text:
    Bank of Mobile v. John L. Harris.
    Where a debtor in insolvent circumstances transfers all his remaining property, consisting principally in stocks, to a brother residing in a distant State, who bad never before engaged in stock speculations, taking the purchaser’s notes for a large amount of the price of the sale, it will be regarded as a transaction not in the usual course of trade, and, so far as creditors are concerned, will be annulled.
    The debtor who sells the whole of his property to the prejudice of his creditor, is presumed to do it with the intention of defrauding him; and a purchaser who knowingly aids the debtor in carrying out that intention, will be considered as a party to the fraud, and the property so conveyed be made subject to the claims of the creditors of the insolvent. The purchaser in such case, upon the annulment of the sale, will bo entitled to a restitution of the price, only so far as he can prove it has enured to the benefit of the creditors.
    APPEAL from the Third District Court of New Orleans, Kennedy, 3.

      Benjamin and Micou, for plaintiff.

      C. Roselius, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The Bank of Mobile sues the 'defendant to annul a mortgage on a house and lot on Royal street and two slaves, executed on the 6th of June, 1848, by 33. B. Harris in favor of the defendant, to secure a sum of about ten thousand dollars, on the ground that 33. B. Hams was insolvent at the time, and tliat it was made to give an illegal preference to the defendant over his other creditors.

They seek, also, to annul the transfers made by E. B. Harris to the defendant, in the summer of 1848, of the following stocks: 294 shares of the capital stock of the New Orleans Canal and Banking Company; 305 shares of the stock of the Bank of Louisiana; and 300 shares of the stock of the Mechanics and Traders’ Bank of New Orleans. They allege that the sales and transfers of these stocks were fraudulent and simulated, and that the appai’ent sales were but trusts for the benefit of E. B. Harris, and intended to delay and defeat the real claims of the plaintiffs against him.

The plaintiffs held bills of exchange, which were accepted by E. B. Harris, to the amount of $35,000. Í They were protested the 1st and 10th of May, 1848, and suit was instituted upon them on the 20th of July, but on allegations of fraud against the President and Directors of the Bank of Mobile in obtaining the acceptances, a jury trial was claimed, and judgment was delayed until the middle of December. Executions were then speedily issued, and about five thousand dollars of the debt has been made, not, however, much exceeding the interest, and the execution has been returned that no property could be found to satisfy the balance of the judgment.

Between the protest of the acceptances and the rendition of the judgment, the house, lot and slaves were mortgaged, and the stocks in controversy transferred to the defendant, A large amount of other stocks have, since the protest of the bills, been transferred by E. B. Harris to the defendant. Some others were transferred by him to banks, in payment of debts for which they were pledged. An undivided interest in another lot of ground has been mortgaged to a bank for debt, and the whole visible means of E. B'. Hams has thus been exhausted. E. B. Harris is the brother of the defendant, and the transfers of the stocks which have been specified, are attacked as simulated.

The principles of law which govern this case are contained in the code. They give to creditors, when there is not a cession of goods, an action to annul any contract made in fraud of their rights. The action can only be exercised when the debtor has not property sufficient to nay the complaining creditor. Every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors of the obligor. No sale, however, or other contract, made in the usual course of the party’s business, can be annulled, although the party was in insolvent circumstances, and the person with whom he contracted knew of such insolvency. Articles 1965, 1966,1979 and 1981, C. C. Trusts are prohibited by our laws, and simulation can give no rights as to third persons. The frauds to which these principles apply, can generally be established only by presumptive evidence, and as to the presumptions, the code prescribes that they are left to the judgment and discretion of the judge, who ought to admit none but weighty, precise and consistent presumptions. Art. 2267, C. C. The remedy, incase transactions are annulled for fraud on behalf of the parties to them, is pointed out by article 1977, C. C.

E. B. Harris was a speculator in stocks, for the evidence shows that in May, 1848, he held them to an amount exceeding two hundred thousand dollars, and that they were pledged to banks for nearly half their value, probably to raise money, with which to make the purchases. He was protested on the 1st and 10th of May, 1848, on his acceptances, to the amount of $35,000, and remained under protest for this large sum until the 6th of June, 1848, when the mortgage in controversy was executed.

To remain under protest, for a length of time, is regarded as evidence of insolvency among merchants and stock dealers in all mercantile cities. It must necessarily be so regarded among them in order to support the credit which is essential to mercantile and banking operations.

The presumption of the insolvency of E. B. Harris, arising fromt he fact of remaining under protest for so large a sum, and for so long a time, is reduced almost to certainty by the testimony offered .by the defendant to show the solvency of his brother at the time. An estimate of his property was made on the 15th of May, 1848, by a committee of the Louisiana State Bank. His indebtedr ness is stated at $227,000; his means at $236,000;-’showing a surplus of $9,000. But it is evident the debt of $10,000, for which the mortgage in controversy was given, was not taken into consideration, and Mr Hepp, who made the estimate,thinks the debt of $35,000 to the Bank of Mobile, was not included in the statement. This is rendered more probable, by the fact that the debt was disputed by E.B. Harris, who himself furnished the statement, and moreover expi'essed, at the time, an unwillingness to pay debts contracted on account of others. Independently of the proof of his insolvency by the figures, all experience in this country has shown, that such an enormous indebtedness running upon interest, has never been paid by means so nearly equal in estimate. A single creditor for a large amount, as in this case, pressing his claim on account of not being placed on an equality with others, always disipates'such an imaginaay surplus, and leaves only dividends, or nothing, for the ordinary- creditors. If Harris was really solvent in June, 1848, there was nothing in the prompt sale for cash, at fair prices of stocks, of which his assets principally consisted, to produce a deficiency of thirty or forty thousand dollars by judgment, on which, within less than a year afterwards, nothing could be made, by execution.

W e are satisfied, therefore, that he was insolvent at the date of the mortgage in controversy. The excitable character of E. B. Harris, the agitation of mind which he manifested, and his disposition to talk of his misfortunes, exposed them to the public, induced the banks to investigate his solvability, and leaves not a doubt that his brother of whom he had been the agent, but who was here and accepted the mortgage, was apprised of them, and knew his situation as well, or better, than any one else.

The debt of $10,000, for the security of which the defendant took the mortgage, being for money collected by E. B. Harris, as his agent, and not paid over, must have rendered it certain to his mind that E. B. Harris was insolvent, as nothing but absolute inability to make payment; could have induced him to subject himself to a debt of that character, ancLthen spread the facts on record in the mortgage office. The mortgage has the effect of injuring the plaintiffs; because, being unable to satisfy their execution by other property, as proved by its return, they are unable to realize anything from this mortgaged property on account of the incumbrance.

The transaction comes, then, within the definition of fraud in such cases as given in article 3324 of the C. C. It means any unfair preference which the debtor may give to one of his creditors over the others, by selling or mortgaging to him a portion of his property, for a debt existing before the contract. And by article 1973 of the C. C., in addition to those already cited, the plaintiffs are entitled to have the mortgage annulled. The facts and reasoning as to the mortgage, apply equally to the sales and transfers of the stocks, the validity of which are contested by the plaintiffs. But with regard to them, there are other facts which it is necessary to notice. E. B. Harris -mortgaged his real property to the defendant and a bank, and disposed of some of his stocks in payment of bank debts. The whole of his remaining stocks, constituting everything he possessed, he sold to his brother. For, beside the sixty thousand dollars worth of stocks, the sales of which this suit is brought to annul, the defendant came into the possession of other stocks of nearly sixty thousand dollars in value, being the whole remaining assets of his brother. It is true, the sale of three hundred and ninety-two shares of Canal Bank stock was made to Messrs. Hill, McLean Sf Co. But Mr. Hill applied to the bank to which it was pledged in order to make arrangements to purchase it for the defendant. He offered to give the defendant’s note for the amount for which it was pledged, to which the bank objected. Mr. Hill then gave the note of his firm, and took the transfer in their name; but soon afterwards transferred it to the defendant, charging him only a commission for the transaction. This leaves no doubt that Mr. Hill purchased it with the intention of conveying it to the defendant, being his factor, and willing, as he testifies, to have lent his name, or to have advanced funds for his use to any amount.

Thus, E. B. Harris disposes of the whole of his property. He was a resident of New Orleans, and a purchaser of stocks. The sudden sale of the whole of those belonging to him, and disposition, at the same time, of all his other property, was out of the ordinary course of his business, or, indeed, of any business. So, on the other hand, the defendant, who purports to have purchased a hundred and eighteen thousand dollars worth of those stocks, was a capitalist residing in Virginia, where it is probable, equally safe and profitable investments could have been made, under his own eyos. He owns plantations and slaves in Louisiana and Arkansas, and lands in Tennessee and Mississippi. Real estate and slaves had been the objects to which he had directed his investments, and had never before purchased a dollar’s worth of stock in New Orleans. He suddenly invests one hundred and eighteen thousand dollars in our stocks. He not only invests surplus capital, but gives out his own notes for large amounts of the stocks, at one time, for $14,000, and afterwards for $20,000, for which they were pledged. He does not go into the market, through the agency of a broker, but buys the whole from his brother. His brother, the vendor, seems to be his real agent in buyingfor him, and Jacobs his nominal agent; for, by the testamony of the latter, he appears to have known but little about the transactions, except in their results. All these things are out of the ordinary course of business, as to vendee, as well as to vendor, and do not wear the aspect of real transactions. The sale of all his assets, by an insolvent to his brother, while suit is pending, or judgment unsatisfied, for the very debt which rendered him insolvent, throws the suspicion on the transactions, that they were prompted by the pervading motive to screen those stocks from the execution for this large debt.

Our laws declare the property of a debtor, the common pledge of his creditors, and that the proceeds of its sale must be distributed among them ratably, unless there existamong the creditors some lawful causes of preference. Art. 3150.

