Livingston's v. Story

delivered the opinion of the Court.

The legal question to be decided in this case, depends altogether upon the facts disclosed in the bill, answers, and documentary evidence on the record.

The complainant charges, that some time previous to the 25th July, 1822, being in want of money, he applied to the defendant, and John A. Fortj for a loan, offering as security, a lot on the batture of the suburb St. Mary, between Common and Gravier streets, in New Orleans, on which a building intended for stores, had been *378begun; that the defendant and Fort, had agreed to lend him twenty-two thousand nine hundred and thirty-six dollars, of which a part only, was paid in cash, part in a note of John A. Fort, and eight thousand dollars of which, was, afterwards, agreed between himself, the defendant, and Fort, to be paid by Story and Fort, to one John Rust, a mechanic; who had contracted with complainant, to complete the stores; that to secure the payment of the money borrowed, complainant- conveyed to Fort and Story the lot of ground mentioned; and that contemporaneously with the' deed of sale, they executed on their part, an instrument in writing, called a counter-letter, by which they promised, on the payment of twenty-five thousand dol-' lars, on or before the 1st day of February, 1823, to.reconvey to the complainant the property which he had conveyed to them. The complainant further charges, that of the sum of twenty-five thousand dollars, to be paid by him on the 1st of February a part of it was made up by a charge of interest, at 18 per cent, per annum upon the amount of twenty-two thousand nine hundred and thirty-six dollars, actually advanced to him, and on his account to Rust, by Fort and Story. The complainant also'transferred his written contract with Rust, to the defendant and Fort, rendering himself responsible for the proper employment of the eight thousand dollars by Rust, and which was to be paid Rust in weekly payments, by the defendant" and Fort. Rust, on his part, consented to the transfer of his contract, and accelpts Fort and Story in the place of complainant. The stores were to be completed by Rust, by the first of November, 1822, in a workmanlike manner, and all the materials, except those already provided, were to be found by Rust; and "in his contract, he renounces all claim or privilege upon the building, beyond the eight thousand dollars which was to be paid him by Fort and Story, for the complainant. For the deed of sale from Livingston to Fort and Story— the counter-letter t'o Livingston — Rust’s contract, and the transfer of it — all of the same' date, see documents, A B, C, ante, page 354. The complainant further charges, that soon after the transaction,' he left New Orleans, and that when he returned to it, he found that Fort and Story had paid to Rust eight thousand .dollars on his account; but that little or nothing had been done towards the completion of the stores; so that if the property had been sold on the 1st of February, according to the terms of the mounter-letter, it would, not haVe produced any'thing like its full value. That under these circumstances, be applied to Fort and Story for further time to make the *379payment of the sum loaned, which' they would not consent to, but on the following conditions: that the property should.be advertised for sale on the 2d of June, 1823; that the sum due them should be increased from twenty-five thousand dollars to twenty-seven thousand five hundred; dollars; which was so increased,, by the addition of fifteen hundred dollars as interest, at eighteen per cent..for four months, eight hundred dollars for auctioneers’ commissions, fifty dollars for advertising, and one hundred and fifty dollars, arbitrarily - added by the said Fort and Story. The complainant states, that being entirely at the mercy of Fort and Story, he consented to those terms, and executed a paper accordingly; ante, page 356. On the 2d June, the complainant being still unable to repay the actual sum advanced to him, and the additions made by the charge of interest at eighteen percent. &c. &c., he applied to Fort and Story for a further extension of the time of sale, which they consented to for twp months longer, to the 5th of August, by which, his debt to them was augmented to twenty-seven thousand eight hundred and thirty dollars seventy-six cents; he agreeing in writing, that if, on the last mentioned day, he should fail to pay twenty-seven thousand eight hundred dollars, seventy-six cents, then the lot and all the buildings thereon were to becóme the full and absolute property of Fort and Story; ante, page 356. The day came, and the complainant did not pay. The defendant had him protested, as he- had before done on the 4th of February, for his noncompliance with hi.s agreement to pay the'sum of twenty-five thousand dollars: and on that of the 5th of August, for his noncompliance with his agreement to pay twenty-seven thousand eight'hundred and thirty, dollars, seventy-six cents; and for all damages, costs and charges, and interest, suffered or to be suffered by the said Fort and Story. The defendant and Fort after this, continued in possession of the lot and buildings, until the death of Fort, which took place in 1828; and after the death of'Fort, the defendant Story retained or took possession of the property by an arrangement with the heirs of Fort. It is to be remembered that" the possession of the property was' given by Livingston to Fort and Story, on the 22d of July, 1822, when the deed of sale and counter-; letter were executed.

Here it is proper, for a full understanding of the transaction between these parties, to set out, what were the rights of Livingston, and obligations of Fort and Story to Livingston, growing out of the counter-letter, and continued by them on the subsequent agreement, *380until that of the 2d of June; when it was stipulated by Livingston, that if he failed to pay on the 5th of August, the property was to become absolute in them.

The counter-letter, after reciting that Livingston had sold and conveyed to them the lot, buildings and improvements, for the sum of twenty-five thousand dollars in cash, .declares it to be the true intent and meaning of the parties to said deed of sale, that if Livingston shall pay and reimburse to Fort and Story, twenty-five thousand dollars, on or before the 1st of. February, 18-23, then Fort and Story stipulate and bind themselves to reconvey the property to Livingston. And in case of nonpayment, at the stipulated time, than Fort and Story “covenant and agree to cause the said property to be sold at public auction, by one of the licensed auctioneers of this city, after twenty days’ public, notice, on the following terms, to' wit, twenty-five thousand dollars in cash, and the residue in equal payments, at one and two years; the purchasers giving satisfactory endorsed notes, and special mortgage on the property until final payment. The residue, after deducting the costs attending the sale, to be delivered over to the said Edward Livingston.

When the first extension of the time of payment was given, we find, substantially, the clause .of the kind just recited. It will be well to give it in terms.

Agreement between Edward Livingston and .John A. Fort and Benjamin Story:

1st. The sale of lot No. l,.on the batture, with the buildings thereon, to be postponed until the 2d of June next

2d. On that.day it shall be sold by M£Coy & Co., unless sooner redeemed, after being advertised in the Courier de la Louisiane, in .French, and the Orleans Gazette, in English, from the 1st day of May previous to sale.

3d. The -conditions of the sale shall be 27,350 dollars cash, and ' the residue at one and two years, with special mortgage: but in this sum is included 850 dollars, at which the auctioneers’ commission and charges of advertisement are calculated, which are to be deducted or reduced to what they shall really amount to, if payment be made before the 1 st of June.

4th. The overplus, after deducting the cash payment, is to be delivered to Edward Livingston.

5th. The counter-letter, executed by Messrs. Fort and Story, *381shall he delivered up, and the registry thereof annulled immediately after the signature of this agreement, made by duplicate, &e.

The defendant begins his answer by denying the right of the complainant to sue in the district court of the United States for the eastern district of Louisiana, on áccount of both being citizens of the same state; equivalent to a denial of the jurisdiction of the court over the case.

He then denies, positively and repeatedly, that Fort and himself, either jointly or separately, ever agreed to lend the complainant 22,036 dollars. So far. from any loan having been intended by the parties, he says, the negotiation for the sale of the lots began between Fort and Nathan. Morse, (the latter of whom he states as having acted for the complainant;) and that one of them informed him that the complainant wished to raise money on mortgage; that he peremptorily refused to advance any money to the complainant on mortgage. ' That this refusal was afterwards made by him to the defendant himself; and for a confirmation of . his refusal and understanding of the parties, he. refers to two notes of Morse, as a part of his answer, both of them addressed to Fort; the first dáted the 13th of July, and the other on the day the conveyance of the lot was made tó himself and Fort, by Livingston., Ante* page 360. He then states' the sale of the lot to himself and Fort; refers io the deed of sale; and, genérally, declares himself and Fort ha\te paid more than the price agreed on for the property so purchased. He then admits the execution, by himself 'and Fort, on the day qf the sale, of an instrument in writing; giving to Livingston the powetto redeem;. whereby, upon the payment of 25,000 dollars, on or before the 1st of February, they were to reconvey the property to Livingston; and if he faibd tA-pay, that Fort and Story were to sell the property so acquired and purchased, and if it brought more than 25,000 dollars, that they would give the surplus to the complainant; The answer then contains the failure of Livingston to pay; .the extension of time to him by another agreement, to the 2d of June, on which they agreed to postpone the sale; and that Livingston was. to give them a compensation for the additional chance which the tiirie allowed gave him to repurchase the lot. Upon this' agreement the defendant relies to prove an absolute bill'of sale Of the property to himself and Fort at the time of its execution; because the fifth and last clause of it annulle'd the counter-letter. The defendant recites the second failure of Livingston-to pay; the fur*382ther extension of time to him to the 5th of August, and Livingston’s stipulation, ante, page 356, by which, on Livingston’s failure to pay 27,830 dollars 76 cents, and any further sum that Fort and Story may be udder the necessity of paying for the care and preservation of the property; the lot and buildings were to become the full and absolute property’ of Fort and Story; and Livingston’s obligation to surrender and cancel all and every writing or other document in relation to the property, that may give him any equity of redemption, or other right in the premises; it being the true intent and meaning of the parties, that in case of failure of payment, that the lot and buildings, and appurtenances, are to vest in Fort and Story a full title in fee simple, forever. The defendant insists that Livingston was the guarantee of Rust, for the application of the 8000 dollars to the completion of the buildings. He then relies upon the ninety-third and ninety-fourth articles of 'the Civil Code of Louisiana, then in force in the state; to give himself and Fort an absolute and irrevocable title to the property, on Livingston’s failure to pay on the 5th of August. The articles relied on are: “ The time fixed for redemption must be rigorously adhered to, it cannot be prolonged by the judge;” and “if that right has not been exercised within the time agreed on by the vendor, he cannot exercise it afterwards; and the purchaser becomes irrevocably possessor of the- thing sold.” He reiterates his denial of any loan, or that time was given to Livingston to repay a. loan: but that the extension of time was to enable Livingston to repurchase, or to effect th.e sale of the property; and that the increase of the sum from' 25,000 dollars to 27,830 dollars 76'cents, was the sum demanded by them as the consideration of their waiver of their right to have the sale made at the time the money was payable. The defendant denies the deduction of interest at eighteen per cent, per annum, or any other.

