
    
      PATTIN ABADIE, vs. POYDRAS.
    
    Appeal from the court of the fourth distriCt.
    The imputation of a payment, is by law r.:ade to thv most onerous debt.
   Matthews, J.

# „ , delivered the opinion of the court In this case the plaintiff obtained an injunction to stay proceedings on an order of seizure which the defendant had caused to be issued against certain slaves mortgaged to him in the year 1814, to secure a debt due from the former, which in 1816 amounted to the sum of $5699 57 3-4 cents, according to a settlement of accounts which took place between the defendant in the injunction, and the husband of the plaintiff The cause was submitted to a jury in the court below, who found a verdict for the plaintiff, and judgment being rendered in pursuance thereof, the defendant appealed.

The evidence of the case shews that the ap-pellee executed the mortgage on which the order of seizure was granted; that the debt which it was intended to secure was taken info the estimate of accounts between the applicant and the plaintiffs’ husband, in a settler r ment made on the 26th of March, 1816, which time a payment was made by the latter, amounting to $4362 87 1-2 cents, with the funds of the appellee’s wife. According to the statement then made, the whole amount due by Abidie and wife to the defendant, was $8949 95 1-4 cents. Subsequent to this arrangement, viz: in the year 1823, the plaintiff sued for and obtained a seperation of property from her husband; and in rendering judgment in that case, the sum which had been previously paid over to the appellant by her husband was included, estimated at 5000 dollars. These are the principal facts in the case, and those alone worthy of consideration on its decision. From them, two questions arise; the first relates to the imputation of the payment made on account in 1816; the second, to the effect on the rights of the appellee, which her claim and consequent judgment against her husband, can have.

Admitting that the debt owing by the ap-pellee and secured by the mortgage on which the seizure was obtained, forms the first item in the account, as regulated and settled between the husband and the appellant; and that the payment made on that occasion, was with r J funds of the mortgager: no doubt can be cnteríajnc(j 0f jtH ]ega] imputation, in the ab- ' gence of any positive stipulation in relation to its appropriation. Had the debts, as stated in that account, been those of the husband alone, and he had used the funds of his wife in payment, the doctrine of imputation of payments would have found no place in the present action. But it appears that the separate debt of his wife, joint debts of husband and wife, and those perhaps of the husband alone, were also blended together in the adjustment of that account. The payment must therefore be considered in relation to all the items; and as it was not specified, which the parties to the settlement intended to extinguish, it should be imputed according to the provisions of law made for such cases, and which are found in the old code, 290, art. 156. The debt due on the mortgage was certainly the most onerous in the catalogue of settlement; and in discharge of it, the sum paid ought legally to be imputed. By the payment it was extinguished pro tanto, and could never afterwards be revived, unless by express consent of the original contracting parties.

If this proposition be true, it solves the second question in the case, which has to the effect produced by the judgment obtained against the husband by his wife in her suit for seperation of property. In that judgment, she had probably no right to be considered as a creditor for the amount of funds which her husband had received, as belonging to her, coming from the succession of her mother, for the sum thus received had been previously appropriated to the payment of a debt which she justly owed. But that it had been so appropriated, there is no evidence to shew that she had any knowledge. It was the duty of her husband in that action to have shewn the use which he had made of the funds in de-fence of the claims set up against him; and if his wife’s claim and his acquiescence were productive of fraud, it affects all his creditors, and not the defendant in particular; certainly not in such a manner as to revive a debt which had been long before extinguished by payment.

But the amount paid was not equal to the hypothecary debt, which was, with interest calculated at the time of payment, 5699 dollars 57 3-4 cents, when the whole sum paid wa§ only 4362 dollars 87 1-2 cents. The J mortgage by which the sum of 5181 dollars 43 cents is secured, contains no stipulation for the payment of interest; and the defendant in the present suit, in his petition to obtain an order of seizure, claimed only 4587 dollars 7 1-2 cents, being the balance due on said mortgage, after deducting 1112 dollars 50 cents, a surplus which remained out of the payment made in 1816, according to the imputation contended for by the appellant. That payment must, however, as we have already expressed our opinion, be imputed, in toto, to the extinguishment of the debt due on the mortgage, being 5181 dollars 43 1-2 cents, from which deducting the total amount paid, 4362 dollars 87 1-2 cents, a balance remains due to the mortgage creditor, amounting to 877 dollars 56 cents; and as to this last sum, the proceedings on the order of seizure are improperly enjoined.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be avoided, reversed and annulled. And it is further ordered, adjudged and decreed, that the injunction obtained in the present case be dissolved, so far as it relates to the sum of seven hundred and seventeen dollars and fifty-six cents, and that it remain and be made per-7 1 petual for the sum of four thousand three dred and sixty-two dollars eighty-seven and a half cents, being part of the whole sum claimed by the present applicant and defendant in his petition for the order of seizure. And that the appellee pay the costs of this appeal, the appellant paying those of the court below.

Derbigny for the plaintiff, Curillier and Seghers for the defendant.  