the court of appeals, in the case of Morse v. Gould, 11 N. Y. 282, when the court held the act to be valid. This decision was also prior to that in Von Hoffman's Case.

It is then to be noted that the act of exemption dealt with by the court of appeals was one which fell within the usual exercise of state powers. The articles exempted were of small value, and necessary to enable the debtor to live. As applied to the act now before the court, the principles announced leave no doubt of the invalidity.

There was great inducement to this kind of legislation in the southern states, arising out of the disasters of the war. But while much can be said in extenuation, nothing can be judicially said in justification of it.

The following exemptions have been made:
Florida ..
Tennessee

$1,000
1,250
1,500
1,500
2,000

3,000

4,000

7,000

With the operations of these exemptions upon subsequent contracts we do not deal. The power of the states is ample, and contracts made under such laws are referable to them. It is in this view a political, not a judicial question. But when such exemptions are applied to past contracts, their illegality is self-evident. We take the case of the Georgia act, which exempts $3,000, of which $2,000 was of land, in gold value. This was a period when lands were greatly depreciated. The state had not recovered from the embarrassments of war; all were sellers, there were few buyers. In this depreciated condition the law assigns land to the value of $2,000 in gold. Such lands then åssigned would to-day bring three or four times the amount.

The population of the state is estimated at 1,500,000. Under the law every head of a family is entitled to $2,000, in land. Assuming that five persons constitute a family, we have three hundred thousand heads of families, and if each "head" obtained the $2,000 in land, the law appropriates land to the amount of $600,000,000; this is three times more than all the land in the state is estimated at.

(No counsel appeared for defendant in error.)

Mr. Justice Swayne delivered the opinion of the court:

This is a writ of error to the supreme court of the state of Georgia.

for his refusal that the premises had been set off to Hart under the provisions of the act passed by the general assembly of the state, and approved October 3, 1869, entitled "An act to Provide for Setting Apart a Homestead of Realty and Personalty, and for the Valuation of said Property, and for the Full and Complete Protection and Security of the Same to the Sole Use and Benefit of Families, as Required by Section 1st of Article 7th of the Constitution, and for Other Purposes." *Gunn thereupon petitioned the super- [*621 ior court of the county, for a writ of mandamus to compel the sheriff to make the levy. The petition set forth that the land in question was the only property known to him subject to the lien of his judgment, except a tract of twentyeight acres, of the value of $100, situated in the county of Stuart, which was also included in the homestead so set apart; that the premises in question were worth the sum of $1,300, and that they embraced a much larger number of acres than the real estate exempt from levy and sale by the laws in force when the judgment was recovered and when the debt on which it was founded was contracted. It does not appear that these allegations were denied, and we do not understand that there is any controversy upon the subject. After a full hearing the court affirmed the validity of the act in its retrospective aspect, and gave judgment against the petitioner. The supreme court of the state affirmed this judgment.

The 1st section of the 7th article of the Constitution of Georgia of 1868 provides that "Each head of a family, or guardian or trustee of a family of minor children, shall be entitled to a homestead of realty to the value of $2,000 in specie, and personal property to the value of $1,000 in specie, to be valued at the time they are set apart, and no court or ministerial officer in this state shall ever have jurisdiction or authority to enforce any judgment, decree or execution against said property so set apart, including such improvement as may be made thereon from time to time, except for taxes, money borrowed or expended in the improvement of the homestead, or for the purchase money of the same, and for labor done thereon, or material furnished therefor, or removal of encumbrances thereon."

The 1st section of the act of the 3d October, 1868, is in the same terms.

It may well be doubted whether both these provisions were not intended to be wholly prospective in their effect. But as we understand the supreme court of the state has come to a different conclusion, we shall not consider the question.

On the 12th of May, 1866, the plaintiff in error recovered in the superior court of Ran*The statute in force when the judg- [*622 dolph county a judgment against William R. ment was rendered declared that the following Hart for the sum of $402.30 principal, and property belonging to a debtor who was the $129.60 interest up to the date of the judg- head of a family should be exempt from levy ment, and costs. An execution was issued upon and sale, to wit: “Fifty acres of land and five the judgment, and placed in the hands of the additional ones for each of his children under defendant in error as sheriff of that county. He the age of sixteen years, the land to include the was thereby commanded to make the sums dwelling-house, if the same and improvements above mentioned, and further interest upon the do not exceed $200; one farm horse or mule, principal from the 12th of May, 1866, and the one cow and calf, ten head of hogs, and $50 costs. The plaintiff in error requested him to worth of provisions, and $5 worth additional levy upon a tract of land of 272 acres, belong- for each child; beds, bedding and common beding to Hart, the defendant in the judgment. I steads sufficient for the family; one loom, one Barry refused. He assigned as the only reason spinning wheel, and two pairs of cards. and one

rents and profits accruing therefrom since 1834. A reference was made to a master in chancery, to take an account of the said rents and profits. To the master's report when filed, the respondent took certain exceptions, which were overruled and a decree entered in accordance with the report; whereupon the respondent took an appeal again to this court.