E. B. Harris being insolvent, it was his sacred duty to give effect to these principles of equity. Yet, it appears, that he mortgaged and otherwise disposed of the whole of his property, while the plaintiffs were prosecuting to judgment and by execution, their claim on his acceptances; the protest of which rendered him insolvent. This was inequitable, and a violation of an express provision of law.

The evidence induces us to believe that he did so, to put himself in a position to dictate the terms on which he would compromise with the plaintiffs, and compel them to receive a portion of what was duo to them, for ten cents on the dollar was talked of as a compromise. This motive and principle is repudiated by our laws and jurisprudence. Graves et al. v. Roy, 13 L. R. 457. The just principle of the Spanish law still prevails, that the debtor who sells the whole of his property, to the prejudice of a creditor, is presumed to do it maliciously, and with the intention to defraud. 5 Part. tit. 15, 1. 7.

The evidence leads us to conclude that the defendant knowingly aided in carrying out these unlawful intentions of his brother, by purchasing, knowing him to be insolvent, all his assets, out of which the plaintiffs could realise their debt. It is impossible to believe that he purchased thefee stocks, merely to speculate on the misfortunes of his brother. In fact his agent, Jacobs, whose knowledge is his, says as to one of the large purchases: “I wished to put John L. Harris into possession of all the rights of the bank, as I knew that E. B. Harris was in difficulties, and that suit had been, or was about-being brought against him.” Mr. Hill, who made a large purchase, evidently intended for the defendant, consulted his attorney, to know if it would be safe to make the purchase, notwithstanding the suit against Dr. Harris was going on. He, therefore, knew of the suit and took a precaution not usual in the purchase of stocks. So the defendant spoke to his factor, Hill, of selling the stocks to pay Dr. Haj-ns' debts, and said that if he made a great deal of money by the stocks, he might compromise with the Mobile people, and frée Dr. Harris from debt, but only in case he could make such an arrangement as would be satisfactory Jo himself; and, further, said that if Dr. Harris was ruined, he never should want.. Mr. Egerton, too, believes that Dr. Harris, in applying to him to rescind a sale of stocks made to him, in order to resell them to his brother, stated that-if the stocks should rise, he would have the benefit of the advance. This witness said,-of the manner of Dr. Harris, “many things are conveyed to the mind, by the manner of the party.” So, we are obliged to say, of this whole case, it conveys to the mind many things which are not apparent. We must exercise the discretion confided to us by the code, and look through the apparent, into the teal transactions of the parties, which are covered by but a thin veil.

We could not doubt the simulation of the transactions, even if the parties were strangers; the presumption is greatly increased by their relationship of brothers. And, in our opinion, it would have manifested true fraternal affection in the defendant, to have let the property of his brother go to his creditors, to whom it belonged, without making a profit out of-it to their prejudice, and thus not to have subjected his name to the suspicion of concealing it from their just pursuits, with a view to force them to an unjust compromise, by putting tire property beyond their reach; and, finally, the brother having applied the whole of his property towards the extinguishment of 'his obligations, to have extended to him the rich munificence of a wealthy brother.

These investigations, which have become deplorably common in our courts, are painful indeed; but it is our sacred duty to search the transactions, out of which they originate, to the bottom, and strike at the root of the .evil, by annulling them, as the only means of their prevention. Courts, mortgage offices and paper titles must not be used as the means of depriving men of their property, instead of securing their rights.

In conclusion, we have to say, that the real attitude of the parties seems to us to be this, that the sales were made with the intention, both on the part of the insolvent vendor and of the vendee, to place the-prOperty beyond the reach of the suing creditors, in order that they might thereby drive them to compromises advantageous to the vendor( and with the understanding that the ultimate profits upon the purchases, which were, in some cases at least, clearly below the mar-j^et prio0) should inure to the benefit of the vendor.

By article 1977 of the code it is provided, that if the party with whom the debtor contracted, be in fraud, as well as the debtor, he shall not, on the annulling of the contract, be entitled to a restitution of the price or consideration he may have paid, except for so much as he shall prove has inured to the benefit of the creditors, by adding to the amount of property applicable to the payment of their debts.

The judgment of the district court, so far as it annuls the mortgage given by E. B. Harris to John L. Harris before Jules Mossy, notary public, on the 6th of June, 1848, so far as the plaintiffs are concerned, is affirmed. The judgment, in other respects, is reversed, and it is decreed that the sales by E. B. Harris to John L. Harris, in the summer of 1848, of two hundred and ninety shares of the stock of the New Orleans Canal and Banking Company, also of three hundred and five shares of the stock of the Bank of Louisiana, and three hundred shares of the stock of the Mechanics and Traders’ Bank, be annulled, and subjected to the plaintiff’s execution, reserving to the defendant, or to the banks, the right to claim out of the proceeds of the sales, the amounts for which they were pledged on the days of the transfers to John L. Harris, who is condemned to pay the costs in both courts.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    James Beck & Co. v. Brady, Brown & Co.
    The law gives an attaching creditor the right of being paid, by preference, over other ordinary creditors, out of the .proceeds of the property attached, and this right cannot be defeated by a subsequent seizure on execution.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Benjamin and Micou, for plaintiffs.

      C. Maurian, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiffs issued an attachment against the property of the defendants, who are non-residents. Subsequently, other creditors issued attachments against the same property, obtained judgments and seized the property attached under executions, before the plaintiffs obtained judgment or issued execution.

The property having been sold by the sheriff, the plaintiffs took a rule on the other attaching and seizing creditors, to show cause why they should not be paid the amount of their judgment and execution, by priority, out of the proceeds of the sale, as the first attaching creditors.

The other creditors claim a privilege on the proceeds of the property sold, because they first seized it under execution, which, by the very terms of article 722 of the Code of Practice, gives them a privilege upon the property thus seized, which entitles them to a preference over the plaintiffs, who, they contend, are ordinary creditors, their attachment giving them no privilege.

Their counsel admits, that the general impression of the bench and bar has been, that the first attaching creditor is to be paid out of the property attached, before a creditor subsequently seizing the property under execution. The general impression existing for a length of time with regard to the effect of statutes, is generally correct. Communis error facit jus, may, at least, justify the position that the common interpretation of laws is right.

The counsel also admits, that a principle adverse to that which he maintains, prevails in those systems of law from which we have borrowed the writ of attachment. He should, therefore, justify his adverse position by express law, or a well settled course of decision.

But, on the contrary, the district court has examined, with great care, all the decisions of the Supreme Court on the question, which are numerous, and has reconciled them all as concurring in the principle, that the first attaching creditor cannot be deprived of the benefit of his attachment, merely by a subsequent seizure, under execution, without any other lawful cause of preference. The apparent, though not real, discrepancies in some of those decisions, arises from the different circumstances under which the cases were presented, and in consequence of the court, at different times, giving different reasons for substantially the same principle. The opinion, however, of this court, in the case of Tufts v. Carradine, 3d Ann. 430, and of the late Supreme Court, in the case of Emerson et al. v. Fox et al., 3 L. R. 183, are explicit on the question under consideration, against the pretensions of the appellants, and even if the question could still be considered an open one, would command our unqualified approbation.

Strictly speaking, as contended by the counsel of the appellants, an attachment gives no privilege upon the property attached, for it may be dissolved, the property, bonded or otherwise, relieved from the attachment.

The Code of Practice, however, gives the following effect to a writ of attachment: The sheriff must seize and detain so much of the debtor’s-property, as may be equal in value to the amount claimed in the suit. Art. 256. He must take charge and keep possession of all the goods and effects which he may have attached (art. 257); and the plaintiff may, after other proper steps, procede to obtain judgment, and, on execution of the same, have so much of the property attached sold, as will suffice to satisfy his judgment. Art, 265. The preceding article, 264, is equally explicit to the same effect.

Now, all his diligence in ascertaining and establishing the grounds for his attachment; in searching out and, as in this case, by an expensive suit, attended with some risk, subjecting property fraudulently covered from creditors by a fictitious sale; in going through a tedious and expensive suit to establish his claim and obtain judgment, would be nugatory, if another creditor, during the delay, might step in and take the property attached by an execution, and obtain payment by privilege, without any other cause of preference than the seizure. The law never intended such an absurdity. In this case, the plaintiffs, though they sued and attached first, would have to give up the property and go to New York to sue, after all their expense and trouble, which would inure to the benefit of those who sued and attached last, instead of subjecting the last to the necessity of seeking their claim abroad. The sense of right implanted in every bosom, would repudiate such injustice.

The true principle is this: that the creditor who is most diligent and uses the process of law to secure his rights, cannot be deprived of the beneficial effects of that process, by one less diligent in using it. One who has no better right at the time, that is no privilege, mortgage or lien, cannot subsequently acquire either, so as to defeat the process of law in his favor. He does not claim a privilege strictly so called, but that the beneficial effects of the process of law in his favor, should not be rendered nugatory by process subsequently issued in favor of another ordinary creditor ; or, which is the same thing, by a privilege subsequently acquired by mere process of law.

The principle may be illustrated by reference to another provision of our code. Payment to the prejudice of an attachment cannot be made. Now, the creditor by execution and seizure, acquires the rights of his debtor upon the property seized, and no more. But the debtor could not dispose oí the property for payment, to the prejudice of the attachment, and therefore his creditor cannot, by seizing and selling it, take the proceeds to the prejudice of the attachment.

It is strenuously contended, that the French text of article 724 of the Code of Practice, conflicts with our view of the effect of articles 264 and 265 of that code. If so, we would say with the late Chief Justice Martin, in the case of Emerson v. Fox et al.: “We cannot allow it to prevail in a manner that will contradict the evident and manifest intention of the Legislature, in these two articles, and enable the defendants to destroy the effect of the attachment.”