To the second interrogatory in th&. bill, he answers, that; at the time of the purchase, he paid Livingston in a check on the United States Bank, twelve thousand and six dollars fifty-sevén cents, in a note of John A. Fort, in favour of defendant, due and paid November 25th¿ 1822, two thousand seven hundred and sixty-four dollars eighty-three cents; and to Nathan Morse, Esquire, the attorney of ,Edward Livingston, one thousand .dollars; which sum, Morse stated to Story, he considered ought to have been paid him by Livingston, for effecting a sale of the property. To the fourth interroga*383tory; which is, if Fort and- Story did not consent to postpone the sale of the property to the second of June, and did not exact, as a condition of such postponement, that the counter-letter should be cancelled,.and that the complainant should pay the sum of two thousand five hundred dollars, in addition to the twenty-five thousand dollars: and whether the sum of two thousand five hundred dollars was not made up of interest, charged for four months, at 18 per cent, per annum, of eight hundred dollars auctioneers’ commission, fifty dollars for advertising, and an arbitrary sum of one hundred and fifty dollars, the defendant answers, that Fort and himself did consent to postpone the sale: but that he does not know, except from the act, how the additional sum stipulated to be paid by them was composed; nor does he recollect any memorandum containing the -items of the additional sum.

In an exhibit by the defendant, we, however, have a more precise statement of the sum paid to Livingston.

July 26th, 1822, cash paid E. L. - - #12,006 57

27th “ J. A. Fort’s note, payable 25th Nov. - - - 2,764 83

Sept. 10th, cash paid John Rust at sundry times - 8,000 00

Interest...... 2,228 60 — #25,000

Thus, substantially confirming the allegation of the complainant, that the sum of twenty-five thousand dollars expressed on the deed of sale, as the consideration for the purchase, was made up in part of an amount of interest upon that sum, deducted by Fort and Story, contemporaneously with the execiition of the deed of sale, and counter-letter. There is this difference too between the answer of the defendant and the exhibit, that it appears, from the latter, the sum of one thousand dollars paid to Morse, which the defendant, in his answer, alleges tó have been paid by him as a part of the consideration for the lot, or on account of Livingston; was not paid to Morse until the 12th of February, 1824; more than six months after the time when the defendant considered himself and Fort, to have acquired' a full and absolute title- to the property, from the failure of Livingston to pay on the 5th of August preceding. Upon this item of money paid to Morse, we remark, that the letters- of Morse, ante, page 360, do not prove Morse to have been the agent of Livingston in negotiating the transaction between the parties; but rather that he was, if not altogether the agent of Fort and Story, the agent of both *384the parties: and that the defendant, without consulting Livingston, graduated the compensation of Morse by his own ideas of the service rendered by him; and chose to pay Morse one thousand dollars,, after he considered Livingston had forfeited -his right to redeem the property: The answer and exhibit are contradictory upon -this point; but the latter being more detailed and certain, it forces• the conclusion to which we have come as regards that item. We.must remark, too, that the' answer and exhibit are also contradictory in a more essential particular, as regards the interest alleged to have been deducted from the twenty-five thousand dollars,'at the time the deed of sale was executed; the exhibit stating the fact of interest being then deducted, and the answer denying that 18 per cent, interest was deducted, or any other.

Soon after the transaction of the 25th of. July, 1822, the complainant left New Orleans, and did not return to it until after the time within which Rust was to have had the buildings completed. They were not finished, however; and this incident deserves a. passing notice. The defendant and Fort had required- an assignment, of Rust’s contract to them; indeed it is of the same date with the. deed of sale and counter-letter, and seems to hav > been made-by Livingston and Rust for them. It was transferred with Rust’s consent, they undertaking to make weekly payments to him of 666 dollars during the progress of the work, to the amount of 8000 dollars; and Livingston rendering himself responsible for the proper employment of the money by Rust. In a short time, however, the defendant admits that he discovered Rust misapplying the money to some,other contract; and that, upon remonstrating with him against such conduct, Rust persisted in a. declaration of his intention to expend the money otherwise than in the execution of his contract. Under these circumstances, what should the defendant and Fort have done? We , think, good faith with Livingston, as they had msde themselves his agent to disburse 8000'dollars for a particular object, to which: they had become parties by the transfer of the contract, required from them in Livingstanfs absence, to have stopped further payments to Rust, notwithstanding Livingston’s responsibility for the proper employment of the money: for Rust’s obligation to them under the transferred contract, was. to have the stores finished by. the 1st of November; and as they held the funds- to be applied to that object, they should have withheld .them from Rust, when' he declared his intention not to do so, and had ceased to work upon the *385buildings. Rust’s conduct was as much a breach of his contract with them as it was with Livingston; and they should have protected themselves and Livingston, which they could easily have done. Instead of this being done, the defendant admits he continued the weekly payments to Rust after he'had discovered the. misapplication of the money; .and that but one thousand dollars of the eight thousand dollars were applied to the buildings.' They neither protected themselves, nor Livingston: and it cannot be disguised that the misapplication of the money was much more fatal to Livingston'than themselves; for the buildings being unfinished in November, Livingston was deprived of any further resources from them to aid him in redeeming the property on the 1st of February, by paying the money advanced by-them. This incident gave Livingston a strong claim upon the defendant for an extension of time; and we cannot but remark, that it has a bearing in favour of the allegation of the complainant, that by the contract of July, 1825, an absolute sale was not intended. Is it reasonable to suppose that the defendant and Fort, if an absolute sale had been ' intended, would have calmly seen the misapplication of eight thousand dollars from what they-deem their property, and taken Livingston as a'security, upon his general responsibility for-Rust; when the defendant himself declares he would not have loaned Livingston-money on any account? The consequence of this misapplication of seven thousand dollars by Rust, was to take so much from Livingston’s ability to redeem the property. The complainant, however, does not pray to be discharged from this sum, on a settlement of the transaction with the defendant; and, therefore, the payment to Rust, of eight thousand dollars, must be allowed to be a charge against Livingston.

We do not deem it necessary to make a further synopsis of the bill and answer.

They are contradictory in several points: but a careful examination' of them, and of the, documents and exhibits attached to the answer, has enabled us to fix the legal character of the transaction, throughout,, under the laws of Louisiana; whatever-may have been the designs of the parties upon each other, or their individual intentions, when the contract was made, on the 25th of July, 1822. The law of Louisiana, controls the controversy between these..parties: and the first, indeed, only question, to be determined, is, what was the legal character of the contract between them, from the execution of the first, papers to the last, on the 2d of June, 1823?

*386The defendant’s counsel do not contend that it was an absolute sale. ' The ’defendant’s answer shows it was not. He admits Livingston’s power to redeem, and their obligation to reconvey, as expressed in the counter-letter. For although the conveyance, of the 25th of July, 1822, is, in form, a positive sale, yet, the counter-letter explains .its nature as fully as if it were inserted in that conveyance.. Executed, as it was at the same time, it is a part of the contract; a separate clause, modifying and explaining the other clause, states the deed of sale. The two must be construed together. .The Civil Code of Louisiana says, ^all clauses of-agreements are interpreted the one by the other, giving to each the sense which results from the entire act;” Civil Code, 1808, p. 270, sec. 5, art 61. It can make no difference whether these clauses be on one piece of paper, or on two pieces; whether there be two separate instruments, or one instrument containing the substance of the two. The Civil. Code of Louisiana does not require that the stipulation of parties, relative to a sale of property; should be in one instrument. They are to be reduced to .writing, and the parts necessarily make up the entire contract; in this regard, corresponding with the sale in equity, which makes a defeasance attach itself to a conveyance, absolute in the first instance, converting the. latter into a mortgage, as it is expressed by chancellor Kent, in Com. 4 Vol. p. 135, treating of mortgages. “ The condition upon which the land is conveyed is usually inserted in the deed of conveyance, but the defeasance may be contained in a separate-instrument; and if the deed be absolute in the first instance, and the defeasance be executed subsequently, it will relate back to the date-of the principal deed, and connect itself with it, so as to render it a security, in the nature of a mortgage.”

We do not mean to be understood as applying this rule to make, under the laws of Louisiana, a constructive mortgage out of an absolute conveyance or deed of sale, on account of some other paper explaining or controlling the first; but have used it. only as an illustration, that by the law of Louisiana, a contract of sale, and a power fredeem, need not be in one instrument.

The contract of the 25th of July, 1822, not being an absolute salé then, what is it? It is either a conditional sale, vente a réméré, (sale with the right of redemption,) a mortgage, or a pledge. Thé defendant’s counsel say it is the first, a conditional sale, vente a.réméré. We will use their language. They say it is a contract of sale, not a *387pure and simple sale, but a sale with conditions, and á right or power of redemption annexed, vente a réméré; that the right and power of redemption stipulated for in this case, is in exact conformity with the provisions of the same code of 1808? in form and substahce, and identifies it still further as a sale, vente a réméré. That is defined to be' “an agreement or paction, by which the vendor reserves to himself the power of taking back the thing sold, by returning the price paid for it;” Civil Code, 345; and the provision of the code regulating the right of redemption, or that “ the time fixed for redemption must-be rigorously adhered to, it cannot be prolonged by the judge;” and “if that right has not been exercised within the time agreed on by the vendor, he cannot exercise it afterwards, and the purchaser becomes irrevocably possessed of the thing sold;” just as at common law and in equity, in the case of an absolute sale with an agreement- for a repurchase, the time limited for the repurchase must be precisely observed; or the vendor’s right to reclaim his property will be lost. 1 Poth. on Sale, 183; 1 Vesey, 405.

But in this instance there was no sale corresponding to the vente a réméré, unless other provisions in the counter-letter than Livingston’s right to redeem, shall be altogether disregarded. By the counter-letter, Fort and Story covenant with- Livingston upon his failure to pay, that the property shall be sold at auction, and that the residue of what it might bring over the sum which they claimed, should be paid to Livingston. Upon failure to pay, the land and buildings did not become the property of Fort and Story. The failure to pay only gave to them the right to have it sold; according to the terms prescribed, for their ow,n reimbursement. Had the contract been a vente a réméré, the land would have become- their absolute property; for the code is, “ if the right to redeem has not been exercised within the time agreed on by the vendor, he cannot .exercise it afterwards, and the purchaser becomes irrevocably possessed of the thing sold.”

The exclusion of that irrevocable, possession by Fort and Story in the counter-letter, upon Livingston’s failure to pay, destroys so principal and effective a provision of the vente a réméré, that the law will not permit us to consider the contract to have been one bf that kind.