The case is further stated in the opinion of the court.

Messrs. Miles Taylor and J. McConnell, for appellant:

Messrs. J. Q. A. Fellows and James Emott, for appellee.

The exceptions were not made nor were claims preferred before the master. They should have been dismissed without hearing and the report confirmed.

McMicken v. Perin, 18 How. 507, 15 L. ed. 504, and 13 Pet., therein referred to. The 83d rule does not cover such defenses as

1. The allowance of the sum of $125,267.77, upon the hypothesis adopted, based upon the value of the land and buildings without the drainage machine, and giving credit for the ordinary repairs to the buildings, independent of the machine, is excessive, illegal, and inequi-are set up in this case. Exception was taken table. before the court, to the report of the master that he refused to consider the plea of prescription of three years.

2. Any allowance of rents and profits based upon the value of any portion of the buildings or other improvements placed upon the square of ground in question, by the city of New Orleans, all of which were made with its own materials and at its own expense, as due and owing by the city of New Orleans to the complainant, under the decree in her favor for the recovery of property vested in her as the instituted heir of Daniel Clark, is illegal and contrary to equity.

3. The said square of ground having been dedicated to the public use by the city of New Orleans in 1836, to accomplish an important and necessary public purpose, and the buildings and machinery placed upon the same having been ever since employed in the accomplishment of that public purpose, there is no right, either in law or equity, to allow to the true owner of the said square of ground at the time it was so dedicated to the public use, anything more for the rents and profits of the same, than legal interest on the value of the square at the time it was so dedicated to public use in 1836; and the allowance of any sum exceeding $50000 is in violation of both law and equity, and is an error.

Civ. Code, art. 3503, is referred to as conclusive on the question of prescription for three years. The words of the Code are in English, "The action for arrearages for rent charged, annuities and alimony, or for the hire of movables or immovables are prescribed by three years, unless," etc. The French text is,"L'action en payment des arrerages de rentes perpetuelles on viageres, ou de pensions alimentaires, ou des loyers ou fermeges des biens meubles et immeubles," etc.

The thing sought to be recovered here is evidently different from that described in the Code; one is the arrears due under a contract of lease; the thing claimed in this proceeding is the amount of damages caused, or rather the amount of the fruits and revenues, not only which were but which might have been made by the possessor in bad faith from the commencement of his possession.

The other grounds of exception may be summed up in this: that the defendant was entitled to the value of the improvements placed by it upon the property recovered, and the rents and profits resulting from such improvements.

4. There is no right or authority in law for The question of bad faith was decided in 6 the allowance to the plaintiff of any sum or Wall. 18 L. ed., by this court, as one of the sums of money for rents or profits on the said grounds for maintaining the rights and pretensquare of ground from 1836, predicated on any sions of this defendant. The authorities cited fact, or the assumption of any fact, that the go to the full extent, that improvements as well city derived any profits and advantages from as the rent of improvements are due to the real taxes levied upon the increased or augmented owner, where bad faith existed in the defendvalue of other lands, resulting from the opera-ant at the time possession commenced. tion of the drainage system established, maintained and carried on by the city, at its own expense from 1836, and the allowance of any such rents and profits was and is an error, and the judgment appealed from ought to be reversed therefor.

The appellant made no claim for improvements in the answer to the bill; made no claim before the master; made none in the exceptions in such shape as to be intelligently acted upon. In the cases in the Louisiana Reports, where costs of improvements have been allowed, the amounts have been deducted from the "rents and revenues" of the whole, the soil as well as the improvements. 16 La. 414; 3 Rob. 138.

5. The confirmation of the third estimate made by the master in his report, made by the court by setting off the cost of the construction, and of the repairs made by the city on the Bad faith being the basis of the decree in square of ground in question, against the 6 Wall. 18 L. ed., the claimant is entitled to profits said to have been derived by the city payment for fruits and revenues occurring befrom the drainage machine for the past thirty-fore the institution of the suit, from the comfive years, has the effect of giving to the plain-mencement of possession. tiff the buildings and machinery erected on it, with the materials and at the expense of the city, without paying the city for the value of the materials and the cost of the workmanship, or any other price whatever, as required by law,

2 Hen. Dig. 1195, No. 5, and authorities there cited; Doneldson v. Hull, 7 Mart. (N. S.) 112; Lowry v. Erwin, 6 Rob. (La.) 192; Williams v. Booker, 12 Rob. (La.) 256; Hill v. Bowden, 3 La. Ann. 258; Rhodes v. Hooper, 6 La. Ann. 356.

