EIGHTEENTH CONGRESS.

Sess. I. Ch. 181.

1824.

63

ing in civil causes in the courts of the United States , that now are, orhereafter may be, established in the state of Louisiana , shall be conform-able to the laws directing the mode of practice in the district courts ofthe said state: Provided, That the judge of any such court of the Uni-

causes, they are adopted by that act, and will govern the practice in the courts of the United States .Ibid.

If there are no equitable claims or rights cognisable in the courts of the state of Louisiana , nor anycourts of equity, and no state laws regulating the practice in equity causes, the law of May 26, 1824,ch. 181, does not apply to a case of chancery jurisdiction ; and the district court of Louisiana , wasbound to adopt the antecedent modes, authorized under former modes of practice. Ibid.

Under the law of Louisiana , there are two kinds of pledges, the pawn and the antichresis. A thingis said to be pawned, when a movable is given as a security; the antichresis consists of immovables.Livingston v. Story, 11 Peters, 351.

L. conveyed in 1822, in fee simple, to F. and S., certain real estate in New Orleans , by deed,for a sum of money paid to him, and took from them a counter-letter, signed by them; by whichit was agreed, that on the payment of a sum stated in it, on a day stated, the property should be recon-veyed by them to L.; and if not so paid, the property should be sold by an auctioneer; and, afterrepaying, out of the proceeds, the sum mentioned in the counter-letter, the balance should be paid toL. The money was not paid on the day appointed, and a further time was given for its payment, withadditional interest and charges; and if not paid at the expiration of the time, it should be sold by anauctioneer. An agreement was at the same time made by L., that the counter-letter should be deliv-ered up to F. and S., and cancelled. The money not being paid, it was again agreed between theparties, that if on a subsequent day fixed upon, it should not, with an additional amount for interest,&c., be paid, the property should belong absolutely to F. and S. The money was not paid, and F. andS. afterwards held the property as their own. The Supreme Court held this transaction to be an anti-chresis, according to the Civil Code of Louisiana; and on a bill filed in the district court of the UnitedStates for the eastern district of Louisiana , in 1832, decreed that the rents and profits of the estateshould be accounted for by S., who had become the sole owner of the property by purchase of F.’smoiety; and that the property should be sold by an auctioneer, unless the balance due S., after charg-ing the sum due at the time last agreed upon for the payment of the money, and legal interest, withall the expenses of the estate, deducting the rents and profits, should be paid to S.; and on paymentof the balance due S., the residue should be paid to the legal representative of L. Ibid.

The antichresis must be reduced to writing. The creditor acquires by this contract, the right of reap-ing the fruits, or other rewards of the immovables given to him in pledge, on condition of deducting,annually, their proceeds from the interest, if any be due to him, and afterwards from the principal ofhis debt. The creditor is bound, unless the contrary is agreed on, to pay the taxes, as well as theannual charges of the property given to him in pledge. He is likewise bound, under the penalty ofdamages, to provide for the keeping and necessary repairs of the pledged estate; and may lay out,from the revenues of the estate, sufficient for such expenses. Ibid.

The creditor does not become proprietor of the pledged immovables, by the failure of payment at thestated time; any clause to the contrary, is null: and in that case, it is only lawful for him to sue hisdebtor before the court, in order to obtain a sentence against him, and to cause the objects which havebeen put into his hands, to be seized and sold. Ibid.

The debtor cannot, before the full payment of his debt, claim the enjoyment of the immovableswhich he has given in pledge; but the creditor who wishes to free himself from the obligations underthe antichresis, may always, unless he.has renounced this right, compel the debtor to retake the enjoy-ment of his immovables. Ibid.

The doctrine of prescription, under the civil law, does not apply to this case, which is one ofpledge; and if it does, the time before the institution of this suit had not elapsed, in which, by the lawof Louisiana , a person may sue for immovable property. Ibid.

By the contract of antichresis, the possession of the property is transferred to the person advancingthe money. In case of failure to pay, the property is to be sold by judicial process: and the sumwhich it may bring, over the amount for which it was pledged, is to be paid to the person making thepledge. Ibid.

If any rule has been made by the district court of Louisiana , abolishing chancery practice in thatcourt, it is a violation of those rules which the Supreme Court of the United States has passed to regu-late the courts of equity of the United States . Those rules are as obligatory on the courts of theUnited States in Louisiana, as they are upon all other courts of the United States ; and the only modi-fications or additions which can be made by the circuit or district courts, are such as shall not be incon-sistent with the rules prescribed. When the rules prescribed by the Supreme Court do not apply, thepractice of the circuit and district courts shall be regulated by the practice of the high court of chan-cery in England. Story v. Livingston, 13 Peters, 359.

The Supreme Court has said, upon more than one occasion, after mature deliberation upon able argu-ments of distinguished counsel against it, that the courts of the United States in Louisiana possessequity powers under the constitution and laws of the United States . That if there are any laws inLouisiana , directing the mode of procedure in equity causes, they are adopted by the act of 26th May,1824, ch. 181, and will govern the practice in the courts of the United States . But if there are no lawsregulating the practice in any equity causes, the rules of chancery practice in Louisiana , mean the rulesprescribed by the Supreme Court, for the government of the courts of the United States , under the actof Congress of May S, 1792, ch. 36, sec. 2. Ibid.

No court ought, unless the terms of the act of Congress render it unavoidable, to give a constructionto an act, which should, however unintentionally, involve a violation of the Constitution . The terms ofthe act of 1824 may well be satisfied by limiting its operation to modes of practice and proceedings inthe courts below, without changing the effect or conclusiveness of the verdict of a jury upon the facts liti-gated on the trial. The party may bring the facts into review before the appellate court, so far as they bear

civil causes, tobe conformableto the laws di-recting themode of prac-