
    
      TURPIN vs. HIS CREDITORS.
    
    Appeal from the court of the parish and city of New-Orleans.
    Taxed costs of every kind arepriviiedged.
    A. Bordeaux, Marie Louise, and other creditors of the insolvent, instituted suits against him, in June 1818, and on the 10th of July obtained judgment by default. On the 10th he filed his petition for the meeting of his creditors, and obtained an order for the stay of all proceedings against him, before the judgment by default became final. The creditors met, accepted the cession and appointed a syndic.
    The creditors, who had obtained judgments fey default, obtained against him a rule, to shew cause why the taxed costs in these suijs should not be paid as priviledged debts, which after argument was made absolute. Therebeing.no personal property surrendered, no apportionment was made in pursuance of the rule, and these creditors opposed the homologation of the tableau of distribution, and obtained their collocation thereon, for these costs, before the mortgage creditors, who' appealed from the decision of the court in this respect.
    
      Be ¿Irmas, for the appellants.
    The gist arti-crie of the Napoleon code is couched in the same i ,, , „ , , > . i i words as the part oí our statute on which the ap-pellees rely. Civ. Code, 468, art. 73. Inascer- . taining therefore the legal meaning of the terms law charges, fraix de justice, in our statute, we will be much aided by the opinion of commentators and the decisions of courts of justice in France on the correct meaning of the same words in the corresponding article of the Napoleon code.
    Ohe could not imagine that by virtue of this article (the 2101st) a creditor, who had caused the personal estate of his debtor to be seized and sold, could pretend to a preference, on this account abme, on the proceeds of the sale. Pretentions of this kind were, however,' admitted by an inferior tribunal, but set aside by a decree of the sovereign council of Brussels of the 11th of December, 1806. Discussions sur le Code Napoleon, 485. Notes on art? 2101.
    Law charges,which enjoy a general priviledge are those that have a relation to the total mass of the failure, such as those of seals, inventory and the like. 3 Pardessus, Cours de droit com* marcial, 320.
    If the assignees or syndic had sustained law suits for the common benefit and judgment had been obtained against them, the right of the plaintiffs as to the costs, or that of the defendants as to their disbursements, would not be a priviledge. Id.
    
    The collection of active debts may have occasioned charges and costs not taxed, faux fraix. The sale of personal property must occasion charges of appraisers, auctioneers, brokers, costs of stafnp,'registry. These it is just should be deducted, so as to present for distribution the clear proceeds of the things on which they accrue. Id. 397*
    Law charges, which are those of seals, inventory and sale, have for their object the preservation of the thing. 3 Guichard, Legislation hypothecuire, 105.
    The priviledge, for the charges of seals, &c, takes place in case of failures, as well as in cases of deceases. . It can be applied to mortgage as as well as to chirographary creditors. J\Fup. Code, 2106, 2108.
    Aliáis having failed, his real estate was sold and the personal being insufficient, the officers of justice claimed, by priviledge and preference on the proceeds, payment of the costs occasioned by the failui’e, and resulting from the affixing recognising and removing the seals. Bourcier and the insolvent’s wife, creditors by mortgage, opposed their collocation. They contended , . that such charges, being no ways useful to mortgage creditors, whose rights are preserved by the sole registry of their claims, could not be levied, by a resort to their prejudice, on the mortgaged property, but only on the other property, inasmuch as they are incurred for the sole advantage of chirographary creditors, and that the articles S101 and 2104 of the N apoleon code, which allow a priviledge on real and personal estate for law charges, are not to have any effect in cases of failures, but only in cases of' decease. The officers of justice answered that, as the law had not made any distinction, the courts could not make any. They obtained a judgment in' the court of the department of La Loire, which was affirmed by the imperial court on the 28th of January, 1812.
    The expenses of seals and inventories, those of sales, of the settling of the ranks of creditors, of the seizure, appraisement and auction and other law charges are to be levied before any other debts : because they concern all the creditors ; having been laid out for their common benefit. Domat, 3, 1, § 5.
    When a creditor causes the personal estate of his debtor to be sold, if there be no opposing creditor, it is evident that there is no priviledge or concurrence with any other person; anil he is entitled to the amount of his debt out of the proceeds. But, if there be opposing creditors and a suit be instituted for distribution, the officer is to deposit the proceeds, after deducting bis fees, and the several privileges are to be discussed. Among these, law charges occupy the first place. These charges are those of seizures guardianship and sale, which are incurred for the common interest of all. It is evident that those which the creditor has made in order to obtain judgment do not enjoy this priviledge, because he has made them for his own “private advantage only. Nouveau Ferriere, verbo Pri-'.vilejge.
    
    The name of law charges is given to all the expenses occasioned*by an act passed under the seal of a court of justice, whatever that act may be. The charges of acts are generally to be borne by those for whose interest they are made. 8 Denisart, 7⅛7> verbo Fraix de justice.
    