It is asserted in the exceptions, that respond- I show what profit the city actually did derive ent demanded of complainant through the from the use of the premises. This was found master, that she should make her election of to be $208,825, actual net profits, derived in all keeping the improvements at the value of the the time from 1835 to 1871, in all thirty-five material and price of workmanship; or require and one half years, and which was reported as them to be taken away. The master, however, another amount which might be allowed the states that counsel for respondent only stated complainant, as being the actual profits derived to him that it would call upon complainant by the city, instead of the actual rental value through him to elect, under article 500, Civil of $499,819.97. Code, but did not do so; and he understood it to mean simply to give notice of its intention, but as it had not done so, he presumed it had been abandoned.

It is further stated in the exceptions, that the square, being used for a place to locate a draining machine, was reserved from sale, withdrawn from commerce and dedicated to public use. Whatever the conclusions may be from such a statement of the premises, it does not follow that the property was withdrawn from commerce or dedicated to public use, because it was used to erect thereon a draining machine. It was property subject to sale; it was neither a street nor public square nor dedicated to public use, other than property used by the city for ordinary municipal purposes. Streets are not the property of the corporation, cannot be sold nor devised; the title to them is in the public; so it is with public squares, parks, and the like, but not with property used by the corporation. It is also asserted that the property, at the time the city took possession, was of little or no value, and is worth from $1,500 to $2,000 only, and that the city, if liable at all, is only liable for the interest on the value of the profits.

There is no proof of the facts asserted, while the decree is as to the rents and profits, and the master reported accordingly.

The law does not confine the amount to the rents received by the possessor, in bad or good faith even. The revenues are what might have been received; what the property could have brought.

Winter v. Zacharie, 6 Rob. 468.

The master reported three amounts for the consideration of the court as due, under different suppositions of the law of the case. The facts were undisputed; they were in proof and are in the record.

On one supposition, and which we submit is worthy of consideration, the master reported

the aggregate due by the city, of principal and

interest, for the rent and profits, as $499,819.97.

Six witnesses were examined as to the rental value of the property; the average estimate is, per annum, $8,000. The rents from July 1, 1835, to March 1, 1871, would be $285,333.33, and the interest on this, at five per cent, the legal interest in Louisiana, would be $247,266.44, in all, $532,599.77; less expenses for repairs as proved, $17,333.33, and interest on same, $15,446.47, say $32,779.80, leaving the balance | due $499,819.97, as above.

We take it to be beyond dispute that the rents and profits mean the rental value of the property, and that it will not avail the defendant not to have derived that profit.

But counsel say, as they said before the master: we did not derive the large amount of profit allowed by the master. To gratify them in this respect, he made another calculation to

But the defendant says; we are not satisfied with this; we must be allowed for the use of our machinery, etc.

Mr. Pilie, late city surveyor and witness for appellant, says that $2,400 per year would be a fair rental of the property without the machinery. On their own basis of calculation, then, we find as a final conclusion $125,266.79, and this amount the court allowed.

They have claimed a deduction for use of machinery, and here it is allowed, and the judg ment is rendered accordingly. What more could be asked? The conclusion is that this appeal was taken for delay, and the penalty should be inflicted. All the complaints about the value of improvements is here met at once in the third amount, reported by the master.

The total rental value of the property and interest, as incontestably found, is $532,599.77. The entire expense, including costs of buildings, machinery, and everything, even to costs of canals and collection of a drainage tax, was principal and interest, $373,050. This would leave $159,549.77. But from the $373,050 should be deducted the last three items of the principal, in all, $44,818, and a proportionate amount of interest, say $40,202.87-in all, $85,020.87, which would produce, on the basis as laid down for us by counsel of defendant-$244,570.64, as the net revenues, being the result, after deducting all cost of machinery, repairs, building, and the expenses of running the same, including interest calculations pro and con, from the gross revenues, as follows: Net revenue, at $8,000 per year... $532,599.77 Gross costs, improvements and re

pairs...

Net income, after all deductions,
as above

288,029.13

$244,570.64

been allowed, and instead of the $125,266.79, instead of $499,819.97, as we claim should have as allowed by the judgment on the master's re

port.

But were it necessary, in order to maintain the judgment rendered, and which, under the testimony, is shown by the calculations might be doubled, the appellant could be shown not to be entitled to any allowance for the improvements. Such is the ruling of the courts in Louisiana in cases similar to this now under consideration.