The question then recurs, what was the nature of the contract of the 25th July, 1822? It is not a mortgage, because no property on the soil, nor right of posséssion, is given by the. contract of mort*388gage by the law of Louisiana. By that law, a mortgage is defined to be “a contract, by which a person affects the whole of his property, or only some part of it, in favour of another, for security of an engagement; but withou.t divesting himself of- the possession thereof.” In this instance possession accompanied the execution of the deed, and has continued in the defendant. It was a part of the contract, and a feature of it'entirely inconsistent. with a mortgage under the laws of Louisiana. The contract then, being neither a sale upon condition with a power to redeem annexed, a vente a réméré; we must seek further in the laws of Louisiana, to establish its legal character. After much inquiry and deliberation, and a comparison of the Civil Code of Louisiana with the civil law from which the former derives its origin, and with which it is still in close connection; we have come to the conclusion, that the original contract and counter-letter constituted a pledge of real property; a kind of contract, especially provided for by the laws of Louisiana, denominated “an antichresis.” By this kind of contract, the possession of the property is transferred to the person advancing the money. That was done in this case. . In case of failure to pay, the property is to be sold by judicial sentence; and the sum which it may bring over the amount for which it was pledged, is to be paid to the person making the pledge. In this case, a provision was made for a sale by the parties upon the failure of payment; but this feature, of. the contract is rather confirmatory of the contract and counter-letter, being an antichresis, than otherwise; for it is, at most, only a substitution by the parties of what the laws of Louisiana requires; and what we think the law requires to be done by itself, through the functionaries who are appointed to administer the law. But upon this point, let the law apeale for itself. The Civil Code of Louisiana says, “the pledge is.a contract,by-which the debtor gives something to his creditor as a security for his debt.” Tit. 20, art. 3100.

“There are two kinds of pledges; the pawn, and antichresis.”

“ A thing is said to be pawned, when a movable thing is given as security. The antichresis is, when the security given consists in immovables.” Tit. 20, art. 3102.

“The antichresis shall be reduced to writing. The creditor acquires by this contract, the right of reaping the fruits or other revenues of the immovables to him given in pledge, on condition of deducting annually their- proceeds from the interest, if any be due to him, and afterwards from the principal of his debt.” Art. 3143.

*389“The creditor is bound, unless the contrary is agreed on, to pay the'taxes as well as the annual charges of the property given to him in pledge. He is likewise bound under the penalty of damages to provide for the keeping, and useful, and necessary repairs of the pledged estate, and maydevy out of the revenues of the estate sufficient for such expense.” Art. 3144.

“The creditor does not become proprietor of the pledged immovables by failure of the payment at the stated time: any clause to the contrary is null: and in this case it is only lawful for him to sue his debtor before the court, in order to obtain a sentence against him, and to cause the objects which have been put in his hands to ibe sezed and sold.” Art. 3146:

“The debtor cannot, before the full payment of the debt, claim the enjoyment of the immovables which he has given in pledge. But the creditor, who wishes to free himself from the obligations mentioned in the preceding articles, may always, unless he has renounced this right, compel,the debtor to retake the enjoyment of his immovables. Art. 3145. These appear to us to be equitable provisions, affording ample security to the creditor, and fully protecting therights of the debtor. ’ Especially protecting the latter from a rapacious creditor, who might otherwise push his debtor’s necessities into a relinquishment of all his rights in such a contract^.to make himself the proprietor of the thing pledged, upon the failure of the debtor to pay. This is a high species of security, over which the law watches benignantly; because., though one of choice and convenience, very frequently; it is commonly the resort of distress in the last alternative, when all other means of raising money have failed. It was this high species of security, that Fort and Story received from Livingston; or their contract cannot be comprehended within any of the provisions of the Civil Code of Louisiana. If any thing else, it is a1 contract unknown to the laws of that state. We class it with .the antichresis: not because the instrument between the parties provides specifically in every particular for the rights and obligations of parties to the antichresis; but because it does so, in the main and substantial requisites.of such a contract, and from those main and sub-, stantial particulars in this contract, being irreducible to any other kind of- contract provided for by the laws of Louisiana. The property was put into the possession of Fort and Story; they looked to it to reimburse them upon the failure of Livingston to pay;, -upon that failure it did not, from the terms of the counter-letter, become *390theirs absolutely; as we see would have been,the case if it had been a vente a réméré. It was to be sold at public auction; and if a sale should be made for more than they had advanced, the residue was to be paid to Livingston. But no such sale could be made without a judicial sentence; suqh a decree was not obtained; no sale was made; so the parties stood under the contract on the 1st of February, when Livingston first failed to pay, as they did when it was first entered into. It is therefore plain, that Fort and Story acquired no absolute property in the lot and buildings, under the contract of the 25th of July, 1822; and if they did not, it was only a pledge or antichresis for their ultimate reimbursement.

We now proceed to inquire whether the antichresis was converted into a sale, by the annulment of the counter-letter after the 1st of February, 1823, under the agreement of the 4th of March. It appears by the document, ante, page 356, that the complainant did, on the last mentioned day, execute a paper annulling the counter-letter of the 25th July. But supposing the first to have been so annulled; was not the second in effect and in terms,.another instrument of the same kind, only extending the time for redemption upon consideration of Livingston’s paying á larger sum than, the twenty-five thousand ’dollars originally expressed in the first deed of sale; and providing still for a sale in the event of Livingston failing to pay a second time, and giving to him the residue, if any should remain, after they were reimbursed. Consequently, until the 2d of Juñe, the pledge continued. Livingston^ under the agreement of the 4th March, could, by paying the money at any time on or before the 2d of June, have prevented the sale; and if a sale was made, he was entitled to the overplus.

The defendant, in his answer, says, that he and Fort agreed with Livingston to postpone the sale until the 2d of June, for which Livingston agreed to pay them, a compensation, &c. &c.; that he had until the 2d of June to redeem, but did not do so;- that then the property was to have been sold, &c. &c. Thus showing, that the property in his possession continued to be a pledge; and in case of Livingston’s not paying, that a sale was to be made, notwithstanding the annulment of the counter-letter. But for what purpose was the counter-fetter annulled? Clearly, because an increased sum was to be paid to Fort and Story by the second agreement; and not because it was the intention .of the parties to alter, substantially, their respective rights in the property. The counter-letter, the agreement to sell at *391a fixed day, and after reimbursing the defendant and Fort, to deliver the surplus proceeds of the sale to Livingston; the prolbngen agreement to sell after annulling the first counter-letter, without any renunciation of Livingston’s right to the overplus, as set forth in defendant’s answer; prove conclusively, to us, that Story regarded the contract to be, what is really made by the law of Louisiana, a contact of pledge; a security for money advanced upon property. We think it was in its inception an antichresis; and that it continued so until the 2d of June, 1823. Did it after that time retain its original character?

The agreement of the 2d of June recites, “ that it being the day fixed upon by the contract between Livingston, and Fort and Story, for the sale a't auction of the lot, &c. &e.; and Livingston having requested that the sale .might not take place for his own accommodation; on condition that Fort and Story would assent to that request, Livingston agreed to increase the sum due to them to twenty-seven thousand eight hundred and thirty dollars, (which they deem the-whole of the consideration money paid by them for said lot,) and to pay the same on the 5th of August, then- next, and any further sum that they may be under the necessity of paying for the care or preservation of the property; in which case.the property should revert to Livingston. But if he should fail to make such payment on the 5th of August, the said lot should become the absolute property of Fort and Story; it being declared-to be the true intent of the parties, in case of failure of payment, that the said lot-, with all the buildings thereon, are to vest in Fort and Story, a full, free and absolute,title, in fee simple, for ever.”

Such an instrument as this would have the effect to vest in Fort and Story an absolute title in tne property, if it were not positively controlled by the law of Louisiana. We must administer the law as it is; and having established that the original transaction was an antichresis, and continued so up to the 2d ot June, it was not in the power of the parties to give to it such a character, as to vest Dy the act of Livingston an absolute title in Fort and Story. “ In the language of the Code, 1808, tit. Pledge, art. 28, already cited, the creditor does not become proprietor of the pledged immovables, by failure of payment at the statéd time, any clause to the .contrary is ¿null:” “and in this case it is only lawful for him to sue his debtor, before the court, in order to obtain a sentence against him, and to cause the objects which have been put laTottte bands, in pledge, to be seized *392and sold.” If such a clause had been inserted in the original agreement, it would have been void. Can it be more valid, because subsequently introduced in a paper having a direct relation to the first contract; and which was intended to alter its character into something which the law prohibits, when it determines the original contract to be one of pledge? We think not. Such an allowance to a creditor would be a precedent, giving to all creditors in cases of pledges the power to defeat the benevolent vigilance of. the law, preventing them from becoming proprietors of the debtor’s property, unless by a decree of the court. We think it immaterial whether such covenant be in the'original agreement, or in a subsequent instrument. In either case the law is express; the creditor does not become the proprietor by the failure of the debtor to pay; any clause io the contrary is null.

It would be difficult to find a case-more clctrly illustrating the wisdom of this rule, than that under our consideration. Story and Fort advanced to Livingston twenty-two thousand nine hundred and thirty-six dollars, and took possession of the lot; looking to Livingston, in the first instance, for reimbursement, and, on his failure to pay, to a sale of the lot. Livingston being unable to pay at the time fixed, applied for an extension of time; it is granted, but only upon condition of an addition of twenty-five hundred dollars to his debt, for a delay of four months: thus creating a debt of twenty-seven thousand five hundred dollars, in ten months, upon an advance of twenty-two thousand seven hundred and seventy-one dollars, forty cents. This increase, the exhibit attached to the defendant’s answer proves was not on account of expenditures upon,' or in the care, of the property; for that account shows the disbursements of the defendant, in the care of the property, up to the 5lh of August, 1823, did not amount to four hundred dollars. When the 2d of June came, Livingston was still unable to pay, and asked for a further extension of time; it was granted; but by another-addition to the debt, or to the amount for which the property was already encumbered; and only upon condition that upon a third failure, the property was to vest absolute in Fort and Sto.ry. 1 This final -result is what the law of Louisiana intended to prevent in cases of pledge; and we know not a case to which it can be more fairly applied.

In the enforcement of the law, in this case, we are pleased to find authorities for doing so in the courts of Louisiana. We refer to the cases of Williams et al. v. Schooner St. Stephens, 1 Mart. Rep. N. S. *393417; to the case of Syndics of Bermudez v. Hanez & Milne, 3 Mart. Rep. 17, and 168.

In regard to the plea of prescription urged in the defendant’s answer, we think it inapplicable to a case of pledge; and if it be so, then that plea cannot prevail in this case, because the time had not elapsed, which the law of Louisiana gives to a person to sue for immovable property.

It now only remains for us to dispose of the defendant’s protest, in the beginning of his answer, against the jurisdiction of the Court in this case. The 23d rule of this Court, for the regulation of equity practice in the circuit courts, has been relied on to show that it is competent for the defendant, instead of filing a formal demurrer, or plea, to insist on any special matter in his answer; and have the same benefit thereof as if he had pleaded the same matter, or had demurred to the bill. This rule is understood by us to apply to matters applicable to the merits, and not to mere pleas to the jurisdiction, and especially to those founded on any personal disability, or personal character of the party suing, or to any pleas merely, in abatement. In this respect, it is merely affirmative of the general rule of the court of chancery; in which'matters in abatement and to the jurisdiction, being preliminary in their nature, must be taken advantage of by plea; and cannot be taken advantage of in a general answer, which necessarily admits the right and capacity of the party to sue. 1 Sumner’s Rep. 506, Wood v. Mann.

