complaint is viewed with reference to either of the distinct grounds. which it presents for equitable jurisdiction,-a fortiori, if it be viewed. with reference to all,-it states a case over which a court of equity has undoubted cognizance.

As to the cause upon the bill, amended bill, answer, pleas, and proofs. The averments of the bill which it is necessary to consider are as follows: That the complainant was the legitimate daughter of Daniel Clark, and by his last will and testament (will of 1813) became his universal legatee and inherited the property known as the Blanc tract, which is set out in the bill by metes and bounds; that in the year 1834 the First Municipality, a corporation whose property and liabilities were, by the amended charters, transmitted to the present city of New Orleans, fraudulently obtained possession. under a pretended title of the said Blanc tract, and in the year 1837 divided it into squares and lots, and for a price exceeding $400,000 conveyed it to a multiplicity of grantees, who, by mesne conveyances, granted in parcels and subdivisions said tract to tenants, who, as well as the original and intermediate grantees, took in bad faith. The bill further avers an eviction and recovery by the complainant against these tenants for the entire tract, and for fruits for portions. of the time of disseizin; their insolvency; that the defendant is a warrantor of all said tenants; was notified, and, in fact, made the defenses in the suits terminating in the judgments for eviction and for fruits; that a separate suit for a portion of this tract was commenced. and maintained against the defendant, in which all of the facts and propositions of law relating to complainant's title and the liability and wrong-doing of the defendant were judicially determined; that, in spite of the requests of the tenants to surrender to the complainant, the defendant compelled them by threats to allow her to continue the defenses; that, as a final resort, when the rights of the. complainant had been, after 35 years of litigation, fully established by the probate of the spoliated will of Daniel Clark, by the supreme court of this state, and by the complete establishment of the rights of the complainant to this property, as against the defendant, by decrees between these parties by the supreme court of the United States, the defendant, in the year 1867, caused a suit to be instituted for the pretended purpose of revoking the probate of the will of Daniel Clark, and thereby delayed and hindered the complainant's recovery for a further period of 10 years; that all this delay and hindrance has been caused by the defendant alone for the purpose of enriching herself by thereby saving herself from her ultimate liability upon her warranty for the return of the price and for fruits and revenues; and upon these averments the complainant demands judgment against the defendant for the rents which were received, and which ought to have been received, and which the complainant would have received but for the alleged long-continued and enormous wrong of the defendant.

The defenses contained in the answer of the defendant are, in substance, a denial of the bill, as well as (1) plea of prescription of one, two, and three years; (2) good faith of the defendant; (3) reduction of amount alleged by the bill to have been received for the property at public auction; (4) collusion in the case of Gaines v. Hennen; (5) denial of insolvency of the tenants; (6) plea that the judgment in the case of Gaines v. City of New Orleans is such an adjudication as precludes complainant from bringing this suit; and (7) irregular and fraudulent character of some of the judgments in the Agnelly and Monsseaux, i. e. the possessory, suits.

I will consider these defenses seriatim:

(1) Prescription. This is a suit which, according to all authorities, both under the common law and the law of Louisiana, could not have been brought until the complainant had recovered possession. Gaines v. City of New Orleans, 15 Wall. 633. Her judgments in the Agnelly and Monsseaux cases, wherein she recovered judgment for possession and for partial fruits, were rendered May 7, 1877, and therefore did not become final until May 3, 1879. This present suit was filed August 7, 1879. All ground, even for discussion as to prescription, is wanting.

(2) Good faith of the defendant. This issue has been absolutely and finally settled adversely to the city of New Orleans, in Gaines v. City of New Orleans, 6 Wall. 642, and 15 Wall. 633.

(3) As to the amount of price received from the sale of the Blanc tract at the public auction in 1837. The report of the master and the adjudication shows the aggregate amount derived from this sale to have been $482,525, besides $86,405, the amount of price of adjudication of certain lots for which no evidence of deeds of sale appears. Master's Report, p. 24.