So, also, if the effect given to these articles conflicts, as contended, with the provision of the Civil Code, that causes of preference in payment cannot exist unless allowed by that code, we should consider that the articles of the Code of Practice should prevail over the Civil Code, because subsequently adopted.

The judgment of the district court is affirmed, with costs.


author: Rost, J.

text:
    Gustave Rivarde et al. v. A. Rousseau, Syndic.
    A member of a commercial firm bought real property in his own name, for which he paid in a note of his firm. He afterwards sold the lotto a third person. The other members of the firm brought suit against the syndic of the purchaser to recover their virile shares, upon the ground that the act of sale showed the property was paid for by the firm, and belonged to the firm jointly, and that it could not be legally sold by one of the partners. Held... That the recital in the act of sale was not sufficient notice to the purchaser to invalidate the sale.
    APPEAL from the Third District Court of New Orleans, Kennedy, J,

      Samner and Says, for plaintiffs.

      T. W. Collins, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The late Achille Rivarde purchased a house and lot from the firm of Samuel Smith Co., and gave in payment a mortgage note belonging to A. Rivarde Co., a firm composed of himself and the two plaintiffs; and, subsequently, sold the said property for cash to one Berniaud, who is now ah absconding debtor represented by the defendant, the syndic, appointed by his creditors.

The plaintiffs claim, each, one undivided third of the lot, on the ground that it was acquired with partnership funds; that Berniaud was aware of this fact when he purchased, and is subject to all the equities between them and his vendors. There was judgment in their favor, and the defendant appealed.

The only evidence adduced to show that Berniaud had notice that the lot had been acquired by partnership funds, is a reference in the act of sale from Rivarde to Berniaud, to the act of sale from Samuel Smith Co. to him, passed before another notary of this city, in which that fact appears. The district judge, relying on the authority of the case of Carian v. Rieffel, 2 N. S. 619, considered this sufficient to affect Berniaud with notice.

The two cases are by no means analogous. In the case of Rieffel, he was charged with the fraudulent concealment of a mortgage on a slave he had sold,, and the object of the suit was to rescind the sale. The court held, that as the act of sale to the defendant contained an express mention of the mortgage complained of, the reference to that act in the deed of sale between the parties, placed it fully within the knowledge of the plaintiff for the purpose of examination, and was inconsistent with the alleged intention of the defendant to conceal the existence of the mortgage. But in this case, the district, judge, has gone further and decided, not that the means afforded to obtain knowledge destroy any recourse against the vendor founded on concealment, as in Rieffel’s case, but, that the means to obtain knowledge, are equivalent to actual knowledge on the part of the purchaser.

Parties are presumed to be in good faith until the contrary* is shown, and to destroy that presumption, it is not sufficient to prove that the vendee had the means of acquiring knowledge of the defect in his title; it must further be shown, that he availed himself of them, and that in the present case, for instance, he followed up the reference in his title, by an examination of that of his vendor.

This case is, in all respects, similar to those of Fletcher et als. v. Cuvelier, 4 L. R. 274; and Moran's Heirs v. The Mayor et als., 5 L. R. 243.

It is therefore ordered, that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts.


text:
    F. B. Conrad, Assignee, v. City Bank of New Orleans.
    Where a bank had discounted a note for the maker, on a pledge of stock, and the maker subsequently took the benefit of the bankrupt law of the United States, the bank had the right to charge interest after the maturity of the note, without proof of protest, as demand under the circumstances would have been useless.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      M. M. Cohen, for plaintiff.

      L. Hunton, for defendant.
   The judgment of the court was pronounced by

Preston, J.

In 1842, Thomas Banks obtained a loan of $17,250 from the City Bank of New Orleans, for which he gave his note, payable in sixty days; and to secure the payment of the same, executed a pledge on three hundred and forty-five shares of the stock of the bank belonging to him.

The same year, Banks applied for the benefit of the bankrupt act of the United States, and made an assignment of his property for the benefit of his creditors.. The plaintiff was appointed his assignee, and in July, 1845, caused the stock to be sold. The bank became the purchaser, and paid the plaintiff the proceeds of the sale, deducting the amount of the note with six per cent interest, from its maturity, until the day of sale.

The plaintiff denies that any interest was due, because the note was not protested, and sues for the amount of interest deducted.

The declared bankruptcy of Banks, and assignment of all' his property for the benefit of his creditors, rendered it useless to demand payment from him ; and as the assignee had no means to pay the debt, except by tbe sale of the pledged stock, it was equally unavailable to make a demand from him ; and a protest of the note was unnecessary, as it was not endorsed. And yet, the creditor should not lose his interest, on account of the inability of the debtor, or his assignee, to pay the note at maturity, or the neglect of the latter to sell the stock. The inutiliry of demanding payment, afforded ample reason for dispensing with that vain form, without, losing any thing by so doing.

Now, it is to be considered that the very object of the creation of the bank was to obtain interest by the loans of money. Jn borrowing money from a corporation created for that purpose, the borrower must be considered as binding himself by an implied agreement, that if the principal was not paid at the term fixed, it should continue to bear interest until paid.

It is so important to a bank to realize its loans at maturity, that in some charters, greater interest is imposed as a penalty for the default of the debtor, as is the case in the charter of the Union Bank. For the same reason, by other charters, the banks may allow interest upon deposita, so as to bank upon other funds than their capital, the active use of both aiding their prosperity. From such considerations it is clearly inferred, that if money loaned by them at interest, is not paid at maturity, they expect interest until it is paid. So the borrower would not think of claiming a delay of payment bpyond the term agreed, without allowing the interest at the rate stipulated. And if, at the time of contracting the loan, there were a different understanding between the parties, it would lead to the necessity of rigorous, perhaps ruinous measures, to compel payment as soon as the money became due.

The failure to pay the loan, or to compel it at the term stipulated, may then equitably be cpnsidered a tacit renewal of the loan until the debtor pays, or the bank takes steps to enforce payment. And surely, the debtor should be the last to complain, as the failure is his fault, and it is even a favor to him not to spread it on the public records, at his expense, by a protest.

During all the delay in realizing payment by the. sale of the stocks, the bankrupt being unabie to pay, they were producing dividends, and appreciating in value. If the bank was well managed, and we have no evidence to the contrary,' and this for the benefit of the creditors, equity then imperatively demands that interest on the debt, during the same period, should be allowed to the bank.

The claim of the plaintiff is therefore inequitable, and we cannot say that any law or adjudged case requires its allowance.

The judgment of the district court is reversed, and judgment rendered for thff defendant, with costs in both courts.


author:
Rost, J. SniDEim, J.
     Rost, J.,

text:
    M. A. Fabre v. William T. Hepp.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Julien Seghers and L. Janin, for plaintiff.

      Lj Pierce, C, Koselius and Cr.
      Schmidt, for defendant.
   The opinion of the court (Eustis, C. J., absent, and Slidell, J., dissenting,) was pronounced by

Rost, J.

This Is an action of mortgage, in the case of the Bank of Louisiana v. Delery et al., 2d Ann. 648. The third opposition of the plaintiff in the present suit was dismissed, and he was left to his recourse in a direct action. We then held, that the probate sale made to affect a partition of the property, composing the community, which had existed between Sylvain Peyroux and the plaintiff’s mother, could not be set aside, unless the parties interested were made parties to the proceedings.

The plaintiff, subsequently, instituted an action of nullity against Sylvain Peyroux and his minor children, and obtained a judgment annulling three decrees of the court of probates, to wit: 1st. The decree appointing Sylvain Peyroux, as tutor of the plaintiff. 2d. The decree ordering the sale of the community property. 3dly. The decree homologating the account filed by Sylvain Peyroux, as tutor of the plaintiff, on the 1st April, 1846. The same judgment adjudged the defendant, Peyroux, to pay the plaintiff $24,539 04¿, with legal interest and mortgage.

This judgment is not conclusive upon the defendant, who being a party in interest, had no notice of the proceedings, and no opportunity to defend his rights. The plaintiff, taking this view of the law, has supported his judgment of revocation, by introducing in this suit the evidence upon which it was obtained; and we concur with the district judge, that he has satisfactorily proved the reality and amount of his claim, and that the appointment of Peyroux, as his tutor, and Castilloro, as his under-tutor, and al.l the family meetings held for his benefit, were null and void; but it does not follow, that the probate sale is also null and void for the same reasons. The plaintiff shows, for the first time in this suit, that he has renounced the community; he can, therefore, exercise no right as joint owner of a portion of it; he bases his action, exclusively, upon the ground that he is a mortgage creditor, and the nullities alleged, are not such as can avail creditors. As we said in the former case, they can be taken advantage of by the heir alone, in his capacity of heir, and may be cured by his ratification, expressed or implied, after he becomes of age. We consider that the renunciation of the plaintiff to the community, after he became of age, rendered the judicial sale of the community property valid. The renunciation of a community by the heir of the wife, has, like that of a succession, a retrospective effect; the heir of the wife who renounces the community, is considered as never having had any interest in it, and his portion belongs to the surviving partner in community, by force of his original title, jure non decrescendi. Pothier, traité de la Communauté, No. 568, 572, 578. Delvancourt, Leo. 4, tit. 1. Des contrát du marriage, sec. 5. Des suites de la dissolution dula communauté, p. 1. Note 2, page 28, (page 46, notes.)

The plaintiff never having had any right in the community, the surviving partner in his own right, and also as recipient of the share renounced, and as tutor of his minor children, had capacity to administer and sell the property of the community, so long as creditors did not object. See the case of Bryan v. Atchison, 2d Ann. 463.

