish Court should be affirmed.

BULLARD, J., dissenting. I must content myself with expressing my dissent, not having strength to develope, at any length, the reasons on which it is founded. My views, generally, in re lation to the late bankrupt law, are expressed at length in the case of Clarke, assignee, v. Rosenda and another, ante, p. 27. This case, it appears to me, presents a dilemma. Either the United States Court, sitting in bankruptcy, has, or it has not, plenary jurisdiction over the whole subject of mortgages, and has a right to decide on the rights of mortgagees. If it has, then it follows, that that court may order evidences of mortgages to be erased; and may direct the Recorder, as a ministerial officer, to perform

Conrad, Assignee, v. Prieur, Recorder of Mortgages.

the act. Upon that supposition, what has a State tribunal to do with the matter? Since when have the State courts become the auxiliaries of the federal tribunals, and been expected to play so poor a part, as to lend their aid blindly, in registering their decrees and ordering State officers to carry them into effect. I find nothing of this kind in the constitution, or jurisprudence of the United States.

Again if we are to pronounce ourselves upon the right of second mortgagees, and upon the authority of the Recorder to efface from the record the evidence of their rights, then it must be done with proper parties before us-auditis audiendis. Who are the parties before us? None other, as I understand it, than the assignee and the Recorder of Mortgages. None of the parties, whose rights are to be affected by this proceeding, are before us; nor have they had an opportunity to be heard, by forming a contestatio litis. In the case of Gasquet v. Dimitry, we refused to order the Sheriff to erase the mortgage, without hearing the mortgagee. Our venerable senior, who does not sit in this case, delivered the opinion of the court in that. 6 La. 453.

Does the Recorder of Mortgages wish to shelter himself behind the authority of this court, he must bring with him those whose rights are to be affected by the act required to be done by hiin. Otherwise, it is clear the mortgagees would not be precluded, either by his acts, or even by the judgment of this court. The Recorder of Mortgages does not represent those whose mortgages are inscribed upon his register. If the mortgagees had been made parties in the Parish Court, they might have denied the existence of any judgment in the District Court of the United States against them. They might have shown, that the proceedings on the part of the first mortgagees were illegal and void, and that, consequently, their rights are not to be impaired. In fine, they might have placed their case in such a form before the court, claiming under the act of Congress to have their rights as mortgagees secured and protected, as, in the event of a judgment here, in the highest State court, against them, they might have prosecuted a writ of error to the Supreme Court of the United States. Instead of that, what have we? An assignee of a bankrupt, who asserts in his favor a judgment of the Bankrupt Court, and a Re

Benjamin, Assignee, v. Prieur, Recorder of Mortgages.

corder of Mortgages, who has no more interest in the case than the clerk of this court, and who has not, in relation to mortgagees, any facultas standi in judicio. I cannot consent to aid in such a proceeding, in which, we either merely carry into effect the judgment of a court of the United States, or decide upon important questions without having before us, as parties, those whose interests and rights are to be affected by our judgment.

My opinion, therefore, is, that the judgment of the Parish Court should be reversed.

Judgment affirmed.

J. P. BENJAMIN, Assignee of Louis Florian Hermann, a Bankrupt, v. DENIS PRIEUR, Recorder of Mortgages for the Parish of Orleans.

APPEAL from the Parish Court of New Orleans, Maurian, J. Benjamin, pro se.

Roselius and Grymes, for the appellant.

MORPHY, J. This case presents the same question as that of F. B. Conrad, assignee, praying for a mandamus, ante, p. 49, and must receive the same decision, on the same grounds.

Judgment affirmed.

CHARLES MARSHALL JONES v. DAVID SIDLE and another.

The signature of the appellant is not necessary to an appeal bond; it is enough that it be signed by a sufficient surety.

RULE on the plaintiff to show cause why he should not be restrained from proceeding under an execution, issued by the Commercial Court, Watts, J.

BULLARD, J. The plaintiff having obtained judgment against the two defendants jointly, they took what they considered a suspensive appeal, returnable on the first Monday in April, 1843, and

Jones v. Sidle and another.

which has been returned accordingly, and is now pending in this court. The plaintiff, after the appeal was allowed, and the bond given, took a rule upon one of the defendants, Stewart, to show cause why execution should not be issued, as to him, on the . ground that he had filed no appeal bond, as required by law, and in accordance with the judgment rendered against him. This rule was made absolute, and the execution ordered to issue against Stewart, on the ground, that he had not, signed the appeal bond, the sufficiency as to the amount and solvency of the surety being admitted.

Thereupon Stewart, by his counsel, applied to this court for a rule on the plaintiff, to show cause why he should not be restrained from proceeding under his execution; and an order was given at the same time to the Sheriff, to desist from proceeding, until the further order of this court.

The reason given by the Judge of the Commercial Court, for ordering execution to be issued, as to one of the debtors, was, that no appeal bond had been filed as to the defendant, Samuel Stewart. This judgment was given after the appeal had been prosecuted, and while it was pending in this court.

The original judgment was, that the plaintiff recover of Sidle $925, and of Stewart $925. They had been sued together as Sidle & Stewart. They applied, by the same petition, for an appeal; and it was allowed on their giving bond, with good and solvent surety, in a sum exceeding, by one-half, the amount of the judgment. The bond was given within the proper time, for a sufficient amount, and was signed by a solvent surety. It purports to be signed Sidle & Stewart, but it is admitted that the signature was written by Sidle. The amount is twenty-eight hundred dollars, more than sufficient to cover the whole judgment, as to both defendants. It is clear, that if neither of the principals had signed the bond, it would have been sufficient if signed by a sufficient surety. The true test is this:-could the plaintiff, in the event of his judgment being affirmed on appeal, recover against the surety, the amount of his judgment against Stewart, as well as that against Sidle; and of this, we entertain no doubt. The condition of the bond is, that Sidle & Stewart shall prosecute their appeal, and satisfy such judgment as may be rendered