(4) As to any alleged collusion between the parties in the case of Gaines v. Hennen, there is not a scintilla of evidence in the record in support of this averment; and it becomes of little moment except as bearing upon the question of good faith of the defendant. This has, as has been observed before, been settled, and is no longer an open question.

(5) The matter of the insolvency of the tenants appears by the testimony of Florville Foy and Jules Vienne.

(6) Plea that the judgment in the case of Gaines v. City of New Orleans is such an adjudication as precludes the complainant from bringing this suit. The suit here referred to is known in this record as suit No. 2,695. It was an ejectment suit, conducted on the equity side of this court as a suit in part for discovery. It was filed originally with reference to the whole Blanc tract. The defendant's answer contained a disclaimer as to any title or possession of the tract except that square upon which was situated the draining machine and some other small pieces. The answer disclosed the names of the occupants who were alleged to be in possession of the rest of the tract.

Upon the coming in of defendant's disclaimer the complainant took no further proceedings as to the portion of the tract covered by it, and the cause proceeded and the judgment was with reference to the portion as to which possession was not disclaimed. There was no judgment upon the disclaimer. In fact no issue was joined upon it. The judgment has precisely the same scope and effect as if the bill, as originally filed, had sought a discovery and recovery of property and fruits as to the square occupied by the drainage machine alone, and the other squares not included in the disclaimer. Indeed, after the disclaimer it became necessary that the possessory actions against the occupants should be commenced and terminated before this present action would lie. An exception was made after the cause had come back from the supreme court and was before the court upon the master's report, which presented the question whether the complainant could treat the city as a trustee for the price received by her for the Blanc tract. The question was solved by the court declaring that in an ejectment bill against a party holding by an adverse title there could be no trust raised up as to the price received, in case of sale of a portion; i. e., that the whole aim of the bill was inconsistent with the claim thus urged by the exception. This ruling and decrce can by no construction be made to be adverse to, or even relate to, the claim presented here. This claim is not only not inconsistent with the ejectment suit, but follows and could only follow as a consequence from that suit and the recovery in the possessory suits. The revenues upon which the master has reported are those derived or derivable from lands not included in the suit No. 2,695, after the disclaimer and not embraced in the judgment.

(7) That some of the judgments against the tenants (in the Agnelly and Monsseaux suits) were irregular and fraudulent. The evidence which seems to be relied upon is that in some of the instances, in which judgments pro confesso were entered, the subpoenas are not in the records. This by no means overcomes the prima facie case made by the judgment itself, as it cannot be presumed the court would have rendered it without proof of service of process. I do not find that the special defenses are in any respect sustained.

The exceptions to the report of the master are for the most part treated and disposed of in the subsequent portions of the opinion. As to those not there discussed which have been filed by the defendant:

(1) As to the order of reference. I take it, it is not to be disputed that the court may order a reference of any part of an equity cause, whenever, in its opinion, the ends of justice require it, and the matter referred can be considered by the master consistently with the rules of pleading and evidence. This order was made by the court in anticipation of the long time necessary to take and state this intricate and prolonged account, and with the purpose of putting into force the condition and stipulation upon which the judgment

against the defendant, taken pro confesso, had been vacated, viz.: To speed a cause which sought to enforce a right to an inheritance, the contest as to which had been prolonged far beyond two average human lives, and with respect to which the controlling principles had been settled never to be shaken. The thing as to which the account was directed to be taken was specifically defined, and the rules upon which it was to be taken were clearly set out in the order of reference. The only question worthy of any consideration, with reference to such an order, would be whether it was made at a point in the litigation, when a reference of the matter committed to the master could be had without prejudice to the rights of the litigants. The demurrer to the whole bill had been overruled, after a very full argument, and the court had announced its opinion to the effect that that portion of the bill, and that alone, was good by which the complainant sought to recover from the defendant the rents which she might and would have derived from that part of the Blanc tract from which she had been kept out of possession by the devices of the defendant, through her warrantees who occupied. Leave, accordingly, was given to the defendant to still demur to the rest of the bill, and a reference was directed to ascertain the rents and profits which the complainant would have derived had she been allowed to remain in undisturbed possession. See Decree, March 27, 1880. This inquiry was just as capable of being conducted at that point in the progress of the cause as after a decree upon the evidence. The complainant, in acting upon the order, incurred the risk of the costs. of the reference, in case she should obtain no decree upon the evidence when the cause should have been finally submitted. The defendant was in no respect prejudiced, and was deprived of nothing but the opportunity for causing still further delay.