This sale, however, has been annulled as fraudulent, contradictorily with Sylvain Peyroux; the judgment annulling it, has not been appealed from, and is conclusive against him, and all parties to the fraud it perpetrated. The participation of McCarthy find Barrett, and their combination with Sylvain Peyroux, to defraud the plaintiff and Peyroux's own children, are clearly shown; but there is not in the record sufficient evidence to impeach the good faith of Delery, so far as the slave, in controversy, is concerned. It has been urged, in argument, that after the sale to him by Barrett, this slave, and all the other property conveyed, remained in the possession of Peyroux ; that fact was susceptible of direct proof, and should not have been suffered to rest on remote inferences. The defendant, under his purchase from the bank, has required Delery's title, cannot be affected by the frauds of the purchasers at probate sale, and of the party to whom they sold. The only question, therefore, which the case presents, is, whether the legal mortgage existing in favor of the plaintiff on the community property, was entirely extinguished by the probate sale.

In the case of Sarapure v. Debuys, 6 N. S. 19, it was held, that a succession sale of the property of the husband, by virtue of an order of the court of probates, extinguishes all mortgages in favor of his heirs. But that a sale of the ' property of the surviving wife, made under the same order, does not produce that effect. In the case of Goice v. Poydras, 6 L. R. 283, it was decided that all mortgages created by the deceased, on his own property, were extinguished by a sale made under an order of the court of probates. We are not aware that the rule has ever been carried further, and, in a late case, we recognized the analogous principle, that where common property was sold to effect a partition, and purchased by a party having previously no interest in it, the legal mortgage existing upon it against one of the joint owners, continued in force.

The probate sale, in this case, was made in the succession of Mrs. Peyroux, and so far as the property sold was hers, there is no doubt that the mortgage existing in favor of the plaintiff was extinguished, but Sylvian Peyroux owned one-half of the property in his own right, and after the renunciation of the ' plaintiff to the community, he must be considered as the owner of one-sixth of the other half from the death óf his wife. Those seven-twelfths formed no part of the succession, and if the plaintiff had a legal mortgage on the property of Sylvain Peyroux, under the authority of the case of Sarapure v. Debuys, the sale of Peyroux's share of the community, under the. order of the court of probates, left it in full force.

Had the plaintiff a legal mortgage on the property of Sylvain Peyroux, and, if so, from what date?

It is true, that by marrying the plaintiff’s mother, he became the co-tutor of the minor in 1828, but as the tutrix was authorized by the judge, on the advice of a family meeting, to retain the tutorship, no mortgage attached on his property ; he became bound, in solido with his wife, for her faithful administration during the marriage, but the obligation was purely personal. 1 Delvan* court, notes to page 107.

In September, 1841, Peyroux caused himself to be appointed dative tutor of the plaintiff; on the 16th of that month, he took the oath and entered upon the discharge of the duties of tutor. It has been shown, that this appointment was illegal, and that he never gave bond; but this cannot prevent the legal mortgage in favor of the plaintiff from taking effect. ' Whether Peyroux was tutor, or acted as such without authority, the rule is the same. The mortgage took effect on the 16th of September, 1841, at latest, and is to continue to the settlement of the final account of the tutor. Civil Code, 3282, 3283. 2 Troplong Hyp., No. 428.

The entire amount claimed by the plaintiff, came to the possession of his mother after her second marriage. Peyroux was therefore bound, in solido with her, to account for it, being the debtor of the plaintiff at the time he commenced to act as his tutor; a legal mortgage attached to his property for the amount due.

It is urged, that the receipt of Peyroux to Canterelle, dated the 16th May, 1842, for $20,000, inherited by the plaintiff from his grand-mother, should have been excluded, on the ground that it is res inter alios acia, and further, because it was executed after the judicial sale of the property, under which judicial sale, and by mesne conveyances, the defendant claims title.

The grand-mother of the plaintiff died in 1839 ; the account of the administration of her succession, fixing the share of the plaintiff at the sum of $20,000, was homologated on the 11th of November of that year. This was during the lifetime of Mrs. Peyroux; the receipt given after her death ly Peyroux, was admissible to prove, that the amount, shown by other evidence to be due to the plaintiff, had been received, and as the mortgage against Peyroux takes date from the time he commenced to act as tutor, if not from the day of his appointment, the date of the receipt is not material; the presumption is, that the money was received long before it was given.

It is urged, that Peyroux, acting as tutor, has released the mortgage given by McCarthy, the purchaser at probate sale, and that, as to third persons, the release is valid, though the money was not paid. Kemp, tutrix, v. Rocoley et al., 2d Ann. 316.

Conceding that Peyroux might have raised that mortgage, so far as the succession of his wife was concerned, it is hardly necessary to say, that he could not then defeat a legal mortgage created, after the death of his wife, against himself individually, and that the plea that he has done so, is totally inadmissible as a defence. It is not shown, however, that he has attempted to raise that mortgage.

We are of opinion that the plaintiff has a mortgage on seven-twelfths of the property in controversy.

It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that seven-twelfths of the slave Crawford be seized and sold under the plaintiff’s mortgage, and that the proceeds of the sale, after deducting costs, be paid over to the plaintiff and credited on his judgment against Sylvain Peyroux. It is further ordered, that between the defendant and the warrantors, the case be remanded to await the sale of the slave under this decree, and then for further proceedings according to law; the costs of this portion of the appeal to be paid by the warrantors.

Same Case — On a Re-hearing.

Where the surviving husband by a second marriage, under an order of court in pursuance of a family meeting, sells the community property, which, by subsequent conveyances, gets into the hands of an innocent purchaser, the property thus sold will be freed from the mortgage in favor of the minor by the first marriage of the deceased, of which the husband was co-tutor, although the order of sale was illegally granted, and was subsequently annulled at the suit of the minor; the cause of nullity being relative merely.

THE judgment of the court was pronounced by

SniDEim, J.

The question in this cause is, whether Fabre has a right of legal-mortgage upon a slave owned and possessed by the defendant.

The facts material to this inquiry are the following: The plaintiff’s mother married Sylvain Peyroux. This slave formed part of the community of acquets and gains which existed between Peyroux and his wife. She died, leaving children, issue of her marriage with Peyroux. He was confirmed by the Court of Probates of St. Bernard, the domicil of the plaintiff -and of Peyroux, and the place where her succession was opened, as natural tutor of those children, and was also, upon the advice of a family meeting, appointed dative tutor of the plaintiff, who was then a minor, and continued to live in that parish until the year 1843, when he went to France. He became of age sometime in 1843 or 1844. An inventory of the community property of Peyroux and wife was made, and, in 1841, Peyroux, as tutor of his children, and dative tutor of Fabre, presented a petition to the court of probates of said parish of St. Bernard, praying an order for a family meeting to deliberate on the propriety of selling their interest in the community property. The family meeting declared that, in their opinions, a partition in kind could not be made without great injury to the minors, and that-a partition, by sale at auction, would be advantageous to them, and they recommended that the share of the minors be sold on certain designated terms of credit. Peyroux then, in his capacity of tutor and dative tutor, presented the deliberations of the family meeting to the Court of Probates of St. Bernard, and represented in his petition, that it was for their interest that their property should be all sold, and he accordingly prayed for such order of sale as might be proper, in order that the sale might be effected according to the advice of the family meeting. Upon this petition the court made a decree, -ordering, not that the mere interest of. the minors be sold, but the entire property. The wox-ds of the decree ax-e: Let the delibex-ations of the family meeting be appi-oved and homologated, and let the property belonging to the community heretofore existing between the petitioner and Rose Aglae Canlerelle, his disceased wife, be sold. In pursuance of this decree, the entire community property, and not-the mere interest of the minors, was sold at public auction in 1841, by the same parish judge who made the decree, he acting in his capacity of auctioneer ex officio. The entire property of the slave in question was adjudicated, with other community property, to McCarthy. McCarthy afterwards sold the slave to Barrett; Barrett sold to Belery. ' The mortgage notes for the price given by Belery were discounted by the Bank of Louisiana. The bank subsequently caused the slave to be seized and sold under the mox'tgage, became itself the purchaser at sheriff’s sale, and then sold to Hepp, the defendant. Whatever fraud and collusion may have existed between Peyroux, Barrett, or other antecedent parties, the good faith of the bank and of Hepp is unquestioned.

Thus, it appears, that the same judgment which authorized the sale of the interest of Mrs. Peyroux’s succession in the community px-opex-ty, contemplated and authorized the simultaneous sale of Peyroux’s interest. The whole was ordered to be sold, and was sold undivided. That decree was made by a court which had jux-isdiction over the pex-son and estate of the minor Fabre, at the instance of the dative tutor of the minor. It is manifestly inconsistent with that decree, that the minor’s mortgage, supposing it had then attached on Peyroux’s share, should continue after the sale on any poi-tion of the community property. To .permit it so to continue, would be to pei’mit the deci-ee of the court to be a snare to the public.

Then the interest of Peyroux, as well as that of the succession of Mrs. Peyroux, having been sold in mass, in pursuance of a decree, which necessarily released the legal mortgage; and that decree having been rendered by a court clothed with jurisdiction over the person and rights of the minor, third persons holding in good faith, under that decree, are protected by it. Now the bank and the purchaser stand in that attitude ; and even if the original purchaser, McCarthy, and some of the other parties to the intermediate conveyances were colluded with Peyroux, and would, therefore, have been subject to an equity in favor of the minor, yet that equity being secret, could not affect either the bank or the defendant, who holds under the bank.

So as to the objections to the appointment of Peyroux, as dative tutor of the minor, on the ground that the minor children of Peyroux, whom he represented as their natural tutor, and Peyroux, himself, as debtor of the petitioner, had interests adverse to the plaintiff; as these were, at most, relative nullities, and the appointment was not absolutely void, third persons are not thereby affected.

This case seems properly to come under the doctrines enunciated in Lallanes' Heirs v. Moreau, 13 L. R. 436. Bach v. Abbott, 6th Ann. 809. Stockton v. Craddick, 4th Ann. 282. Pike v. Monget, 4th Ann. 227.