In this case, the judgment of the court below is reversed,, and a decree will be entered accordingly.

dissenting.

When this case was before the Court at a former term, 1 dissented, from the judgment then rendered, being of opinion that the case ought to be decided by the law of Louisiana, not the code of equity adopted from the English system into the jurisprudence of the United States, as the Court then decided.

As the civil law was admitted to have been in force in that province, before its cession to the United States, and remained, after-wards the basis of the jurisprudence of the state, with only such modifications as were made by their local laws; I felt it to be the duty of this Court to administer it as it does the law of other states, “precisely as the state courts should do.” 2 Pet. 656; 5 Pet. 400. It is admitted that in the code of the civil law, there is no discrimina*394tion between the law and .equity jurisdiction of its courts, either in the principles, or mode of proceeding; the process and rules of judgment are the same, without regard to the nature of the right asserted, or the remedy sought. This contradistinction exists only in the jurisprudence of England, and the states which have adopted it; nor can it exist elsewhere, unless the common law prevails. The jurisdiction of courts of equity, separately from those of common law, is a necessary part of the common law; though the forms of proceeding are borrowed from the civil iaw, yet the principles and rules of decision are those of the law of England, by which the judge is as much bound as in a court of law. By the adoption of its forms, an English court of chancery no more adopts the civil lawj as a code or system of jurisprudence, superseding the common law, than it does the decrees of the emperor in place of acts of parliament. Both systems remain as distinct, as if the modes of proceeding differed as much as the two systems; and though .the civil law forms are- better adapted to equity proceedings than those of the common law, there is another incompatibility between the two systems. The separation' of cases in law from those in equity, is a necessary incident of the common law; one part of the system cann'ot be engrafted on the civil law without the other: of consequence the introduction of the equity part of the common law into a state which has adopted the civil law, necessarily displaces.-it; and. introduces a system of jurisprudence wholly at variance therewith.

This conclusion is the result of the opinion and reasoning of the Court, which is applied to all civil causes in the courts of the United States, in that state: 9 Pet. 656, 7: for if the English system of equity is in force, because there is no court of equity; the whole common law is also in force, because there is no court of law, contradistinguished from equity; on this ground alone, my objections to the former decision were insuperable. By the third article of the Louisiana treaty, the inhabitants are guarantied “ in the free enjoyment of üioir liberty, property, and the religion which they profess.” 1 Laws U. S. 36. “That the perfect inviolability and security of property is among these rights, all will assert and maintain. 9 Pet. 133. “An article to secure this object, so deservedly held sacred in the view of policy, as well as of justice and humanity, is always required, and is never refused.” 12 Wheat. 535; 6 Pet. 712; 8 Pet. 86, 8. “ According to the established principles of the laws of nations, the laws of a conquered or ceded country, remain in force *395till altered by the new sovereign.” 9 Pet. 747. This principle was recognised by congress-by the 11th section of the act of 1804, organizing the government of Louisiana; the 4th section of the act of 2d March; and the 9th section of tlie act of 3d March, 1805. “ The laws in force in the said.territory, at the commencement of this act, and not inconsistent with the provisions thereof, shall continue in force until altered, modified, or repealed by the legislature.” 2 Story, 937, 964, 973. Congress extended none of the provisions of the judiciary or process acts to Louisiana; and instead of reserving to themselves the power of altering the local laws hy those acts, expressly declared that power to be in the local legislature. These were solemn pledges, which the legislative power of the United States had never attempted to violate; or in my opinion could violate, witnout disregarding the faith of the treaty: to my mind a guaranty of property is inconsistent with the abrogation of the laws under which property is acquired, held and regulated, and the consequent 'substitution of a code, to which the people were utter stranger?. Satisfied that if there could be a power to change the laws of a ceded country, it was in the legislative, and not the -judicial department of the government; I considered these provisions of the acts of congress to be as imperative on this Court, as any other laws were, or could be.

A reference to the terms of the-process act of 1792, will show that it could not apply to a state in which the civil law prevailed; for it directs the modes of proceeding “ in suits at common law,” and “in those of equity, and maritime, and admiralty jurisdiction, according to the rules” &c. which belong to courts of equity, and to courts of admiralty, as contradistinguished from courts of common law; 1 Story, 258. These terms necessarily exclude its application to a system, in which there was no such contradistinction; but in the act Of 1824, the. term is peculiarly appropriate to the law of Louisiana. “That the mode of proceeding in all civil causes, &c.” 3 Story, 1971. The reason was obvious; there was but one mode of suing, whatever may be the cause of action. Congress thus declared, that the laws of the state regulating the practice of their courts, shall be the rule in the courts of the United States therein; so it had been for twenty years, and the state practice was confirmed, subject to such rules as the district judge might make. So it was construed and declared by this Court in 1830. “ If no such rule had been adopted, tíre act of congress made the practice of the state the rule for the *396Court of the United States. Unless then, such a special rule existed, the Court was bound to follow the general enactment of congress on the subject, and pursue the state practice.” 3 Pet. 445. Parsons v. Bedford, 3 Pet. 424, S. P; Parsons v. Armor et al. In Duncan v. The United States, the Court, after reciting the act of 1824, are still more explicit. “ This section was a virtual repeal within the state of Louisiana, of all previous acts of congress which regulated the practice of the courts of the United States, and which come within its province. It adopted the practice of the state courts of Louisiana, subject, to such alterations a? the district judge might deem necessary to conform to the organization of the district court, arid avoid any discrepancy with the laws of the Union.” 7 Pet. 450. “ As the act of 1824 adopted the practice of the state courts; before this Court could sanction a disregard of such practice :t must appear that by an exercise of the power of the district court, or by some other means, the practice had been altered. On a question of practice under the circumstances of the case, it would seem that the decision of the district court as above made, should-be conclusive. How can the practice of the Court be better known or established, than by its own solemn adjudication on the subject?” Ib. 451, 2.

The act of 1828, is still more conclusive, when taken in connection with the decision of this Court on the process act of 1792.

“ In order to understand the bearing which the instruction moved for, has upon the cause, it is necessary to remark, that the state of Ohio was not admitted into the Union till 1802; so that the process, act, of 1792, which is expressly confined in its operation to the day of' its passage, in adopting the practice of the state courts into the courts of the United States, could have no operation in that state. But the district court of the United States, established in the state in 1803, was vested with all the powers and jurisdiction of the district court of Kentucky, which exercised full circuit court jurisdiction, with power to create a practice for its own government.” 1 Pet. 612.

This decision was made in 1828; and the same view was taken five years afterwards, in Duncan v. The United States. “ Nor did the act (of 1792) apply to those states which were subsequently admitted into the Union. . But this defect was removed by the act of the 19th of May, 1828, which placed all the courts of the United States on a footing in this respect, except such as are held fin the state of Louisiana.” 7 Pet. 451.

This act uses the same terms as the process act of 1792, in referring *397to cases in law, equity, and admiralty; and so would not be applicable to Louisiana. Congress, however, did not leave this matter open to any doubt; the fourth section is peremptory: “ That nothing in this act contained, shall be construed to extend to any court of the United States, which is now established, or which may hereafter be established in the state of Louisiana.” 8 Laws U. S. 63.

There is no phrase so potent as this, “ nothing in this act shall. be so construedit has not only the effect of an exception, a limitation or proviso; it is a positive and absolute prohibition against any construction by the judicial power, by which the thing prohibited shall be sanctioned. The effect of these words in the 11th amendment of the constitution, has been adjudged by this Court to annul all jurisdiction over cases, actually pending therein, past, present and future; though the constitution had expressly given jurisdiction in the very case. 3 Dall. 382, 3; 6 Wh. 405, 9.

“A denial of jurisdiction forbids all inquiry into the nature of the case.” 9 Wh. 847. “ The constitution must be construed, as it would have beqn had the jurisdiction of the Court never been extended to it.” 9 Wh. 858, S. P; 9 Wh. 206, 7, 16; 12 Wh. 438, 9.

No construction, therefore, can be put on the act of 1828 which will make it applicable to the practice of Louisiana; how, then, this Court could apply the act of 1792, in direct opposition to the subsequent acts of 1804, 1805, 1824 and 1828, was, and is, to me, a matter of most especial surprise. The provisions of the acts of 1792 and 1828, so far as they refer to the rules &c., of courts of law and of equity jurisdiction, as contradistinguished from each other, are identical; it was, therefore, perfectly nugatory to exclude Louisiana from the operation of the act of 1828, and leave the’act of 1792 in force within that state. It was worse than idle; it was a solemn mockery, a legislative farce, a trifling with the people of that state, after a uniform course of legislation, for twenty-four years; on a-subject upon which all people are peculiarly sensitive; their local laws, usages and customs.

Accustomed to the civil law, the first settlers of Louisiana, their descendants and emigrants thereto, cling to it, as we of the old states do, and our ancestors did cling to the common law, as a cherished inheritance. Had congress declared in 1804, what this Court did in 1835; or had there been a fifth section to the act of 1828, enaeiing, that the process act of 1792, was in force in Louisiana, it may well be imagined, what would have been the state of public *398opinión. No such imputation rests on the legislative department as would be fastened on its faith, if in either their first or last act, in professing to maintain and protect the people in their property, according to the plighted, faith of the treaty of cession, had been to deprive them of their laws, and force, a foreign system upon them. Nor for more than forty years after the act of 1792, and thirty years after the acquisition of Louisiana, had there been an intimation- from this Court, that that act applied to the courts of the United States, within it, either as a territory or a state-of the Union; the contrary had been declared and adjudged.

In 1828, it was decided that this act applied only to the states then composing the Union; 1 Pet. 612. The declaration was repeated in 1833; 7 Pet. 451: and to leave no room for even discussion, this Court, at the same time held, that the act of 1824 was a virtual repeal of all previous acts of congress on the subject; 650. When this case came up, in 1835, it had been decided by this Court, that the act of 1792 never was in force in the new states, and that it was repealed as to Louisiana; the act of 1828, which applied to the other new states, was expressly prohibited from being applied to Louisiana; yet the act of 1792 was declared to be in force then.

If I am capable of comprehending this decision, it repeals five acts of congress; directly overrules three previous solemn decisions of the Court; revives an act which had been repealed; extends to Louisiana a law which never applied to any other new state; and overthrows every thing which carries with it legislative or judicial authority. As a precedent, it is of the most alarming tendency; no question, in my opinion, can be settled, if this was an open one in 1835. Congress may legislate, and this Court adjudicate in vain; if the acts of the one, and the judgments of the other, are thus to be contemned. My respect for both, forbids my assent to such a course, or my acquiescence in a principle which must absolve judges from their obligation to follow the established rules of their predecessors; in the construction of laws, and the settled course of the law.