(2) As to the exception that the master has not reported upon certain questions. Nothing was referred to him except to take and state the account of rents and profits as to the tract of land known as the Blanc tract,-both those realized and those which might have been acquired with ordinary good management.

(3) As to the exception that, in some respects, the master has not correctly located the tract. The court finds that the location adopted by the master is confirmed by the contemporaneous maps offered as exhibits in this cause.

(4) As to the exception that the master has carried on the charges for rent after the judgments of eviction. This exception is founded on a misapprehension. The master's report shows that he charges the defendant with rents only up to the date of eviction, under the Agnelly and Monsseaux judgments, although he has properly continued the allowance of interest upon the rent dues, or amounts of rents, till judgment. The other exceptions to the master's report on the part of defendant have been considered in the opinion and are overruled. As to the exception to the master's report on the part of the

complainant, it is allowed to the extent and for the reasons set forth in the opinion. The additional exception as to the property conveyed to McDonogh, and by him bequeathed to the city of Baltimore, is also founded on a misapprehension. The account is brought down only to 1848, the date of the conveyance from the defendant to McDonogh.

The question remains whether the complainant has substantiated her bill, and, by the proofs, made such a case as to entitle her to a recovery. The complainant's title-that is, her capacity to take; her heirship; her legitimacy; the will, and her right to inherit under it; the entry into possession of this Blanc tract by the defendant; that the defendant in bad faith took her title and sold the property and received the price, and in all her relations to said property is to be deemed a person dealing in bad faith; that complainant has not renounced her title; and the legal identity of the First Municipality and the city of New Orleans, the defendant,-all these facts and issues have been settled beyond question by the supreme court of the United States by a solemn judgment between these parties. See record in suit, Gaines v. City of New Orleans, No. 2695 of docket of this court, and the case as reported, 6 Wall. 716 and 15 Wall. 624.

Under the civil law and the textual provisions of our Code, the seller, even in good faith, in case of eviction, is bound (1) for a restitution of the price; (2) for a restitution of all fruits and revenues, which the vendee is obliged to restore to the owner; (3) for the costs; and (4) for all damages which the vendor has suffered, besides the price paid. Civil Code, arts. 2506, 2507, 2510; Morris v. Abat, 9 La. 557; and Downes v. Scott, 3 La. Ann. 278.

The possessor in bad faith is bound to surrender the thing immediately, and the seller and warrantor, who took and conveyed in bad faith, is bound forthwith to restore the price to his vendee and to acquit, i. e., discharge, for him his liability to the owner without suit or condemnation. He is in law a usurper, and liable for his successors. Pothier, Cont. of Sale, No. 127.

The complainant's title being incontrovertibly established, as well as the mala fides of the defendant, the simple inquiry is, in what manner and to what extent did the defendent delay or hinder restitution? for any delay, much more, any hindrance, was a fault. The testimony shows:

That in 1836 this complainant first commenced her judicial demands against the First Municipality, in whose place the defendant stands, for this property; that six times she has been compelled to go before the supreme court of the United States, upon an appeal or writ of error, in the prosecution of her efforts to obtain restitution, mediately or immediately, from the defendant; that, prior to the year 1855, that tribunal could give no relief, though intimating that they were impressed with the equity of her cause, because she claimed property situated in the state of Louisiana, under a will not probated in that state, and from a testator whose will was declared by the probate courts of that state to be a different instrument, and one which excluded the