HALL vs. EMERSON'S CURATOR AND HEIRS, 11 La. 1

Bullard, J., delivered the opinion of the court. The question we are called upon to solve in this case, was presented to the court below on a case stated. The parties agreed that the plaintiff has recovered a judgment against the succession of Emerson ; that the money out of which he claims to have his judgment satisfied, was paid over to the defendant, in pursuance of a judgment rendered by the . 1 ' , JO ^ District Court of the United States, for the Eastern District of Louisiana; that judgment was rendered in conformity with a special act of Congress.

If the moneys thus received be liable for the debts of Emerson, contracted during his life time, then the court will decree payment accordingly; if not, then the court will decree that the plaintiff has no claim to be paid out of that fund. The question, therefore is, whether the fund, thus received, belongs to the children of Emerson, independently of his creditors, or whether it forms assets in the hands of the curator of his estate; and this depends upon the proper construction of the act of Congress. It appears by the

preamble of the act, and other evidence before us, that B. Chew, E. Lorraine, and W. Emerson, at their joint trouble and expense, had seized and prosecuted the Josefa Segunda, for an infraction of the laws of the Union, for the suppression of the slave trade; that she was condemned by the District Court of the Louisiana District, and a portion of the proceeds was decreed to them as captors.

On an appeal to the Supreme Court of the United States, that judgment was reversed, so far as related to the claim of those persons, the court being of opinion, that in consequence of an omission in the acts of Congress, they were not entitled to any part of the prize. While things were in this situation, Emerson died, and a memorial was presented to congress by Chew and Lorraine, and the children of Emerson, and the act in question was passed, by which the District Court was « authorized, and directed to order the proceeds of said seizure, now deposited, &c., to be paid over to said B.

Chew, and the legal representatives of W. Emerson and E.

Lorraine, respectively.” It is contended by the counsel for the appellant, that Emerson, in his life time, was not entitled to this fund, and consequently, that it cannot belong to his succession; that it was granted to his children as a pure gratuity, a donation, a proof of national bounty and gratitude for meritorious services, certainly, but services which, under the existing laws of the country, entitled him to nothing; that the words “ legal representatives,” under the act of Congress, is mere clescriptio persones, that Emerson had no right, of which the act of Congress may be considered a restoration or a recognition, and consequently, that the money given does not belong to his estate.

It is true, that without the interposition of Cohgress, Emerson was without remedy, inasmuch as the sovereign cannot be sued ; but it is equally true, that the seizure and condemnation of the slave ship, in accordance with the policy of government, at the expense and by the personal exertions of Emerson and his associates, benefited the treasury of the Union; that the government, if it had retained .the proceeds of the ship, would have profited by the labor and expenditure of money on the part of those citizens. The want of remedy is not always a safe test of right.

It appears to us there was an equitable right, and that the subsequent act of congress is evidence of the liberal justice of the government, rather than a pure donation or gratuity. The expense and labor employed in that prosecution diminished pro tanto the means of Emerson to provide for his debts, and formed the foundation for a just claim for indemnity. If-similar services had been rendered to an individual even without his express request, the person rendering them, as negociorum gestor would be entitled to an action to recover' back his expenses thus beneficially incurred.

Let us suppose that Emerson had afterwards become insolvent, and had executed an assignment of all his property, rights and actions; would this right or claim have passed to his syndics 1 Numerous cases to which we have been referred tend to establish the affirmative of this proposition. The ease of Comegys et al vs. Vasse, 1 Peters, 193, relied on by the counsel for the appellant, is strongly analogous. Vasse had been an underwriter, and had paid various losses occasioned by unjust seizures and condemnations by Spain. The assured had abandoned to him.

He retained nothing but the feeble spes recuperandi, depending on the justice of a foreign government, and the chances of negociation between his own government and Spain. He became a bankrupt, and executed an assignment according'to the bankrupt law of 1800. His assignees many years afterwards received a share of the indemnity for unjust spoliations, provided for by the treaty of limits of 1819, with Spain. Vasse instituted his action against his assignees to recover back the amount they received, on the ground that his claim did not pass by the -assignment.

The Supreme Court of the United States decided against him. lit delivering the opinion of the court in that case, Mr. Justice Story strongly combats the doctrine established by the master of the rolls in the case of Campbell vs. Mullett, 2 Swanton’s Reports, 551, which arose under the British treaty of 1794, in which he said, that “whatever the individual obtains is not on the ground of right, or private property, but of hardship and injustice.

Though this, therefore, is not a case of pure donation, as of a gift without any thing in the nature of a consideration, yet for the purpose of being contrasted with property or right, it is a donation, not a restoration of a former right, but from a new fund belonging to an independent authority, a grant to a sufferer for what he has lost.” The Supreme Court, on the contrary, held, that the party might, with reference to mere municipal law, be without remedy, but with reference to principles of interna-^ tional law, he had a right, both to the justice of his own and the foreign sovereign; that the right to compensation, in the eye of the treaty was just as perfect, though the remedy was merely by petition as the right to compensation for an illegal conversion of property in a municipal court of justice.