Having entirely dissented from a rule laid down Dy this Court in Green v. The lessee of Neal, 6 Pet. 299; wherein the majority of the Court put and answer the question, “Would not a change in the construction of a law of the United States byAhis tribunal, be obligatory on the state courts? The statute, as last expounded, would be the law of the Union; and wny may not the same effect be given to the last exposition of a local law, by the state court?”

*399That the principle of “legis posteriores priores contrarias abrogan t,” is sound, when applied to legislative acts, all admit; but it is an innovation upon all rules, to apply it as a general rule to the exposition of statutes, which have received a settled construction by a court of the last resort. It is' an assumption of legislative power, and a reversal of the established principle, that judges cannot amend or alter the law, but must declare what it is; and from the very nature of such a rule as is laid down in Greenv. Neal, the law can never be settled, so as to be binding on the judges-of this Court; as is most clearly illustrated in this case.

In 1835, there had been three solemn decisions, either of which was conclusive; that the act of 1792 was not in force in Louisiana; and there had been an uninterrupted course of practice in the district court of the United States, sanctioned by acts of congress and this Court, for more than thirty years. One judge only dissented in the case of Parsons v. Bedford; but it was because, in his opinion, the Court did not adhere, with sufficient strictness, to the state practice; 3 Pet. 452. In the cases in 1 Pet. 612, and 7 Pet. 450, the Court appear to have been unanimous; all the judges had then concurred in opinion on the very point which arose at the former argument; and the act of 1828, was a direct legislative sanction of the judgment of the Court in the former case, being adopted to cure the defect of the nonapplication of the act of 1792, to the new states. There were but five judges present, who took part in the former decision, two of whom dissented; so that the case was determined by only three judges. I do not mean to assert, that the effect of a judgment depends on the mere number of judges who concur in it; but I do assert, most distinctly, that such a decision does not settle the law, in opposition to three previous solemn and unanimous adjudications. If the question thus decided, remained open; there is, to my mind, neither reason, precedent, nor principle, to sanction the doctrine that any judge is bo,und by the last decision, when he is not bound by former ones. When three last decisions can be overruled, it is strange that one cannot be. The decision of 1833 was. the last, before another was made. The act of 1792 was then declared to have been repealed, and never to have been in force in Louisiana; yet no respect was paid to it, or the one in 1830 or 1828; neither of them were thought deserving of even a passing notice, or the most remote reference to them. The act of 1828 was treated in the same manner, as alike unworthy of attention.

*400Had any other department or officer of the government, any circuit or district court of the United States, or any state court; thus drawn a sponge over these acts of congress, and our repeated decisions upon them; it would have been justly deemed a disregard of the constituted authorities.

I freely admit that a court may and ought to revise its opinions; when, on solemn and deliberate consideration, they are convinced of their error. It is often done, though never without the fullest investigation; even then, one decision does not settle the law; when they are contradictory, the matter is open for future research. There is no moré certainty that a last opinion is more correct than the first. Generally speaking, a construction of a law nearest the time of its passage, is most respected; and is adhered to, though there may be doubts about, it, on the principle of “stare decisis.” But it is believed to be unprecedented, to consider a subsequent decision that omits any reference to prior ones, and from some cause overlooks them, though they are in point, and by a court of the last resort; as having settled the law. If, however, such is the rule, it necessarily follows, that it can only remain until another last decision shall be made, restoring the old law, or making a new version of it.

A judge who, in 1835, was at liberty .to make a last construction of a law, is certainly as free in 1837, as he was two years beforé. The very principle of this ease is, that prior decisions, though unanimous, are not binding; the next, in point of time, by a divided court, can then be of no more authority; and a fortiori, one such opinion cannot outweigh’ three contrary ones, unless every last decision has the same effect, whenever a present majority may think fit to make one. To such a principle I can never yield assent, unless in the last judgment of this Court, all prior ones have been fully considered; the more especially on such a subject as is involved in this case,' in which we were called on to repudiate the laws of a state of this Union, and substitute therefor, by judicial power, a system, equally repugnant to the habits, the customs, and the choice of the people. In introducing into Louisiana that part of the common law which constitutes the’ law and practice of courts of equity, the other part of the same system being concomitant,'cannot be excluded; if it is to be done, or cart be done/it is only by the legislative power.

These were my reásons for dissenting from the judgment heretofore rendered in this cause; they still operate on my mind, in their full force; they are, inde.ed, strengthened by the judgment now.*401given; which seems to me as repugnant to the former, as that was to' all former ones, and the existing laws.

The controversy between these parties is respecting real property of great value; the plaintiff claims it, subject to the payment of a certain sum of money; the defendant claims it as his own absolutely, by purchase from the plaintiff, pursuant to several contracts made according to the forms of the law of Louisiana. The suit was corny menced by a bill in equity, according to the form of process adapted to such courts; and contrary to the practice of the district court,’from the first organization of a territorial government in Louisiana, in 1804, till the filing of the bill in 1834; vide Record, 2 to 6, 8 to 12. A demurrer was put in, assigning two causes. 1. That plaintiff had not set out such a case as entitled him to any discovery or relief in any court of equity in the state. 2. That by the bill it appeared that the transaction complained of, was between the plaintiff on one side, and the defendant and one Fort on the other, whose heirs were, not made parties, Record, p. 7; 9 Peters, 6, 36: that this was necessary by the law and practice of Louisiana, was admitted. It .was not a-matter of mere form or practice, that the heirs of Fort should be made parties; the transaction was a joint one. Story had purchased from Fort, and paid him a large sum of money for his interest in the property: To Story therefore, it was highly important, that when the original transaction vías to be unravelled, he should not alone be held answerable to the plaintiff, and be compelled to reconvey, without his partner being compelled tp contribute. By the law of the state, he had a right to this protection; it was equitable too, that the plaintiff should be compelled to call into court all the parties who had been concerned: to- the defendant it was but justice that he should not be put to his remedy against his associate, and the consequences be visited on him alone. This right to have the heirs of Fort brought in, was absolute, had the plaintiff sued in the mode prescribed by the law and practice of the-state; it was a substantial benefit to Story, of which he could have been deprived in no other-way, than on abrogation of the established-course of proceeding, then in force in the state. This was done by the Court in overruling the demurrer on both points: they declared that the process act of 1792 applied to the case; and as the defendant, at the time of filing the bill, was the only person claiming or possessing the property, none other need be made a party, 9 Pet. 658, 9. By the terms of this act, “the forms and modes of proceeding in suits in equity, &c., which *402are to be pursued in the federal courts, is not confined to the mere process employed;” it is to be “according to the principles, rules, and usages, which belong to courts in equity,” &c. 1 Story, 258. When it is recollected, that there is no statute in England which defines the jurisdiction of these courts, or prescribes their course, the whole law or code of equity jurisprudence is necessarily made up of its own “principles, rules, and usages,” which make it á system, as contradistinguished from that which prevails in courts-of law. When too, we look to its adoption by the judiciary and process acts, it is at once apparent, that its' effects go far beyond forms and practice; if it is in force in Louisiana, it does not stop' at substituting an English bill, for a civil law petition; the whole law of equity, as a distinct code,- necessarily accompanies it, by the very words of the act of 1792. So it must have been understood by the court, or they would have directed the heirs of Fort to be made a party to “a bill of equity;” as they must have done, had the proceeding .been by petition-. On this point their language is most explicit in using the very words of the act of 1792. “ And that in the modes of proceeding, that court was required to proceed according to the principles, rules, and .usages, which belong to courts of equity, as contra-distinguished from courts of law,” 9 Pet. 655. So again; “as the courts of the Union have a chancery jurisdiction in every state, and the judiciary act confers the same chancery powers on all, and gives the same rules of decision, its jurisdiction in Massachusetts,” (and of course in Louisiana,) “must be the same as in other states.” 656. And if no such laws and rules applicable to the case exist in Louisiana, then such equity .powers must be exercised according to the principles, usages, and rules of the circuit courts of the United States, as regulated and prescribed for the circuit courts in the other states of the Union, 660. There can, therefore, be no mistake in considering, that the whole system of English equity jurisprudence henceforth is the law of Louisiana, both in form and substance, vide, 659; if the judgment first rendered in this case is the settled law of the land.

In its present aspect then, the suit must be taken as a bill in equity, to be decided on, and by the same principles, rules, and usages, which would form.the law of equity in a circuit court of any other state.

In so viewing this' case, there seem to me insuperable objections to the relief prayed for in the bill; even on the plaintiff’s own showing, and the documents referred to.

*403The first contract between the parties was, in form, an absolute sale, in July 1822, for the consideration of twenty-five thousand dollars; of even date there was a defeasance or counter-letter, stipulating for a reconveyance, on payment of that sum in February 1823, and in case of nonpayment the property to be sold. In March 1823, an agreement ivas made, extending the time till June, stipulating the terms. The sale was postponed at plaintiff’s request, and a new agreement made, whereby he was to pay Fort and Story twenty-seven thousand eight hundred and thirty dollars, on the 5th of August, otherwise the property was to be absoluto in them, and the defeasance to-be cancelled, so as to bar any equity of redemption; the declared intention being, “to vest in Fort and Story a full title, in fee simple, forever.” The plaintiff not paying the money, the defeasance was cancelled; and Fort and Story remained in the. possession and enjoyment of the property In his bill the plaintiff alleges, that the original transaction was a loan of money, for the security of which the contracts were executed; and rests his whole casé.upon that allegations he avers no fraud or unfairness on the part of Story or Fort, no ignorance of his rights, of any fact or matter in any way material to him, when, the subsequent agreements were made. His only equity is in averring, that the property was worth more than the sum he had recéived, his inability to repay it, owing to the -great pressure for money in 1822 and 3, the nonapplication of seven thousand dollars, which sum was to have been expended in improvements on the property; and that it was worth one hundred and twenty thousand dollars at the time of suit brought, in 1834. In such a case, a court of equity would look for the equity of the case in the acts of the plaintiff in March, June, and August, 1823; and if not satisfied that the release of all right of redemption, and the agreement that the right of Fort and Story should become absolute in fee simple, was made in ignorance by the plaintiff, or by fraud, or imposition-by the defendant, the plaintiff could have no standing in court. Admitting the first contract to have been a mortgage, the parties voluntarily changed its nature on the application of the plaintiff; his object was to avoid a sale, and to gain time till the pressure subsided; but finding it continuing, he preferred making the transaction an absolute sale, rather than expose the property to a public sale during the pressure.

If better terms could have been obtained than were offered by Fort and Store; or if the averment in the bill that it was worth *40460,000 dollars, in 1823, was true, it is incredible that the plaintiff should have been so desirous of keeping it out of the market; or that he would have entered into the agreement of June, if he .could have obtained a better price from others. Be this, however, as it may,, the mere inadequacy of price is of no consequence in equity; courts wilt‘never set aside á contract on this ground, if it is free from all other objections: the agreements of March and June were solemn, deliberate, and executed according to the solemnities of the civil law; and were binding by all the rules and principles-of the English system of equity. By that law, Mr. Livingston was not a minor,, deemed incapable of managing his own affairs; neither is ignorance of the law or facts of his own case, imputable to him; and he shows in his bill no reason why he should not be bound by his contracts, or why he should have them annulled.