    The expenses incurred in prosecuting a law suit are denominated law charges or costs : but the latter denomination is more particularly applicable to those which are privileged by law. The defendant has no privilege for his. The plaintiff has not a privilege for all the expenses he.has been at in obtaining judgment,.hut only those made to render his title executory.
    If there be several creditors and the money is to be apportioned among them, the costs of the apportionment are to be taken out by preference. .\s to the costs, incurred by the opposing creditors, in the contestation, they are not to be pawLly preference, unless the creditors Were authorised to enter into such a contes-tation : otherwise they are to be classed for these costs as for their principal debts,.
    As the sale of the personal estate is necessary to procure the payment of the creditors, when it takes place under an order of court, the costs are to be taken out of the proceeds, because they are fbr the benefit of all. -
    The costs of seals and inventory, which preserve the.goods seized and prevent their waste, have the same priviledge as the cost of the sales. Tessmdier, Regime Hypothecaire, 7,
    The only priviledged costs are those incurred for the common interest of all the creditors. 7 Le. Cler-q, 204.
    Law charges, in the seftse of the article 2101, are all those made to procure the sale of the thing and the distribution of its proceeds. A distinction is to be made between these charges and the costs incurred' before courts of justice, in of-der to obtain judgment.
    It must, therefore, be said with Ferriere, as to the law of the eleventh of Brumaire, in tire seventh year, and with the orator of the tribu-nate, that the law charges, of which it isa question here, are those incurred for the preservation of the thing for the benefit of all those who have a right therein : those of seals and inventory, of sale or adjudication, those for making out the tableau and the determination of contests arising thereon, and, in a word, those which, according to the expressions of the tribunate, have for their object the preservation of the thing. 10 Merlin, Rep. de Jur. 20. verbo Privilege.
    
    Law charges, are those which have been made, according to Domnt, for the common cause of the creditors, for preserving their pledges, for discussing and making out the apportionment. In conséqUence, we are to consider as such the costs of seals, either after the failure or decease of the debtor, those of the inventory, sale and liquidation: those of conservatory acts, or instances in order to interrupt prescription, for a revendication, stoppage in transitu. Those which a creditor may have made for his personal advantage as to obtain judgment or render ⅜8 title executory, cannot enjoy any priviledge, but that which belongs to his claim, of which • they ave but an accessary. 1 Perfil, Regime-Hypothecaire, 36.
    .Jaw charges which have a priviledge those for affixing the seals after the decease or failure of a debtor, the sale of property seized and the lifee. Vauvilliers, des privileges
    
    *' Lap. charges, iu the 8l0tst art. of the code ííapoleon, are those concerning the common interest of the creditors, such as those of seals and inventory. Those for the particular interest of a creditor follow the nature of the principal demand. i\I)elpincourt, Cours du Code Nap. 680.
    
      CumlUer, for the appellees.
    The judgment of the parish court is in 'conformity to the uniform decisions of this, in the cases of Morse vs, Williamson 8£ Patton’s syndics, 3 Martin, 888, Morel vs. Misottiere’s syndics, as well as those of the superior court of the late territory, in those of Ellery vs. JLmelung’s syndics, 8 Martin, 848 Sf Hímes vs. Esteva’s syndics, id. 864.
    It is not in contradiction with the decision of the tribunal of the department of La Loire, af, firmed by the imperial court of Trance, cited by the opposite coupsel, nor the decree of the superior council of Brussels,
    
      Funeral expenses, law charges, certain Vnedical' charges, salaries of certain persons, the price of. a debtor’s subsistence aré by our statut# r priviledged on his personal and real properly. Civ. Code, 468, art. 73, 4/0, art. 76- The! priviledge cannot be confined by construction to expenses incurred in the preservation of tH’e; thing; for they extend to every part of the debtor’s property, whether incurred for the preservation of this or any part of it, whether they relate to his property or are Merely personal. If a baker supplies me with bread,' his priviledge immediately attaches : Will my subsequent failure destroy it? Certainly not j it will follow my property after its cession, in the hands of my creditors. If I employ an attorney, his taxed costs, those of the sheriff and clerk, if he bring a suit, are priviledged-costs. My failure will not divest them of théir rank, among other claims against me. If I succeed in the suit, these taxed ‘costs are payable by the defen dant against whom judgment was obtained: and there cannot be any good reasoh to say'that they are not due as taxed costs, in the language of the statute as laW 'charges, aúd recoverable as such. If so, the creditors of thenj^havé a privi-ledge on the property of the plaintiffánd defendant and the failure of either cannot mar their rights.
   Mathis, J.

delivered the opinion of the court. This is a case in which a tableau of distribution Of the insolvent’s estate is offered for homologation, by the syndics, and opposed by two of the creditors. They cflaim, as a debt priviledged on all the moveable property of the insolveíÉ, the taxed costs of certain suits, which they had prosecuted against him previous to his failure, and rely on that part of the statute which grants a priviledge to law charges, in general terms, without confining or limiting the expression to any specific costs and charges. Civ. Cade, 468, art. $3. It is contended by the syndics that this part of our code is expressed in terms similar to those of the SlOlst article of the Napoleon code, aud the construction and interpretation given by French jurists to the latter ought to be adopted by the courts of this state. According to this, the terms fraix de justice (which correspond to the English words law charges J tire confined to those expenses, v. hich arise out of proceedings instituted for the benefit and preservation of the estate of the insolvent; and a number of authorities are cited, for ttiis confined application of these terms. But, ’’tfith whatever deference and respéct, we may view' the opinions of the authors cited, we are certainly not bound to adopt them. As the article of oar code is indefinite- and does not distinguish and limit the species of law charges intended to be embraced by it, courts of justice cannot make any distinction.

We are of Opinion, that the statute accords to the appellees, the priviledge they contend, for, as to every kind of judicial cost which may have been properly taxed against the insolvent.

It is therefore-ordered, adjudged aud decreed that the judgment of the parish court be affirmed with costs.  