They adopted the principles sanctioned by Lord Hardwicke, in the case of Randall vs. Cochran, 1 Vezey, 98, in which it was settled that the right of indemriity accompanied the right of property, and that if the party had died before or after the treaty was made, and compensation had been subsequently decreed, it would have been assets, and 'distributable as such in the hands of his executors and administrators. The right of indemnity accompanies the right of properly'.

So, where a person has a claim on govern-mentfor meritorious services rendered, or’ losses incurred, and died before or after a treaty was made or law passed, and compensation subsequently decreed or given, it will be assets, and distributable as such in the hands of his executors or administrators. The case here referred to, as decided by Lord Hardwicke, is a very strong and very remarkable one.

The king of England had issued letters of reprisal against the Spaniards, for the benefit of his subjects, in consideration of losses sustained by unjust captures, and commissioners were appointed to. distribute the produce of those reprisals among the sufferers. The commissioners would not permit the underwriters, but only the owners, to make claim for the losses, although the latter had already been satisfied for their losses by the former. The Lord Chancellor decreed on the contrary, that the owners should account for the same to the insurers.

Here the almost hopeless chance of indemnity for losses, sustained by the injustice of a foreign government, was treated as a right, which passed by tacit subrogation to the underwriters, by whom the losses had been paid, and a fund provided by the extraordinary measure of reprisals, was considered not as a bounty to the sufferers, but substantially as an indemnity to the underwriters. The case of Evans et al vs. Charles et al., Anstruther’s Reports, 128, has been relied on in this case.

The question was, to which of four setts of claimants a certain fund belonged, which had been given by will to such of- the creditors of the husband of the testatrix, as had compounded with him in his life time for ten shillings in the pound, of a certain debt, or to their personal representatives.

The reasoning of the chief baron has not much connexion with his conclusion, according to his own candid and singular confession; that the Court of Exchequer had found itself much puzzled to form any determination, “ and we now decide it,” says he, “rather because it is necessary to award the property to some one, than that we see clearly a superior right in any.” The only question is stated to have been, who are entitled to take, under the description of the personal representatives of the creditor; and it was decided, that the administratrix of the deceased creditors was entitled beneficially to the bequest, and not the next of kin, nor the residuary legatee of the creditor.

The difficulty appears to’ have been in raising an implied trust in relation to property which was not vested in the original creditor after he compounded for ten shillings in the pound, the remaining- ten shillings being long afteiv wards provided for by his widow.

The case turned evidently upon a distinction peculiar to the common law between a legal and an equitable right, and the court decided in favor of the administratrix, because no cestui que trust had shown himself entitled to claim through the person who had the legal title, by answering to the description of personal representative. . i A person who, in his life time, performs services useful to government, and ex-pendshismoney, is deemed to have an equitable claim or right to be remunerated for these services andexpendi-ditures.

This is susceptible of being assigned and transferred, and at his death it is transmitted to his succession — to those who are appointed by law to inherit his property, coupled with the obligation of paying his debts. So, where congress passed a law, authorizing a certain fund, arising from the meritorious services of a deceased person, to be paid over to his legal representatives: Held, that it passed to his curator as the legal representative, standing in his rights, by authority of law, and liable in his hands for the debts of the deceased. The case of Destrehan vs. Destrehan’s executors, 4 Martin, N.

S., 557, has also been alluded to in argument. In that case, this court held that grand children, coming to the partition of their grand father’s estate, in concurrence with uncles and aunts, are not obliged to collate an onerous obligation due by their’father. The children had renounced the succession of their father, who died before their grand father. The analogy between that and the present case is extremely faint.

Emerson was therefore, in our opinion, seized in his life time of an equitable right to be remunerated for services rendered and money expended; a right susceptible of being assigned and transferred, as much as the claims of our citizens against foreign governments for.unjust condemnations and seizures ;■ a hope, a reasonable expectation coupled with a- pecuniary interest. If such a right could be assigned, it was certainly transmissible at his death to his succession, to those who are appointed by law to inherit his property, coupled with the obligation of paying his debts.

If he had bequeathed this claim or right by will, we cannot doubt the legacy would have been- valid. Having died intestate, we must consider it as having descended, and forms a part of his succession. According to the code, succession not only includes the rights and obligations of the deceased, at the time of his death, but all that has accrued thereto since the opening of the succession.

Article 869. No right, whether legal'or equitable, perfect or imperfect, is lost or annihilated, they all descend according to the legal order of succession. “ Heriditas nihil aliud est quam, successio in universam jus quod defunctus pabuit.” 1. 24, ff. When Congress authorized this fund to be paid over to the legal representatives of Wm. Emerson, we are not warranted in supposing that they intended to give it a different destination from what the law would have given it. The legal representative of the deceased person, we understand to be one standing in the rights of the deceased by authority of law.

The defendant having received the money in that capacity,-it is in our opinion, liable in his hand? for the debts of the deceased. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probate's be affirmed, with costs.