As a mortgagor in the 'first instance, a court of equity -would protect him against any unfair release of his equity of redemption to the mortgagee; yet, if fairly made, it would'be as valid as if he had conveyed it to a third person. So far from any equity arising to him from the rise in the value of the property from 1823, till 1834; it is, in my opinion, á strong circumstance" in favour of the defendant, who advanced his money during a severe pressure, when he could have purchased this property at auction, at a rate below its estimated value, proportioned to the demand for-money, or have purchased from others. This ground of relief, however, entirely fails, when we consider the answer of the defendant; he denies the whole equity of the bill, as well as every allegation oh which it rests; the answer is responsive to the bill, is full and explicit; and the plaintiff has not disproved one fact or averment contained in it; or proved any one matter averred in his bill. It is distinctly denied, that the original transaction was a loan; that the property was worth more than the sum-to be paid for its reconveyance, or to .prevent a sale; the non-application of the 7000 dollars is accounted for -in a manner which throws on the plaintiff all its -consequences; and shows it to have been by his own acts, and those of the person for whom he was surety to the defendant. These - circumstances alone, would take from him any. standing in a court of equity in England, or any circuit court of a state. Another view of the case is equally conclusive; on an inspection of the bill, answer, and exhibits.

The plaintiff did not rest his case on the documentary evidence; he averred the transaction to have been different from what was ex*405pressed in the written agreement; and called for the aid of a court of equity to Compel the defendant to disclose the real nature and character of the original contract, and the true intention of the parties, on his oath. By this, he made the answer to the bill and interrogatories, evidence; it is directly responsive, full, and positive,and supported by evidence of the most satisfactory kind; the written application of the plaintiff’s agent to Fort and Story, on the 13th July, preceding the first agreement. Vide ante, p. 360. No attempt was made by the plaintiff to prove the averment, that a loan was intended; so that there was nothing in the case which could vary the terms of the writing.' The only original contract, was, then, the conveyance; and the defeasance, or counter-letter, taken in cónnectidn as one agreement, the terms of which show its legal character to be a conditional sale, and not a mortgage; when tested by the rules of equity as recognised by this Court.

To make such a transaction a mortgage, it is indispensable to show that the party receiving the money was bound to repay it; unless it clearly appears, from the evidence, that a loan was intended; and that the form of a sale was adopted as a cover for usury. The principal and interest must be secure; there must be a remedy against the person of the vendor or the borrower, and clear proof that he was liable. 7 Cr. 236, 7; 9 Pet. 445, to 454. If it is not proved by extrinsic evidence that a loan was intended, and the party bound to repay it, it matters not how extravagant the terms of repurchase may be: the redemption must be on the day stipulated; or the estate vests absolutely, if the principal was at hazard. Ib. 455, 459. Inadequacy of price is not a circumstance which will convert a conditional sale into a mortgage. 7 Cr. 241; and if the party makes nc claim to the property while the other is in possession, making valuable improvements on it without any notice of an intention to assert a right of redemption, a court of equity will not aid him. 7 Cr. 240.

In the counter-letter, Mr. Livingston is not bound to repay the money; Fort and Story had no.remedy against him; had the property sold for, or been worth less than the sum advanced, the loss was theirs. Thére is an averment in the bill' that the plaintiff was liable; but it is expressly denied by the answer, and the plaintiff has notwffered a spark of evidence to contradict it; the protest made in August was not to found an action; but was made as authentic evidence of the fact of nonpayment, and to silence the pretensions of the plaintiff, as is expressly sworn to in the answer. Rec. p. 19. It *406is also positive as to the value of the property at the time, and afterwards. “ This deponent was repeatedly offered, after 1823, by John A. Fort, the half of the property at cost and charges; which he refused, considering the property not worth it. It has been only the rise of all property in that part of the city where it is situated, that has saved them from loss.” Rec. 22.

Should it be thought worthy of inquiry, why they should pay for the property more than it was worth in 1822 or 1823, the answer is at hand. By the contract, eight thousand dollars of the money was to be expended in improvements, which would have been so much added to the value of the property; the plaintiff was security that this sum should be so applied by Rust: trusting to this guaranty, vide Record, 29, Fort and Story advanced the eight thousand dollars to Rust; who misapplied it in the manner stated in the answer to the interrogatories of the bill, Record, 22. In the answer it' is also stated, that plaintiff represented that a quantity of joists and iron work had been found for the buildings then erecting; but, on inquiry, defendant found they had not been paid for, and he and Fort had been compelled to purchase them at a cost of one thousand three hundred and seventy dollars. This sum, added to the seven thousand dollars misapplied by Rust, was a diminution of the value of the property more than eight thousand dollars below what it would have been, if the plaintiff had fulfilled his guaranty, and made good his representation; and the work done would be worthless unless the buildings had been made tenantable. Fort and Story had no option but to submit to this loss, inasmuch as they had confided in the plaintiff, that he would do what he had engaged to do, without holding him personally bound to repay them the twenty-five thousand dollars; eight thousand three hundred dollars of which was lost to them in the manner stated. To save themselves, they were thus compelled to advance this sum, to put the buildings in the state they were stipulated for, when they made the agreement. Under such circumstances, no court of equity could have considered the transaction a mortgage; or the plaintiff as entitled to any relief.

On another ground, the plaintiff’s case was divested of all semblance of equity. He had laid by eleven years, after he. had voluntarily cancelled the counter-letter,- and surrendered the property by an absolute title in fee simple; during which time he had given no notice of any claim on his part, or any intention to assert a right of redemption; while Fort and Story, to his knowledge, were making costly *407improvements, under the full belief that they owned it; as the plaintiff had solemnly engaged that they should own and hold it. He waited till all risk was out of the question, when the speculation was a certain great one; and, in his own good time, comes into a court of equity, demanding a reconveyance, and offers to allow to Story five per cent, per annum for the use of his money:- but refusing even to make the heirs of Fort a party; though the plaintiff knew, and stated in his bill, that Story, relying on his contract, -had purchased out his interest at a large advance.

For this delay the bill assigns no reason or excuse, nor can any be 'found in the whole record; none has been offered in argument, none can exist to which any court of equity would listen, while it respected the principles laid down by this Court, at the same term in which this cause was first before it.

“ A court cf equity, which is never active in relief -against conscience, or public convenience, has always refused its aid to stale demands, Where the party slept upon his rights, or acquiesced for a great length of time. . Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence. When these are wanting, the Court is passive, and does nothing; laches and neglect are always discountenanced; and, therefore, from the beginning of this jurisdiction, there was always a limitation of suits in this Court. The same doctrine has been repeatedly recognised in the British courts, as will abundantly appéar from the cases already cited. It has also repeatedly received the sanction of the American courts, &c. And it has been acted upon in the fullest- manner by this Court, especially in,” &c. Piatt v. Vattier, 9 Pet. 416, 17.

With submission, then, it must be asked, why this principle should not be applied to this case? There can be none which calls more loudly for it; it is a fundamental rule by'which all courts of equity act: it is an essential part of that system of equity, which, in this very case, this Court, two. years ago, held to be in force in Louisiana; as well in the principles and rules of decision, as in matters'" of practice, furnishing the law of the.case, in place of the local law which/ was then suppressed. In Louisiana, ten years is a positive bar by limitation, when the law is .applied; the principle of analogy, therefore, would apply to ,a shorter period than in other states, where the time of limitation is twenty years. In such a. case, and circumstanced as this case is, the lapse of eleven years, wholly unaccounted for; would be as fatal to the plaintiff’s claim in any court of equity, *408in England; in any of the states, or in this Court; as if it.had continued for -any period, however long. The same question may be put as to the rules and principles on which equity acts, or would act, in annulling contracts like those of March, June, and August, 1823; also as to the established rules in deciding on what is a conditional sale, or a mortgage, as likewise declared at the same, time; 9 Pet. 445, &c.

One answer has been given to all questions which can be put, if this case is to be decided by the English system of equity jurisprudence, as adopted by the process act of 1792, and declared to be a part of the law of Louisiana in 1835. It is now most solemnly-adjudged, that this case is not to be determined by “ the principles, rules, and usages, of courts of equity, as contradistinguished from courts of law;” that it depends on, and is governed by the Louisiana law of - antechresis or mortgage; by which no length of possession, no amount expended in improvements, no laches of a mortgagor, however incompatible with every principle of common justice, or English equity, can bar a redemption without a sale. Nay, this law by the decree as now made, declares Mr. Livingston to be a minor, under a pupilage so strict, that his contracts, in relation to this property, are mere' paper and packthread; and his pledged faith, that Fort and Story should hold and enjoy,it, idle wind; because no sale was made, on account of his repeated and most urgent efforts to prevent it. He too, the distinguished jurist who revised and compiled .codes for Louisiana, and was deeply versed in all the details of its laws; asks this Court to. give him the benefit' of this law of antichresis, on the only ground on which it can give him a decree for property, without irretrievably cpmpromitting that, which he deemed far more valuable — his character.

Fort and Story did not intend to pay their money on such a contract as an antichresis. Mr. Livingston did hot intend to mislead or deceive them by persuading them to waive a sale, which, under such a contract, was'indispcnsablc to bar his right of redemption; he did not cancel the counter-letter, and pledge himself that, his equity of redemption was forever extinguished, knowing that the law incapacitated hir from doing it. ' Fort and Story never contemplated that their onl_y right to the property, was only a pledge upon it for their money and legal interest; nor could it have entered into their minds, that by indulging Mr. Livingston in avoiding a public sale, they were thereby giving him the sole benefit of their capital,- expended in the *409purchase and improvements, as well as the appreciation in value of the property. That an antichresis was ever in their minds, cannot be pretended; or that he knew that the contract was of that.nature, and intended to avail himself of it, if a change of times should make it his interest to do so, when the property rose to a sufficient value, while he held out to Fort and Story that their ti.tle was perfect; is incredible. He- must have been as ignorant of the law as they were, and both have intended the transaction as a conditional sale; in such a case, a court of equity would so reform the contract, as to make it conform to the real intention of both parties.' . On the other hand, if-they intended the contract to be a conditional sale, and he intended it to be .a mortgage; there is a fatal bar to this case.

It was laid down by this Court, in 1835, that where the contract was in terms a conditional sale, it would not be turned into a mortgage, or the money be deemed a loan; unless the intention to do so was mutual. 9 Pet. 450. That it was not so in this case, is manifest from the conduct of the defendant, and his positive oath in his answer; which decidedly negative any mutuality of intention.