The above are the considerations which induced me to dissent from the opinion hitherto given by the majority of the court in this case

I think the judgment of the district court should be affirmed.

It is therefore now decreed, that the judgment heretofore rendered .in this cause by this court, on the 6th June, 1850, be set aside, and that the judgment of the district court be affirmed; the appellant to pay the costs of the appeal.

Eustis, C. J. and Preston, J., concurring.

Rost, J.,

dissenting. I adhere to the opinion first delivered in this case. I do not understand how the order of the judge to sell the interest of Peyroux in the slave, with that of his late wife, on his application as tutor, can bring his share under rules exclusively applicable to succession property; or how the decree and sale, under it, were inconsistent with the mortgage of the plaintiff, and necessarily raised it. If it did, then all decrees in actions of partition and sales under them, also necessarily raise the mortgages existing against any of the joint owners.

The fears entertained of the consequences which would flow from ihe enforcement of such a mortgage, are, in my opinion, imaginary. Tho question, under consideration, first came before the Supreme Court in 1827, in the case of Sarapure v. Debuys, 6 N. S. 19. It was then, for the first time, held, that a sale of property made by virtue of an order of the court of probates, extinguishes all mortgages in favor of the heirs of the deceased, whose property is thus sold; but that a sale, by virtue of such order, of the property of a person living, produces no such effect. A quarter of a century elapsed before this exception to the rule was again invoked, and there is no reason to believe that it will be so more frequently hereafter. The principle of the decision Use,If, did not receive, at the time, the assent of the bar, and has been acquiesced in, mainly on the ground of expediency. I am unwilling to overrule the exception in that case, and to extend the principle of the decision to the property of persons living at the time of the sale.


author: SiiiDsu,, J.

text:
    Thomas Hassam v. St. Louis Perpetual Insurance Co.
    WKere goods are sold by the captain, in order to obtain lands for repairing particular average losses, or for defraying the ordinary expenses of navigation, the loss arising from their sale must be made good by the ship-owner alone. Where, on the other hand, they are sold for the purpose of defraying expenses or repairing losses, which are themselves of the nature of general average, the loss arising from their sale, gives a claim to general average contribution.
    APPEAL from .the Third District Court of New Orleans, Kennedy, J.

      C. Roselius and John Claiborne, for plaintiff.

      Hunton and Bradford, for defendants.
   The judgment of the court (Preston, J., absent,) was pronounced by

SiiiDsu,, J.

This case was submitted in the court below, upon the following agreed statement of facts :

“ The brig Hardy sailed from New Orleans on or about the 1st October, 1849, on a voyage.,to San Francisco; her cargo consisting principally of lumber and merchandise. Insurances on the freight and cargo of the vessel were effected in the various offices; that, with the defendants, being $10,666 on freight, and $5,000 on cargo, making a total on both risks of $15,666. While prosecuting her voyage, and when about latitude 38° 42’ south, and longitude 50° 17’ west, the vessel encountered such tempestuous weather, and was thereby so disabled, that it was found necessary to bear away for the nearest accessible port for repairs. On the first day of February, 1850, the ship was accordingly put away for Montevideo, where she arrived on the 10th day of that month. Upon surveys and examinations, it was found that she was much strained in her seams, leaking badly, and her rudder post twisted, so as to render re-caulking necessary ; and also, a new rudder, in order to make the vessel fit to proceed on her voyage. In order to pay for the repairs and necessary expenses of the ship during her stay at the port of distress, and after having unsuccessfully attempted to raise funds by draft upon bottomry bond upon the owners, the captain was forced to sell a portion of the cargo. The value of the cargo so sold, estimated at the San Francisco prices, was $7,950; from which, deducting necessary and usual charges, there remained (Montevideo currency) $6,342 84, the value at Montevideo.

“It is admitted, that the vessel could not have completed her voyage without the repairs; that the cargo would have been almost sacrificed by a sale at Montevideo ; that no means of transhipping the cargo to its port of destination presented themselves, and that it was impossible for the master to raise the necessary amount for expenses and repairs, in any other manner than by the forced sale of a portion of the cargo.

“ The vessel, freight and cargo were the property of H. J5T. Raymond, agent, 8-38; Joseph Curtis, agent, 8-38; Thomas Hassam, 6-38; Wm. H. Simmons, 4-38 ; John Meggett, 4-38; Thomas M. Meggett, 4-38 ; W. C. Auld, 2-38 ; J. Guard, 2-38.

“ The premium note for $647 59, is admitted tobe yet due defendants on account of the policy, with the interest thereon.

“ Two adjustments of average have been made by adjusters, at the request of the parties; that marked ‘A,’ made by R. Brenan, representing the views ofthe plaintiffs, and that marked ‘B,’ made by A. Brother, those of the defendants* Both are submitted herewith to the court.

“ It is well understood that the real plaintiffs in this suit, and for whose use it is prosecuted, were the owners not only of the ship, but the cargo and freight.”

By reference to the adjustments above referred to, it further appears that the money produced by the sale of the goods at Montevideo, was ¡§¡1607 16 cents* exhibiting a loss on the goods by the forced sale of upwards of $6,000; that this money was disbursed, partly for purposes, which the defendants admit come under general average, to wit, port charges, pilotage, discharging cargo, provisions and wages of crew during deviation, re-loading, surveys, protests, &c.; and partly in paying the bills for repairs of the vessel, and partly for purposes of the owners of the vessel. The vessel was uninsured.

It is contended by the plaintiffs, that the whole amount of the loss sustained by the- sale of the goods, should be brought into general average; while the defendants 3ay that the measure of liability, by way of general average, is such proportion of that loss as the general average charges bear to the whole amount disbursed; The latter theory prevailed in the court below.

We have looked with some care into the decided cases and the treatises on the subject of general average, a branch of the commercial law, which is unhappily perplexed by discordant rules and subtle distinctions. The result of our examination is, that the rule of apportionment claimed by the defendants is the correct one.

It would seem, according to Emerigon, that under the Roman law, from-whieh the modern doctrine of general average is derived, if a ship found herself incapacitated, by vis major, to continue her navigation, and put into a port in order to effect repairs, neither the expenses of the repairs nor of the stay entered into general average. It may be questioned whether the case, cited in the Digest, sustains his assertion, as to the expenses of the stay; but it is cloar to the point, that the costofthe repairs was not so chargeable. See Meredith’s Enierigon, 4, 81.

But even if the ancient doctrine was, as stated by Emerigon, it has been in modern times enlarged'; and, although there is much variance in the custom of commercial nations and the views of legislators and jurists, yet most of them harmonize to this extent, that they allow some portion of the expenses thus incurred, upon the ground'that putting into port, in order to repair, is a measure voluntarily taken for the general preservation.

In England and the United States, it is fully settled, by numerous decisions5 that where it becomes necessary to enter an intermediate port, Because the vessel, in consequence of a particular damage sustained, is unfit to prosecute her voyage; as when masts, sails, or other requisite apparel are lost in a storm, or the vessel has sprung a dangerous leak, the expenses of entering the port are a subject of general average, being considered as the consequence of a measure voluntarily taken for the preservation of the whole. In carrying out this doctrine, however, into practical details, the American and English decisions are in some respects conflicting, as in the case of wages and provisions of the crew during the- delay for the purpose of repairs, which, in England, follow the-expenses of the repairs themselves, while in the principal commercial States of this Union, they are allowed- as general-average.-

But with regard to the expenses of the repairs themselves, the case is different. These are not, like the expenses of putting into the port of distress, the consequences of an extraordinary step taken for the general benefit. They are the consequences, not of the putting in to' refit, but of the injury which the ship has sustained by the violence of the winds and waves, which loss her owners are themselves to bear, and not the owners of the cargo. The cost of such repairs is a charge imposed upon the ship by the contract of affreightment, whereby the captain and owners are bound to maintain her in a fit state for transporting the cargo to its place of destination. Of this duty the shipper has a right to demand the fulfillment, without contributing to the expense. Nor is it any answer to say that the repair of the ship is for the advantage of the shipper, because it tends to-forward the voyage. It must also be remembered, that while the duty of repairing is incumbent upon the ship-owner, by virtue of the contract of affreightment, he has, on the other hand, the benefit of the merchant’s obligation to wait area^sonable time for the repairs at the intermediate port, or pay full freight. It is not, therefore, without reason that Mr. Stevens, in treating of the repairs done to a ship in a foreign port where she puts in in distress, in order to enable her to complete her voyage, expresses his surprise that any discussion should have taken place on the subject of their exclusion from general average, or that their could ever have been any doubt that the owner of the ship was bound to keep his ship in repair. The idea, he observes, could only have originated in the supposition that what was eventually for the general good; that is, in this case, the arrival of the ship with her cargo, should be borne by a general contribution. See Stevens on Average, p. 42; Benecke on Indemnity, p. 193 ; Arnouid, vol. 2, p. 906, 907 ; Padelford v. Boardman, 4 Mass. 551.

Of course, in these remarks, we are limiting ourselves to the case where the damage to the ¿hip was incurred by the violence of the winds and waves; for it seems to be generally recognized, and to be consistent with reason and principle, that if a vessel necessarily goes into an intermediate port, in consequence of an injury, which is itself the subject of general average, as, for example, masts cut away; such repairs, as are necessary to repair that injury, are to be considered as general average.

Having thus considered the general doctrine, touching the expenses of going into port of distress and the expenses of the repairs, it is necessary now to consider the consequences of a sale of goods effected at the port of distress, in order to defray such expenses.

It is an indisputable doctrine in commercial law, that in cases of absolute necessity, when the master, being in a foreign port, has no other means whatsoever of raising money to defray indispensable expenses incurred for the necessities of the ship, he may sell part of the cargo for the purpose of procuring funds. The right has been correctly said to be sanctioned by the earliest and most recent codes of maritime law, and by the jurisprudence of our own country.