Herriot v. Broussard, 4 Mart. (N. S.) 267; Lejeune v. Barrow, 11 La. Ann. 501, 4 La. Ann. 145, 3 La. Ann. 204.

The case on the facts before the court is clear for much more than the amount claimed. The value of improvements is allowed; and even if no interest on the net annual revenues had been allowed up to the day of judgment, the sum due March 1, 1871, was $133,501.33; over $8,000 more than allowed. Remaining satisfied with the award, we invoke from the

This is an appeal by the defendant below, from a decree of the circuit court of the United States for the district of Louisiana.

The decree directs the payment to the plaintiff of $125,266.79, for rents, profits, and revenues of property recovered by her in a suit against the city of New Orleans. In the decree it was adjudged that the plaintiff was entitled to recover certain property, together with all yearly rents and profits accruing from the same, after the city came into its possession, to wit: on the 26th of September, 1834. Under the decree, the plaintiff was put in possession of several vacant squares of ground and of a half square upon which the city had erected an expensive draining machine. From this property the city had received no rents and profits, except that it caused an increase of its general revenue. The master reported what he deemed to be a fair and just compensation for the use of the property recovered. The compensation thus awarded was for the use of the land not only, but of the buildings and improvements placed upon it by the city.

exceptions of the master's report only, and not to the original judgment.

1. It is only where the master or the judge, in acting upon his report, has departed from the order of the judgment or has omitted to enforce its provisions, that a just objection can arise. The judgment has decided that the plaintiff was the owner of this property in question in 1834, when the defendant entered into its possession; that then and at all times since the defendant has illegally kept the plaintiff out of its possession, and has itself been in its possession during the same period; and that it obtained and during all this time held such possession wrongfully and in bad faith.

This statement furnishes an answer to the suggestion that the rents and profits were allowed for one year, during which the city was not in possession. This is not an open question. It is settled by the judgment, and the allowance is in accordance with the decision.

It is also decided "that the city of New Orleans ought to be deemed and held, and is hereby deemed and held, to have purchased the property in question with full notice that the said sale at auction, under the pretended authority of the said Richard Relf and Beverly Chew, and the said act of sale to the said Evariste Blanc, were unauthorized, illegal, null and void, and in derogation and fraud of the rights of the person or persons entitled to the succession of the said Daniel Clark." This sale to Evariste Blanc was the source from which the city derived its title to the property in question. During the whole time of its holding, the city was a possessor in bad faith of the property of the plaintiff. The Civil Code of Louisiana declares as follows:

Art. 3414. "The possessor in good faith is he who has just reason to believe himself the The value of the use of the land and the master of the thing which he possesses, albuildings, with the interest upon the yearly though he may not be in fact, as happens to amounts, was found by the master to be $157,-him who buys a thing which he supposes to be600. From this he deducted $32,333.21 for the long to the person selling it to him, but which ordinary repairs to the building, independent in fact belongs to another." of the draining machine. The balance was the sum stated, of $125,266.79. In affirming the report of the master, the judge at the circuit allowed nothing against the city for the profits derived from the drainage machine, and al-and defective." lowed nothing in its favor for the construction of the machine and the repairs upon it. He set off the one against the other.

Art. 3415. "The possessor in bad faith is he who possesses as master, but who assumes this quality, when he well knows that he has no title to the thing, or that his title is vicious

By the same Code a possessor in good faith may enjoy the fruits of the property until it is claimed by the owner, and is bound to account 1. It is insisted that this decree is erroneous, only from the time of a demand for restitution. in that it has the effect of giving to the plain-He is also entitled, when evicted, to be reimtiff the buildings and machinery erected by the city, with the materials and at the expense of the city, without paying the value of the materials and the cost of the workmanship, or any other price whatever.

2. It appears that the sum of the rents and profits above stated is made up in part by the allowance of interest at the rate of five per cent per annum on each year's rent, from the end of the year. This is said to be in violation of the doctrine of the Code of Louisiana.

bursed for the expenses he may have incurred on it. Art. 3416.

To the same purport are articles 500 and 501. "When plantations, constructions, and works have been made by a third person, and with such person's own materials, the owner of the soil has a right to keep them, or compel this third person to take away or demolish the same. If the owner requires the demolition of such works they shall be demolished at the expense of the person who erected them, without any compensation. Such persons may even be sentenced to pay damages, if the case require it, for the prejudice which the owner of the soil may have sustained. If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value The appeal before the court arises upon the and of the price of workmanship, without any

3. It is said that the refusal to allow the plea of prescription in bar of all rents or profits for the use of the square, which were received by the city more than three years anterior to the institution of the suit on the 26th of December, 1856, was an error.