There are, then, the following distinct grounds of defence, on equitable principles, to the plaintiff’s bill. 1. He has failed in adducing any evidence, competent to vary the terms of the original contract. 2. He has shown no ground for annulling the subsequent contracts, or why they are not binding oh him in equity. 3. All the averments in the bill are positively denied by an answer directly responsive, which remains uncontradicted, without an attempt to disprove any part of it, or to support the bill. 4. The plaintiff was never bound to repay the money;' and the defendant incurred the whole risk óf a depression in the value of the property. 5. The defendant never intended to enter into a contract of loan or mortgage. 6. The plaintiff is barred by the lapse of time and acquiescence, without notice.

If then the decree of this Court; at this term, had been .rendered in accordance with those “principles, rules, and usages of a court of equity,” which they adjudged two years before, to be the law of the-case, the decree of the court below must have been affirmed; yet is now reversed, because the local law, which was wholly repudiated then, is applicable now. Herein there seems to me an utter discrepancy, between the two decrees of this Court'. In. 1835, the practice and law of -Louisiana was displaced by the practice and law of equity; by the rules of which the demurrer was overruled, when it must have been sustained,-if the act of 1792 had not been in force in that *410state. In 1837, the forms and modes of proceeding in equity are retained; which deprive the defendant of the benefit of the law of the state, compelling a plaintiff who sues for the redemption of mortgaged property, according to the law of antichresis, to join all the original parties; in consequence whereof the plaintiff retained his standing in court, which he must otherwise have lost. The law of equity having thus performed its appointed office, is, in its turn, displaced by the state law, and ceases to be a rule of decision: the law of antichresis is then brought in, to perform the final office of annulling the contracts of the parties; taking the property from the defendant, and awarding it to the plaintiff. Now, if the law of antichresis .must govern this case, it is by sheer, dry, legal right; as destitute of any equity'as it is contra.y to its most sacred principles, when applied to such a óase as this: by every rule of its action, equity calls'on the plaintiff to show “conscience” in his claim; “good faith” in his conduct; and reasonable'diligence in pursuing his nights, before it move's one step. Let the record answer how these calls have been met. In his bill, the plaintiff holds the defendant to the most strict rules of accounting, as a trustee or agent; he offers to pay legal interest, (which is five per cent.) on the money due in August, 1823; say twenty-eight thousand dollars; which, for eleven years at the time of filing the bill, amounts to fifteen thousand four hundred dollars: so that defendant would be entitled to a credit, in account, of forty-three thousand four hundred dollars, from which must be deducted twenty-nine thousand seven hundred dollars, he had received for rents up to 1829, Record, 50; and at the rate stated, he would be indebted to the plaintiff in 1834. The plaintiff would then regain a property, stated in his bill to be worth one hundred and twenty thousand dollars, and by Mrs. Fort to be two hundred thousand dollars, and by the use of the defendant’s money; while Story is left to seek, his remedy against her for the fifty thousand dollars, paid her in 1832, for her share. In his offer, the plaintiff omits any credit to the defendant, for taxes on the property, or compensation as his bailiff and receiver, for collecting the rents of the buildings erected with his own money; as it now seems for the plaintiff’s use; on an interest oiffve per cent, in New Orleans. This is the conscience of the case. Its good faith can be ascertained by the stipulations, and solemnly declared intentions of the plaintiff, in the contracts of March and June, 1823; Record, p. 278] the cancellation of the counter-letter; and after an utter silence for eleven years, then, for the first-time, asserting the contract to be *411an antichresis; with a perpetual right of redemption, till á sale was made by its authority. Reasonable diligence would seem to consist in the plaintiff’s pleasure; eleven years must be held not to be “a great length of time,” under the circumstances of this case; of the utter silence, and want of notice for this period, must be held not to be an “acquiescence” in the defendant’s right. It has been a truly fortunate result for the plaintiff, that with a case npt sustainable by either the practice or law of Louisiana, or by. the rules and principles of a court of equity, separately; he has been able to attain his object at one term, by one law, and at another term by the other; so happily applied, as to meet the exigencies of his case at both terms. Had the one law been made the rule of decision on the whole case, 1 might have acquiesced in the result: as it is, I am constrained to dissent from the whole course of proceeding; as in my settled judgment, in direct conflict- with the acts .of congress, as well as the repeated and most solemn adjudications, of this Court.

I have not examined into the law of antichresis in Louisiana, for the want of the necessary books; conceding, however, that it is as the Court has considered it, it gives the plaintiff a sheer legal right, for the violation of which a court of equity is not the proper'forum to resort: the right being in. contravention of the fundamental principle of such courts, the remedy must be in a court which decides by the rules and principles of the civil law; to which code alone' such a contract is known.

There-is one other matter, on which I also dissent from the opinion of the Court; which has too important an. effect on the rules of pleading and practice in suits in equity, to be passed unnoticed; and is in my opinion, a dangerous innovation, unsupported by principle or precedent.

From the preceding view of this case it is apparent, that if Mr. Livingston had been á citizen of' Louisiana he could have sued only in the cdurt of .the state; his proceedings must have been according •to its practice and laws, by'which he must have made Mrs. Fort a party. Admitting his right to the property to be what this Court have held- it, it would, have placed the defendant in a very different position from that in which he now stands, without the least injury or inconvenience to the plaintiff. Mrs. Fort would have been compelled to refund the rents she'had received, which, by the decree, the defendant must pay; together with the fifty thousand dollars she .received from him, with, the accruing interest; as well as the loss sustained by-receiving only five per cent, on their capital; and pro*412bably paying to banks eight or ten per cent, as is usual in Orleans. Vide 3 Wheat. 146. By suing in a court of the United States, the plaintiff, by the aid of the process act of 1792, has protected Mrs. Fort, and thrown the whole loss on Mr. Story: leaving him the chances of a suit with her, in place of the certain remedy, that a state court would give him. To him it was no matter of form, practice, or mode of proceeding, whether he was sued in the one or the other court; it may be that his whole indemnity from Mrs. Fort depended on it: to the plaintiff i+ mattered not, so that he obtained the benefit of the law of antichresis, which the state court was bound to administer, as much as the court'below was. The measure of justice to him was the same in both courts. It was by being a citizen of New York, that this court enabled the plaintiff to overrule the demurrer; by the application of the process act of 1792, the law of the case was changed; so that it was a most important fact in its bearing on the merits of the cause, .not one affecting the form or mode of proceeding in the suit. It was averred in the bill, that the plaintiff was a citizen of New York:- the defendant, in his answer, says, “that he does not admit, but if it be the fact, requires proof that the complainant is a citizen of the state.of New York; that at the time of the transaction mentioned in the bill, and for a long time thereafter', he was a citizen of the state of .Louisiana, and one of her senators in the congress of the United States; and if he has ceased to be a citizen of that state,' the defendant knows not when, or how, and calls for proof.” Rec. 16. To this part of the answer an exception was made, because the objection came too late after a demurrer had been overruled. Rec. 33. The exception was overruled, 36, and the general replication was filed. On the hearing, one deposition was read on the part of the plaintiff, to prove the fact; but in my opinion it failed to do so. This, however, was not deemed material by- the court; who held, that ;the averment of citizenship could be controverted in no other way than by a plea in abatement: and that not having'done so, the defendant was too late in reserving the denial till he answered; applying to the. case the same rule which prevails as to pleas to the jurisdiction of a court of equity.

Had this been a suit by petition, according to the practice of the state, a denial of the citizenship or alienage could have been made in the answer, after a plea in bar, and the cause ordered for trial; it was so-decided by this Court in 1833, declaring, that “the courts of Louisiana do not proceed by the rules of the common law;” “their *413code is founded on the civil law, and our inquiries must be confined to its rules.” 7 Pet. 429. This plea was offered after issue joined on a plea in bar, and after the argument had commenced. The court might admit it, and the court might also reject it. It was in the discretion of this Court to allow or reject this additional plea, Ib. 432. In 1 Pet. 612, it was decided, that a district .court in a new state had “power to create a practice for its own government.” The practice of the state courts adopted by the district judge of Louisiana, has been always recognised by this court, and acted on. 6 Pet. 198; 7 Pet. 429, 30; 8 Pet. 303. In Brown v. Keene, this very objection was taken in the answer, and considered by the Court; 8 Pet. 112, 115.

Such being the established practice of the court below, sanctioned by this Court, and the act of 1824; the plaintiff would have been bound to prove this averment, aqd considered himself so bound by the attempt to do it; but this Court has relieved him by expunging the state practice, and substituting what they assume to be-the equity practice of courts of 'chancery in England. The consequence of which is, that the defendant is not allowed to deny by his answer, a fact averred in the bill, unless by a piea in abatement, in -which he takes on himself the burthen of disproving it: of course, if he fails in doing so, the averment must be taken to be true, without añy proof offered by the plaintiff to sustain it. That this decision of the. Court is as repugnant to its own principles often declared, and to the rules of pleading in equity cases, as" it is to the recognised practice of the court below; is clear to my;mind.

By the 18th rule prescribed by this Court, “for the practice of the courts of equity of the United States;” “ the defendant may at any time before the bill is taken for confessed, or . afterwards with the leave of the Court; demur or plead to the whole bill, or part of it; and.he may demur to part, plead to part, and answer to the residue,” &c. 7 Wheat, ix.

By the 23d rule, “the defendant, instead of filing a formal demurrer or plea, may insist on any special matter in his answer; and have the same benefit' thereof, as if he had pleaded the same matter or had demurred to the bill;” Ib. x.

When this case was before this Court two years ago, this was their language. “It is an established and universal rule of pleading in chancery; that a defendant may meet a complainant’s bill by several modes of defence: He may demur, answer and plead, to different parts of a bill,” 9 Pet. 658. Such were the rules of equity then.

*414There must have been a great change in equity practice since, if a defendant may not now deny in his answer any averment in the bill; or call for proof of any fact averred, as to which he has not sufcient knowledge, to be safe in admitting or denying it.

When he answered this bill, there was no rule of this or any court of equity, by which the averment of citizenship was exempted from the special rules of this Court, or ‘‘the established and universal rule of pleading in chancery:” it was not z privileged allegation, but like all others material to the plaintiff’s standing in Court, he was bound to prove it when called on by an answer, which did not admit, or put it in issue by a denial. It is hard, indeed, on the defendant, that he suffers under the adoption of a rule unknown to the law or practice of equity; when he put in his answer, his counsel looked to the existing rules, after he found that the rules of the state practice had been superseded; and must háve felt safe in following those which had been laid down as universal, in that opinion which fastened the equity code of England on the state and people of Louisiana. They had a right to confide in its future administration, according to the rules and principles promulgated by that tribunal; which by its own power imposed it on them. It has been held by this Court for more than forty years, that an express averment of citizenship is necessary to enable a citizen of one state to sue in the federal court of another; .that it is a special privilege, conferred by the constitution and the judiciary act, to which the plaintiff must show his right by the record; that the averment must be positive, and not in the alternative, 8 Wheat. 112; that it must be in the body of the bill, and does not suffice that it is in the title or caption; that it is not only a fatal. defect after a final decree; but is deemed so important that the judges feel bound to notice it, though counsel do not, 8 Pet. 148.