When a loss is incurred by a sale thus made, that is to say, when the goods have been sold below the rate which, making the usual allowances, they would have produced at the port of destination, on whom is this loss to fall ?

In order that this question may be answered consistently with the principles already stated, it seems to us indispensable to consider the respective purposes for which the funds thus raised were necessary. And when that is ascertained, the equitable and true rule seems to us to be, that so much of the expense of raising the funds, namely, in this case the loss upon the goods sold, as is proportionate to the sum actually necessary for those purposes which were proper subjects of general average, should be admitted in the account of general average; and that, on the other hand, so much of that expense, or loss, as is proportionate to the* sums necessary for purposes of particular average, should be borne by the particular interest. ‘It is a gross abuse,’ says Mr. Benecke, ‘when, as is sometimes done, the ° , , , , whole charges for obtainingfunds, such as marine interest, &c., are passed to the general average account, although a part of those funds have been employed for a particular average on the vessel, or for the restitution of other partial damages. This also applies to commissions of agents and attorneys, surveyor’s fees, brokerage, postage and other similar charges. So much,’ he observes, ‘ of the charge of procuring funds, as corresponds with the sum actually employed for the purposes of general average, and no more can be admitted.’ Benecke on the Principles of Indemnity, p. 244, London edit, of 1824.

In a subsequent chapter of the same work, wherein he treats particularly of money raised abroad for the purposes of the voyage, and its relation to average, he remarks : ‘ If the sale of goods be effected for reasons which constitute a general average, it cannot be doubted that a general contribution must take place, whether the ship and cargo reach their destination or be lost. If the cause of sale be a mixed one, that part will be made good by general average contribution, which was applied to disbursements of that kind, and the owners will be personally liable for the remainder.’ Ibid. p. 273.

Mr. Arnould, in his admirable Treatise on the Law of Marine Insurance, adopting the views of Mr. Benecke, states, thatin his opinion, the law of England on this subject is, that where goods are sold by the captain, in order to obtain funds for repairing particular average losses, or for defraying the ordinary expenses of the navigation, the loss arising from their sale must be made good by the ship-owner alone, who must, in such case, pay the merchant the price which the goods would have fetched at their place of destination, deducting therefrom the freight which would have been due for their conveyance. Where, on the other hand, they are sold for the purpose of defraying expenses or repairing losses, which are themselves of the nature of general average, the loss arising from their sale gives a claim to general average contribution." Arnould, 2, p. 893.

It is true, Mr. Kent, in treating of the subject of general average, remarks: ‘ If part of the cargo be sold for the necessities of the ship, it is in the nature of a compulsive loan for the benefit of all concerned, and bears a resemblance to the case of Jettison; and if the ship be afterwards lost, the goods saved must contribute towards the loss of the goods sold, equally as if they had been thrown overboard to lighten the vessel. In such a case, a portion of the cargo, according to Lord Stowell, is abraded for the general benefit.’ Kent. vol. 3, p. 241.

In this general enunciation, that eminent author does not designate the nature of the necessities, to meet which, the sale effected will draw with it as a consequence the right of a contribution from goods saved; and, moreover, he supposes the subsequent loss of the vessel.

In view of the qualified terms, in which Mr. Kent speaks of the right of contribution in the case of goods sold, it would be dangerous to carry the doctrine thus enunciated beyond the case put by that author; and this restricted interpretation of it seems the more proper, when we recur to the authorities which he cites in support of his opinion, and upon which, we may reasonably infer, it was based. These authorities, as will be seen by the note to the passage in question, are, Hall’s Emerigon on Maritime Loans, p. 94 ; and the case of the Gratitudine, 3 R. R, 364, upon which celebrated case, great stress was laid by the plaintiff’s counsel.

In Evnerigon’s work, loco citato, it is said: “ It is a question whether the goods saved ought to contribute to the payment of those which have been previously sold. I believe that they must; and I derive my opinion from the rulé which is established respecting goods thrown overboard to lighten the vessel, of which I have spoken in my Treatise on Assurance. For it is immaterial whether the goods be cast away or sold for the common benefit. I admit, that if the ship arrives in port, the owners are obliged to pay the value of the goods sold in the course of the voyage for the necessities of the ship, without power, excepting the case of right to institute the action of gross average. But if thg vessel be lost, and part of the cargo be saved, the action of gross average is the only means of establishing an equality among the freighters, and regulating the contributions. of the parties respectively.”

In the case of the Gratitudine, the counsel for the petitioners, the lenders on bottomry and hypothecation of ship, freight and cargo, admitted in argument, that the cargo could not be called upon to pay what was expended in repairs of the vessel, until the proceeds of ship and freight were exhausted, and they quote the opinion of Emerigon : “ Si au lieu de prende des derniers á la grosse, le capitaine avait vendu pour cause legitime, une partie des marchandises du bord, et que au retour du voyage le navire et le fret (aggravés par des engagements posterieurs et par les salaires de l’équipage) fussent insuffisans pour rembourser le prix des dites marchandises, cette partie devrait étre supportée au sol la livre par les autres marchandises.” And again: “ Celui dont les effets sont vendus, pendant le voyage, pour les nécessites de la navigation, n’a pu ni s’y opposer ni se procurer aucune ressource particuliére contre ia personne du capitaine. II es done juste qu'en cas d'insuffisance du navire et du fret abandonnés par les proprélaires, la perte soit réglée sur l’universalité des chargeurs dont la condition doit étre égale.”

In his celebrated opinion in that case, Sir William Scott clearly intimates a recognition of that doctrine, for he lays stress on the fact, that the master had, at the time of hypothecation, when he compulsorily assented to the exaction of the security of the ship, freight and 'cargo, by the lender, reasonable ground to hope that the ship and freight, and average expenses falling particularly on the lading, would have been sufficient to discharge the bond, without calling on the cargo; and he also lays stress on the fact, that the bond having been put in suit, and the ship sold, her proceeds were insufficient to discharge the bond. The prayer of the petitioners was for a monition against the bail given to answer the action in respect to the cargo and freight, for payment of the balance due, after payment of the proceeds of the sale of the ship.

Thus it appears, at most, from these authorities, that the primary obligation to meet the loss of goods necessarily sold for the purpose of paying for repairs, rests upon the ship, and resort, by contribution, is not to be had to the owners of cargo saved, unless the ship be lost, or the proceeds of the sale be first exhausted, so that such relief is indispensable to put the owner of the goods sold on an equal footing with the other shippers. See, also, Pope v. Nickerson, 3 Story’s Rep. p. 500.

It is obvious, that the present case does not fall within the doctrine enunciated by Mr. Kent. For here the vessel arrived at her port of destination safe, and unincumbered by subsequent engagements.

It was argued on the part of the plaintiffs, that although the general rule is, that the owner must keep the vessel in a seaworthy condition at his own charge, the present case should be considered an exception, because the repairs, which ought, say they, to be considered as only benefiting the ship to the amount of the sum paid for them at Montevideo, really cost three or four times that amount, hy reason of the loss incurred in the sale of the goods to raise the money. The whole loss on the goods, they contend, should be considered as incurred for the benefit of all the interests, according to the doctrine announced by Lord Ellenborough, in Plummer v. Wildman, in which case he said: “If the return to the port was necessary to the general safety of the whole concern, it seems that the expenses unavoidably incurred by such necessity, may be considered as the subject of general average. It is not so much a question whether the first cause of the damage was owing to this or to that accident, to tho violence of the elements, or the collision of another ship, as whether the effect produced was such as to incapacitate the ship, without endangering the whole concern, from further prosecuting the voyage, unless she returned to port and removed the impediment. As far as removing the incapacity is concerned, all are equally benefited by it, and, therefore, it seems reasonable, that all should contribute towards the expenses of it; but if any benefit, ultra the mere removal of this incapacity, should have accrued to the ship by the repairs done, inasmuch as that will redound to the particular benefit of the ship-owner only, it will not come under the head of general average; but that will be a matter of calculation upon the adjustment. The amount of the expenses of repairing to be placed to the account of general contribution, must be strictly confined to the necessity of the case, and the arbitrator will have to determine how much was expended upon such repairs as were absolutely necessary to the enabling the ship, with her cargo, to prosecute the voyage, and for so much, and no more, the defendant will be liable to contribute. As lor the charge for the captain’s expenses during the unloading, repairing and re-loading, the ship-owner must bear the captain’s expenses in port, and primage must be disallowed; it does not come under general average.” 3 Maulé & Selwyn, 487.

The plaintiff’s counsel also refer to what is said by Mr. Kent, in his chapter on general average: “If the expense of the repairs would not have been incurred but for the benefit of the cargo, and might have been deferred with safety to the ship to a less costly port, such extra expense is general average.”

It may well be questioned whether the expensiveness of the repairs has any control over the question of general average. Mr. Benecke, to whom Mr. Kent himself refers for a more minute detail of the principles applicable to general average (3 Kent, 242), and whose treatise he commends for its great research, clear analysis and accurate application of principles, declares expressly that the expenses of repairing damage accidentally sustained by the vessel, must fall upon the owners, however they may exceed what the same repairs might have cost in another port (p. 194). Moreover, although the repairs in the pres.ent case were quite expensive, by reason of the loss incurred in raising money to pay for them, it is clear they could not have been deferred, with safety to the ship, to another port. The vessel could not have completed her voyage -without the repairs; nor can we say that the expense of the repairs would not have been incurred, but for the benefit of the cargo. Without the repairs, the ship was unnavigable; but in her sound condition, after repairs, her value was $7,0U0, which is much more than their cost. So that, in point of fact, as we infer from the evidence, it was the interest of the owners to spend what was virtually spent in repairing her, with reference merely to the ship herself.

