
    
      CLAMAGERAN vs. BANKS & AL.
    
    Appeal from the court of the parish and 1 city of New-Orleans.
    An abandonment rightfully made,reverts
   . Porter. J.

delivered the opinion of the court. The correctness of the judgment dered in the coürt below, between the plaintiff and defendants, is not complained of, but the garnishees aver that there is an error in it, so far as it condemns them to the payment of moneys which are in thpir hands. ■

In answer to the interrogatories propounded to them, they stated that they had no knowledge of the defendants, but that they had insured, on the 7th May, 1825, the schooner Samuel Smith for $ 2500, and her freight for $1400 ; that on the 13th of August, a demand had been made on them for $2929 &, 27cents, in consequence of an averred total loss of the vessel; but that no part had been paid, as the sum insured was held subject to any lien which the respondents may have from having _ 1 . ° insured cargo in said schooner, to the amount p Aí>aaa of $3900.

The defendants have become indebted to the garnishees, by having received the amount which the property insured sold for at the port where the voyage was broken up. Whether they have a right to retain this sum as against the attaching creditor, is the only question in the cause*

It is contended they have not: first, because they did not accept the abandonment, and are yet contesting the claim of the assitred, for Which they now insist they have a right to retain the moneys attached: and second,because' they owed the money at the time the attachment was levied, and no subsequent act of the defendants, by which they became indebted to the garnishee, can affect the rights of the attaching creditor.

It appears, from the ease agreed on, that the abandonment was made on the 13th August, 1825. On''the 20th of the same month, the attachment issued by the plaintiff was levied on the sum in the plaintiff ’s hands due to the defendants. At what time Banks Sp Hendricks received the proceeds of the sales of the cargo of the schooner Samuel Smith, is not conclu- . ' sively shewn, either by the case stated, or by any evidence appearing on record.

As to the objection to the garnishees ing this money in their hands, because they did not accept the abandonment, and are yet contesting the claim of the ingured, it is removed by the decision just made in this tribunal, which declares that abandonment to have been rightfully made, and the garnishees in consequence responsible. There is no principle better settled in maritime law, than that an abaa-lonmant rightfully made, reverts back to the time of the loss, and renders the insurer thenceforward the proprietor of the thing insured ; and, whether the legality or correctness of this abandonment be ascertained ¿>y his acceptance of it, or by a decision of a court of justice, in opposition to his wishes, the re-i suit is the same. Phillips on Ins. 459.

But it is contended the insurers have no right to retain the money, because they were ,, debtors to the defendants by the abandonment, sand that the latter having since received mo'ney from them, cannot affect the right of the |ipizing creditor. In support of this position, ae 221*2 article of the civil code is relied on. which declares “ that compensation ctrinOt „ , , take place to the prejudice of the rights ac«* qUjre(j jjy a tp;r(] person; therefore, he, who, being a debtor, is become a creditor since the attachment made by a third person in hii hands, cannot, in prejudice to the perdón seizing, oppose compensation.” Whether this provision could apply to a case such ás that before the court, where the receipt of the money after the attachment, was ⅛ virtue of an authority conferred before, we need not say, as the weight of evidence shews that the money was in fact received by the defendant pré-vious to the time the seizure was made in the hands of the garnishees, so that they can properly offer it in compensation of the debt dué bj*them.

The amount due on the two policies is 3822 dollars. From which must be deducted 2488 dollars, received by Banks and Hendricks.— This will leave a balance of 1334 dollars, from which again must be taken the proceeds'I of the wreck, 206 dollars 73 cents, and 23⅜] dollars, for which Zacharie has a lien; and] the balance will be 874 dollars and 27 cents*] If the captain is entitled to any commission under the.circumstances of the,case, which! we doubt, it must be in a suit where he is a party,

Eustis for the plaintiff,Cuvillier for the defendants. '

It ⅛ therefore ordered, adjudged, and decreed that the judgment of the parish court be annulled, avoided and reversed : And it is further ordered, adjudged, and decreed, that the plaintiff do receive from the garnishee 874 dollars and 27 cents; the costs of the appeal to be paid by the appellees.  