When the whole action of a court of equity on a bill, which does not, in its body, contain .this averment in positive terms, is thus a mere nullity, and a final decree does not Cure the defect: it is a most strange conclusion, that it cannot be denied.by the answer, or the plaintiff be put to its proof; that as one of the allegata of the bill it is indispensable, while as one of the probata, it is immaterial. As the defect goes to the jurisdiction of the Cqurt, it would seem consonant to reason, as well as to law, that if the- averment of the fact was material, its truth was equally so; yet if the doctrine of the Court is sound, the defendant cannot put the plaintiff on proof of it, or make it a matter in issue on which he can adduce negative evidence. By *415putting the defendant to his plea in abatement, the Court seem to me to have overlooked its requisites. Such a plea must be on oath; and it must give the plaintiff a better writ or bill, by pointing out how he ought to sue: such are its requisites in a suit of law or equity. 1 Day’s Com. Dig. 151; 1 P. Wms. 477; Beame, 92, 3; 1 Ves. Sr. 203, 4.

The requisites of all pleas in equity are also overlooked. A plea must set up matter not in the bill; some new fact as a reason why the bill should be delayed, dismissed, or not. answered; or the plea will be overruled; Mit. 177, 9; Beame, 2, 7; 2 Madd. R. 346, Am. ed.

The nature and effect of a plea to the jurisdiction of a court of equity, are also wholly misapprehended. It does .not deny the plaintiff’s right to relief; or that the bill does not contain matter proper for the cognisance of a court of equity; but it is made on the ground, that the court of chancery is not the proper one to decide it: it admits the jurisdiction of equity, but asserts that some other court can afford the remedy; Mit. 180; Beame, 57. This‘must be done by matter set up in the plea; because the court of chancery, being one of general jurisdiction in equity, an exception must be made'out by the party who claiips an exemption, in order to arrest its jurisdiction. Mit. 186; Beame, 57, 91; 1 Vern. 59; 2 Vern. 483; 1 Ves. Sr. 264. This objection must be by plea, and cannot be taken by demurrer: it must show what court has cognizance of the case: that it is a court of equity, and can give the plaintiff a remedy: if no circumstance can give jurisdiction to the court of chancery, then no plea is necessary; a demurrer is good; Mit. 123, 4; Beame, 100, 1; 1 Atk. 544; 1 Saund. 74; 1 Dick. 129; 3 Br. Ch. 301; 2 Ves. Sr. 357.

From this view of a plea to the jurisdiction of the court of chancery in England, it must be manifest that there is and can be no analogy between its jurisdiction and that of a circuit or district court, sitting as such: the former being general, attaches to every' case not brought within an exception, by matter specially pleaded, showing that the case is cognizable in some inferior court of equity, competent to give the relief-prayed: the latter is special, and limited to the cases specially enumerated, within which the plaintiff must bring himself, by averment and proof of the necessary fact. A denial of this fact does not oust an existing general jurisdiction; it puts in issue the only fact which can give the Court cognizance of the case: no fact or matter not in the bill, is set up by way of avoidance or delay, or as a reason for not answering; nothing is’put in issue. *416but the truth of the allegation, in which the plaintiff claims a right and privilege;denied to the citizens of Louisiana.- He has claimed, and the Court have granted him a much higher privilege, than that of merely suing in a federal court-; he.is exempted -from the Obligation of. suing, according to the law and practice of the state; the benefit.of- the-equity code of England .is given to. him, and the defendant deprived of the right secured to him by the law of. the state, that of having the heirs of his former partner made a party. The plaintiff’s privilege is. the defendant’s oppression; the plaintiff is a favoured suitor; not because he is a citizen of New York in truth or in fact, but merely because he says in his bill that he is; and the defendant must .submit to all the consequences of the averment being true, unless he will also consent to undergo the perils'and inflictions of a plea in abatement. We have seen what its requisites are: now let them be applied to this case, and the consequences of such a plea. It must be on oath, the.fáct is not within his knowledge; he swears to a negative of" a fact asserted in the bill, whereby he is compelled to incur the risk of perjury. As pleas in abatement in the court of chancery are governed by the same rules as. in a court of law, 1 Ves. Sen. 203; Beame, 89, 90; there is another rule worthy of notice: “If the plaintiff take issue on a plea in abatement, and it be found against th¿ defendant, then final judgment is given against him.” 2 Saund. 111, a, note 3, and cases cited. He must therefore incur the danger of a final decree against him, if he does not make out his negative issue. His plea must be. overruled, because it sets up no matter not in the bill. He must give the plaintiff a better-writ or bill, by showing that some other court of equity has cognizance of the case: this is impossible in Louisiana, in which there is no such court: his.plea is then bad, because he cannot comply.with the requisites, unless it is incumbent on him to do it, in the only possible way left' him; He can set up new matter, by averring that the plaintiff is a citizen'of some other state than New York or Louisiana, and thus give the plaintiff á better bill:, but then the same court would have jurisdiction,, so that the plea would be nugatory, and subject the defendant to all the consequences which he sought to. avoid. The-reason given for the rule of pleading, in chancery, shows its entire inapplicability to a suit in a federal court., “The reason of this is, that in suing fór his right, a person is not to be sent every where to look for.a jurisdiction; but must. be.told what other court has jurisdiction, or what other writ is proper for him, and this is matter *417of which the court, where the action is brought, is to judge.” 1 Ves. Sr. 203. The plaintiff knows his own residence.

It would be the most perfect anomaly in pleading, to draw up a plea to the jurisdiction of the court of chancery- in the English form, and apply it to a bill in equity in a circuit court of the United States, so as to meet the averment of citizenship of the plaintiff; according to the present decision of this Court. Its exhibition to an equity pleader in Lincoln’s Inn, who would read our constitution, the judiciary act, the rules and decisions of this Court, would not fail to cause him to admire it as an improvement in the science of pleading. For myself, I am utterly unable to comprehend, that the denial of an averment of a fact in a bill can be. deemed ajplea of any kind, unless it is the general issue, or a special issue on that fact; to be a plea in abatement, or in bar, every rule of pleading in law or equity requires that it should set up sonie matter not in the bill. And I can imagine no greater departure from the practice and principles of equity, than to deprive a defendant of the right of denying a fact stated in the bill, unless by exposing himself to the perils, arid incurring the consequences of a plea in abatement. If the decision now made, remains the law of the Court, the rule must be carried out to all its consequences. Equity pleading is a science; its settled rules form an admirable system; but an innovation upon them would produce the most crying injustice. To my mind, there cannot be a cáse which can more forcibly illustrate the dangerous effects than the present; when the record is examined, and its judicial history compared, throughout its progress to its present state, with the acts of congress, the rules of practice, and decisions of-this Court,

For these reasons, I feel constrained to express my dissent to the whole course of the Court in this case: whether it is tested by the practice and law of Louisiana, or the English system of equity, it is an entire departure from both, if I can understand either. The transition from the one system to the other, in the different stages of the cause, each operation to the manifest prejudice of the defendant; tends, in my opinion, to the worst of all consequences; utter uncertainty in the administration of the. law in Louisiana. If the legislative or judicial authority of the Union could- command any respect, the process act of 1792, never did or could apply to that state: if both are overruled by one decision, it cannot'be expected that the. solemn adjudications of this Court' will hereafter be deemed better evidence of its rules of practice, dr the principles of equity, than they have been *418in their bearing on the present case. My opinion on the general equity and merits of the case is as much at variance with that of the Court, as it is on the subjects to which my attention has been mainly directed:'J have forborne an examination of this part of the case, for obvious reasons. Whether the property in question, however valuable, shall be held by the plaintiff, or defendant, is a matter of small concern, compared with the consequences which must follow from the decrees rendered; if the opinions and reasoning of the Court must henceforth be taken as the established law.

This cause came on to be heard on the transcript of the record from the district court of the United States, for the eastern district of Louisiana, and was argued by counsel.. On consideration whereof, it is ordered and adjudged, and decreed, that the decree of the said district court, dismissing the hill of .the complainant, be, and the same is'hereby reversed and annulled; the Court being of opinion that the transaetionuff the 25th of July, 1822, between John A. Fort, Benjamin Story, and Edward Livingston, was a Joan to the said Edward Livingston, secured by a pledge, denominated an antichresis, in the law of Louisiana. And it is hereby further ordered, adjudged, and . decreed, that th'e cause be sent back for ' further procoedings in the court below, with directions that the cause be referred to a master, to take' an account between the parties. And it is hereby further ordered, adjudged,,and decreed, that' in taking said account, there be allowed to the defendant all advances which shall be shown to have been made by him, of paid on account of the loán made to Edward Livingston, on the 25th day of July, in the year 1822, with the interest which the said' Edward Livingston agreed to pay, of eigliteen per cent, per annum, to be..,calculated upon cash advances, from the time it was made until the 5th of August, 1823, and .after that time, at legal interest. And further, that in taking said account, the. defendant be allowed alLreasonable expenditures made by the defendant, and John A. Fort, in building, repairing, and safe keeping of the prbperty pledged.by the said' Edward Livingston, to secure the loan made.to him on the 2.5th day of July, 1822, and that the complainant be credited in such account .with all such sums as the defendant, or John A Fort, or either of them have received from the said property; and that, in taking such account, the rents and profits be applied first, to the payment of the sums necessarily incur*419red in building ánd repairing. Secondly, to the payment of the interest on the sums which shall appear to have been advanced on the said loan, or in the improvement of the lot. And thirdly, to the discharge of the principal of the said loan. And if, on taking said account, it shall appear that there is a balance due to the complainant, it is hereby further ordered, adjudged, and decreed, that the defendant pay to the complainant such balance, within six months from the time of entering the final deer fee in the cause, and shall surrender and reconvey the said property‘to the. complainant, or such person, or persons as shall bb shown to be entitled to the same. And if, upon the taking of said account, it shall be found that any balance is due from the estate of the said Edward Livingston, deceased, to the defendants, it is hereby further ordered, adjudged, and decreed, that on paying or tendering to the defendant the said balance, he shall deliver up the possession, and- reconvey to the person or persons who shall appear to be entitled to the same, the property so pledged, to secure the aforesaid loan. And it is further ordered, adjudged, and decreed, that in case a balance shall be found due to the defendant, and shall not be paid within six months after' o. final decree of the district court, then the said property shall be sold at such time and on such notice as the said court shall direct; and that the proceeds be first applied to the payment of the balance due the defendant, and the residue thereof be paid to the complainant.

Note. Mr. Chief Justice. Taney, having been counsel in this cause, did not-sit in the same.