As to the case of Plummer v. Wildman, we are unable to assent to the doctrine of Lord Ellenborough, touching the expense of repairs. It is very difficult to reconcile his remarks in that case, with what he said in the subsequent case of Power v. Whitmore, 4 Maule & Selwyn, 144. Mr. Arnould and Mr.

Benecke, both disapprove tho doctrine announced in the former case, and consider it as overruled by Power v. Whitmore. Benecke, 197. 2 Arnould, 908.

It was expressly adjudged in Power v. Whitmore, that the repairs of the ship, which had been compelled, for the safety of the ship and cargo, to put into a port in order to repair a damage occasioned by a tempest, were not a subject of general average.

Mr. Phillips also very distinctly intimates his dissatisfaction with the doctrine in Plummer v. Wildman, and with a case in Massachusetts (7 Pickering, 268), which was decided according to what was considered to be the ruling in that case.

After the fullest consideration which we have been-able to give to this cause, and to the very interesting and important branch of commercial law which it .involves, we are unable to see how, consistently with those general principles •which regulate the contract of affreightment and the subject of general average, the expense of these repairs, which were rendered necessary by particular _average loss, and which were indispensable for the ship's own safety, and to render her seaworthy in the further prosecution of the voyage which she had undertaken to perform, can ,give a claim to general .average.

It appears to us, that the reasons stated by one of the adjusters, are not sufficient to exclude entirely any charge for commission for collecting and settling the general charges. It would seem reasonable, however, that they should not be as high as in ordinary cases, where the owners of ship and cargo are different, for the amount of trouble incurred is not the same. There is no evidence of the usage on the subject in a case like the present; the am.ount involved is small, and as the parties have not furnished the necessaiy evidence to enable U3 to close the matter, we do not think the judgment should be opened on that account, which would throw the costs on the appellees, and also involve the expense of a new trial.

It is therefore ordered, adjudged and decreed, that the judgment of the coui;S .below be affirmed ; the cost of the appeal to be paid by the appellants.

       In Pope v. Nickerson, Mr. Justice Story says: “ Tliat where goods are sold in a port of distress to pay for repairs, it is a loan which the maritime law allows the master to make on account of the owners, as resulting from their implied authority, and with their consent.” So it was treated in the case of the Gratitudine, 3 R. R. 210; and in the case of the Packet, 3 Mason, 255. Then, it being a careful application of the funds of the shipper, without his consent, for the use and benefit of the owners of the ship, and by their authority and consent, it seems to me that the case is governed by exactly the same principles as if the money had been borrowed of a third person, and applied to the same purposes, that is, it would have hound the master personally, and the owners personally, and have also created a lien on the ship in rerii.


text:
    John Hohl v. J. F. Meyer.
    Where the appellant abandons his appeal, the appellee may bring up the record and have the judgment affirmed, with damages.
    APPEAL from the First District Court of New Orleans, Larue, J.

      B. Beauregard and J. A. Nautré, for appellant.
    P. C. Labatt, for appellee.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Rost, J.

Judgment having been rendered against the defendant in this case, for a sum of money, he took a suspensive appeal, which he failed to prosecute. The appellee has brought up the record, for the purpose of claiming damages as for a frivolous appeal.

Had the appellant prosecuted his appeal, the evidence of his indebtedness is not of such a character as would have authorized the allowance of damages. But as he has abandoned it, and thereby admitted the correctness of the judgment ; the prayer of the appellee must be granted.

It is therefore ordered, that the judgment in this case be affirmed, with costs, and ten dollars damages.


text:
    John Gauche v. Mr. and Mrs. Trautman.
    Where in the distribution of a fund in the sheriff’s hands, to which various persons set up claims, one of the creditors, for a sum over three hundred dollars, appeals solely from a judgment allowing another creditor two hundred and eighty-six dollars, the appeal will be dismissed, upon the ground that the appeal is for a sum below the jurisdiction of the Supreme Court. No one but the appellee can join in the appeal.
    from the First District Court of New Orleans, Larue, J.

      C. Dufour, for appellant.

      M. M. Cohen, for appellee.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Preston, J.

John Gauche sued the defendants for rent, and caused the effects in their store, and a lease made to them, to be sold, which produced, in the aggregate, $670 72. The court, on a rule to distribute the proceeds of the sale among several claimants, allowed the plaintiff and landlord $355, leaving for further distribution $315 72.

P. 'and E. Reilly, judgment creditors of the defendants, claimed and were allowed, as a privilege, by virtue of an attachment of that sum, $286 42. This leaves less than that what was necessary to pay the costs, $29 28.

Bawoelet, a judgment creditor for $559, claiming the funds in the hands of the sheriff, appealed from the judgment in favor of the Reilleys, and cited them alone. They move to dismiss the appeal, on the ground that the amount, in controversy, $286 42, does not give this court jurisdiction. The motion to dismiss, must prevail. It is true, that they claimed the whole amount of their judgment, out of the fund in the sheriff’s hands; but they did not appeal from the judgment in favor of Gauche, which being satisfied, leaves but the sum of $286 42 in the sheriff’s hands, as the subject matter of controversy between the appellant and appellee. It is clear, we have no jurisdiction of the controversy. Neither party having appealed, as to the judgment in favor of Gauche, nor he against them.

Gauche has attempted, in this court, to join in the appeal, and claims a reversal of the judgment. It is reserved to appellees alone, to join in the appeal taken against them. We are unable, therefore, to consider Gauche a party to the appeal, or to afford him the relief he claims.

Had Gauche appealed, or had either party appealed, as to him the case would' have been similar to that of Colt v. O’Callaghan, 2d Ann. 189. But, as the case is before us, it falls within the decision in the case of The Second Municipality v. Corning & Co., 4th Ann. 407. The amount in the sheriff’s hands, about which the parties in this court contend, is less than three hundred dollars.

The appeal is dismissed, at the costs of the appellant.


text:
    The Milne Asylum v. The Female Orphan Society et al.
    The testator had willed Ms property to two existing benevolent societies, and to found two others, one-fourth to each. Thirty thousand dollars had been set apart by the court of probates, to erect buildings, &c., for the two contemplated institutions. Held: That this amount should be deducted from the share of the said two institutions, as universal legatees, and that they were not entitled to that sum, over and above their shares, as universal legatees.
    An account of executors, duly homologated, is res judicata between the executors and legatees, but is not so as to the legatees inter se.

    APPEAL from the Second District Court of New Orleans, Lea, J.

      F. Buisson, for plaintiff.

      Elmore and King, and G. B. Duncan, for defendants.
   The judgment of the court (Eusüs, C. J., absent,) was pronounced by

Rost, J.

The will of the late Alexander Milne, contains the following dispositions : “ It is my positive will and intention, that an asylum for destitute orphan boys, and another asylum for the relief of destitute orphan girls, shall be established at Milneburg, in this parish, and that my executors shall cause the same to be duly incorporated ; and to the said two contemplated institutions, and to the present institution of the society for the relief of destitute orphan boys, and to the Poydras female asylum, I give and bequeath, in equal shares or interest of one-fourth each, all my lands on the Bayou St. John, and on the Lake Pontchartrain, including the unsold lands of Milneburg. I institute for my universal heirs and legatees, in equal shares or portions, the said four institutions, to whom I give and bequeath the residue of all the property and estate, movable and immovable, I may possess at the time of my decease, to be equally divided and apportioned among them.”

The two asylums ordered to be established by the will, were incorporated by the Legislature, afterthe death of the testator; and the two others, named in this disposition, entered into a notarial agreement with them, by which they renounced the right which they had, to contest their capacity to take under the will, on the ground that they were not in existence at the date of the will, or the death of the testator, and admitted them as joint universallegatees, in equal sh'arfet?' with themselves. The succession has since been administered, and in the divis¡on assets, the Milne Asylums have each received the sum of $1,115 26? more than their co-legatees.

The Milne Asylum for destitute orphan boys, now sues the Society for the-relief of destitute- orphan boys and the Poydras Asylum, alleging its right to receive from the succession of Milne, $15,000 over and above its share, as universal-legatee,- and claims from- them, jointly, the difference between that sum and $1,115 26, already received on account.

The defendants deny the plaintiff’s demand, and claim, in reconvention, $1',115 26. The district judge rejected it, and allowed the claim in reconvention. The Milne Asylum has appealed.

The appellant basis its right to recover, on a judgment rendered in 1840, on ai rule taken by the executors-upon the four universal legatees and the attorney of absent heirs, to show cause why $100,000 of the funds of the succession should, not be appropriated for building, establishing, and furnishing the two Milne Asylums, then lately incorporated by the Legislature. This decree is as follows :

“ The court being of opinion, that it was the intention of the testator, that the-Milne Asylums should be established out of the funds of the estate ; and considering, by the agreement entered into by the parties, that the sum of $30,000 would be but a reasonable sum- to be appropriated for the building,-establishing,and furnishing the Milne Asylums, for the relief of destitute orphan boys and orphan girls, do now order, adjudge and decree, that the dative executor of the estate do-appropriate and set apart for the above purposes, the said sum of $30,000, to Be’ distributed in the manner which the said asylums may deem fit.”

The agreement referred to in this decree, was, that the executor might set-apart two sums of $15,000 each, for the purpose of establishing the two Milne’ Asylums; the representatives of these asylums stating, in the agreement, that they claimed these sums, independently of their rights, as universal legatees, on a supposed intention of the testator to that effect; the defendants, on the contrary, resisting any interpretation of the will, under which they would receive less than one-fourth of the estate, and reserving to themselves the right to appeal from the judgment about to be rendered on the agreement. They did not appeal, and the plaintiff’s counsel contends that the judgment is now final, and that it is conclusive as to the right of the Milne Asylums, to receive over and above their share, the sum acknowledged by the defendants to be reasonable to defray the expenses of the establishments, which, in the opinion of the district judge, the testator intended they should have.

We do not so understand the decree. The judge does not expressly say, that the $30,000 set apart by him, are to be paid over to the Milne Asylums, beyond their shares as universal, legatees. ‘We think, with him, that as the testator asked nothing for those asylums from the Legislature, except the acts of incorpotion, he must have intended, that when incorporated, they should be established out of the estate, and that a sum of money sufficient for that purpose, should at once be appropriated to it, without waiting for the final settlement of the succession. But we are equally well satisfied, that the will is susceptible of but one interpretation, and that the cost of establishing them, must be imputed to their share as universal legatees. The judgment will bear that construction fully as well as the other, and as it best accords with the facts and the law, as well as the equity of the case, we feel bound to adopt it.

It is next urged, that the executor, in the rendition of his final accounts, expressly stated the right of the plaintiffs to an extra part of $15,000, and proposed to distribute some assets remaining in his hands, in conformity thereto that the defendants assented to the distribution, and made it binding upon themselves, by approving the account and discharging the executor.

It is true, that Mrs. Elizabeth Clement and Mr. Beverly Chew, each representing one of the defendants, went before a notary, and took upon themselves' to declare, that the principles according to which the tableau of the executor had been made out, (having reference to the judgment rendered in 1840,) were res judicata between the parties, and entitled the Milne Asylums to receive $30,000 beyond their share, as universal legatees. But the legal opinions of old ladies,are not yet held to be precedents in courts of justice ; and as the declaration was made in error, it ought not to prejudice the rights of the defendants.

The object of the executor, in filing his account, was to obtain his discharge,not to settle the accounts of the legatees inter se. The consent of the latter, that the account should be homologated, as presented, is binding between thenr and the executor; but it is not easily perceived, how it could be res judicata between the legatees. It is, however, unnecessary to decide that question, because the plaintiff’s action involves a renunciation of that plea. If the judgment of homologation was conclusive as to all matters in the account, the payments mentioned therein, as having been made by the executor to the defendants, could not be recalled; and as the plaintiff has expressly agreed to warrant to them their allotted shares of the real estate, its action must necessarily fail.

• Considering, that under that state of facts, the plaintiff could not avail itself of the plea of res judicata, if that plea was otherwise well founded, and that the questions at issue were open for adjudication in the district court, we are of opinion that justice has been done between the parties, and that the judgment should be affirmed.

The judgment is therefore affirmed, with costs.


author: Slidell, J.

text:
    Michael Moore v. F. H. Knapp.
    The judgment homologating a sale under a monition, may be appealed from, even where' the appellant did not appear or show cause in answer to the monition.
    The 6th section of the act of 10th March, 1834, prescribing the effect of a judgment on a monition, contemplates a judgment which has not been appealed from, and has thus become irrevocable.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Durant and Hornor, for appellee.

      John Finney and C. Roselius, for defendant.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Slidell, J.

This is an appeal taken by the defendant, from a judgment confirming a judicial sale, in a proceeding by monition under the act of 10th of March, 1834, p. 125.

The defendant did not appear and show cause in' th'e court below,- against the prayer of the monition. It is said by the appellee that, in such a case, the judgment of the district court is final and conclusive, and cannot be made the subject of an appeal. Before expressing our opinion upon this point, it is proper to recur to the language of the statute.-

The statute, as its title imports, was framed with a view to “the further' ■assurance of titles to purchasers at judicial sales.” By its second section, it ■authorizes the purchaser to publish, by newspaper, a monition, calling on ali! persons who can set up any right to the property, in consequence of informality,&c., &c., to show cause, within thirty days, &e., why the sale should not be confirmed. By section third, it is enacted, that the monition shall stafe the judicial authority under which the sale took place, and shall also contain the' same description of the property purchased, as that given in the judicial conveyance to the buyer; and shall further declare, the price at which the object was bought. By the fifth section, it is enacted, that on the expiration of' the' thirty days, the party obtaining the monition may apply to the judge of the court, out of which the monition issued, to confirm and homologate the sale. And it shall be the duty of the judge, in case no cause is shown against the prayer of the monition, to homologate and confirm the judicial sale in question : provided, always, that before he does so confirm it, he shall be fully satisfied that the advertisements have been inserted in the newspapers as already directed, and that the property has been correctly described, and the price at which it was purchased, truly stated; but in case opposition be made to the homologation, and it should appear that the sale was made contrary to law, it shall then be the duty of the judge to annul it; otherwise to confirm, as in case so opposition was made. In the sixth section, it is enacted, that the judgment of the court on the monition aforesaid, shall be, in itself, conclusive evidence that the monition has been regularly made and duly advertised, nor shall any evidence' be received to contradict the same, or to prove any irregularity in the procedure. By the seventh section, the judgment of confirmation shall bar minors, absentees, &c.

It will be observed, that in cases where no one shows cause against the prayer of the monition, the judge is commanded, by the statute, to direct his attention-to three inquiries: Have the advertisements been inserted in the newspapers? Has the property been correctly described? Has the price at which it was purchased, been truly stated? Before he can lawfully decree the confirmation of the sale, he must be fully satisfied that those things have been done; and how is he to be satisfied of those facts ? Certainly, as in other cases, by evidence— il sara promt a sa satisfaction, says the French text. The judge is, therefore, placed in the same position as in any other matter of judicial action;. He is to receive evidence, consider its sufficiency and effect, and having applied his judicial reason to the subject matter-, decide the case presented. Iri the performance of this judicial duty, the judge may err; and when it is considered that the decree is not interlocutory, but final, and that it acts definitively upon rights of property, it would be a strange anomaly if such a decree should be taken out of the ordinary eatigory, and, unlike other final judgments, be irremediable by appeal. Such a construction of the statute, would involve a violation of the former Constitution, which gave the right of appeal in terms substantially the same, so far as the present question is involved, as are found in the existing Constitution.

In construing, therefore, the sixth section of the statute upon which alone the appellee rests his motion to dismiss the appeal, we must so interpret it, if possible, as not to bring the lawgiver into conflict with, the Constitution; and ■ there is no difficulty in doing this. The reason of the provision found in that section, was probably this: The proceeding, under the statute, was by monition ; the constructive notice, by newspaper publication, was substituted for the ordinary remedy of personal notice by citation. In the latter case, the evidence of .■service, whereby the court has acquired its jurisdiction over the person of the defendant, is a matter of judicial record, the sheriff’s return. But the newspaper, which is the vehicle of constructive notice in monition cases, is a transient and unsafe memorial; and asno judgment is valid without notice, actual or constructive, to the party affected by it, the Legislature thought fit to cut off the future discussion which might arise as to the fact of publication, when the means of proving it might have disappeared. The judgment, therefore, says the statute, shall be, in itself, conclusive evidence that the monition has been regularly made and duly advertised. No one shall afterwards be permitted to attack the judgment as a nullity on the ground, that the indispensable basis of jurisdiction, notice actual or constructive, did not exist. But when is the judgment really a conclusive judgment in legal contemplation ? Only when it has become irrevocably final. So long as it is open to appeal, its conclusiveness upon the right of parties is inchoate only.

Being therefore of opinion, that the sufficiency of the evidence upon which the judgment was rendered, may be considered by this court, we have to inquire whether the proof adduced before the district judge, conformed to the requisitions of the proviso contained in the fifth section. It should appear, from this evidence, that the advertisements have been inserted in the newspapers as in the statute directed; that the property has been correctly described, and the price at which it was purchased, truly stated.

Now, it appears from the statement of facts, that the evidence submitted to the district judge, consisted of: 1st, the affidavit of J. S. Baron, concerning the publication of the monition; 2d, the record of the suit of Moore v. Knapp, No. 4359 of the docket of the district court.

Baron’s deposition does not show whether the description of the property, contained in the monition, corresponded with the description in the sheriff’s sale. Nor did the record of the suit of Moore v. Knapp, as it existed at the time of the trial, show that fact.

The sheriff’s return of the writ oí fieri facias, was not then part of the record. It was not made until some months afterwards. It bears date four months after the signing of the judgment of confirmation.

The sheriff’s deed was, at the time, copied in the deed book, kept in the clerk’s office, pursuant to the 697th and following articles of the Code of Practice. But we do not consider that enrollment, as forming part of the record of Moore v. Knapp. The evidence, therefore, presented to the district judge was insufficient.

In what we have hitherto said, we have assumed that the clause of the fifth section, which requires that the judge shall be fully satisfied that the property has been correctly described, means that he shall be fully satisfied that the monition described the property as it was described in the sheriff’s sale. This is claimed, as the true construction, by the counsel for the plaintiff, and by one of the counsel for the defendant. But if we adopt the only other construction, of which the clause is susceptible, to wit, that the judge must be satisfied that the property was correctly described in the sheriff’s proceedings, the advertisement, adjudication, &e., the result is equally fatal to the appellee. The sheriff’s advertisement and the adjudication were defective in this; they described the property sold, as the interest of Knapp, in three judgments obtained in the name of Paradise, Lawrason S¡- Co. against certain defendants, without stating, in any degree, the nature, extent, or proportions of Knapp’s interest. This omission was calculated to cause a sacrifice of the defendant’s property, by leaving bidders in uncertainty as to the nature and value of that which was sold, and was the less excusable, on the part of the plaintiff in execution, because, by the answers of persons whom he had garnisheed, he had been informed by the relations existing between Knapp and Paradise, Lawrason Sf Co., in whose name the judgments were recovered.

Our views on the subject of advertisements in judicial sales, have been given on several occasions, and need not be reiterated here. See McGary v. Dunn, 1st Ann. 338. Benite v. Maurain, 5th Ann. 133. Gales v. Christy, 4th Ann. 293,

It is therefore decreed, that the judgment, of the district court be reversed, and that the matter of monition be remanded; the costs of the appeal to be paid by the appellee.