The judgment of the court was pronounced by
Eustis, C. J.*The appeal before us is from a judgment of the late Commercial Court of New Orleans, distributing the proceeds of the steamer Sea Bird among the different classes of creditors. It is prepared with great care, and we regret that it is not in our power to determine several important questions of law which the learned judge has passed upon inhis opinion.
*179We concur in the judgment as to the distribution in favor of the creditors, which gives them a preference to the privilege claimod for the vendor. The balance, §2,517 67, which is assigned to Todd 6s Haven, trustees of Arnold, we think they are not entitled to receive, adversely to the attaching creditors. It appears that, in October, 1845, in New Orleans, by public act, Moore sold to Griffin the steamer Sea Bird, for the sum of §10,500, of which §3,500 was paid in cash, and, in payment of the balance of said price, the purchaser furnished his three promissory notes for the sum of §800 06 each, payable one at ten days after date, and the others on the first of April and July then next ensuing; and the purchaser placed himself in the stead of the vender and assumed to pay, to his acquittance, five certain promissory notes given by the vendor to Albert Todd, and Charles H. Haven, as trustees for Willard Arnold, of Kentucky, and secured by deed of trust, dated the 24th of September, 1845. The notes were five in number, and bore interest from date, and the last was payable in May, 1846.
An endorsmeut, on the enrollment, of the deed of trust, giving its date and a description of the notes, was made at St. Louis, and the same endorsement was made in the new enrollment, taken out in New Orleans on the change of ownership. On the steamer being attached, Moore filed his petition and inventory, in which he claimed the vendor’s privilege for two of the notes of §800 06, which he alleges are unpaid. Todd and Haven, as trustees for Arnold, also intervened, and claimed the vendor’s privilege, for §4,599 82, the amount of the five notes which constituted part of the price of the steamer, in the sale from Moore to Griffin, averring that the steamer was subject to the hypothecation creatod by the deed of trust endorsed on the enrollment. The judgment of the Commercial Court was in favor of the latter claim, which took the balance of the proceeds of the steamer, §2,517 67; and also considered that Moore’s privilege, as vendor, existed, and was in full effect for the amount of the two unpaid notes.
To this claim of Moore, it is objected that the two notes were received in payment of part of the price. The authorities, cited by the counsel for the plaintiff, aro conclusive on this point, and the words of the act leave no room for doubt. There is a complete novation of the debt, by a substitution in payment of the notes for the price. The notes, on their face, bear that they are mpart payment for the steamboat Sea Bird, by act &c. It is clear that tho remedy of Moore is confined to his personal action against the parties to tho notes. Barrow v. Howe, 2 Mart. N. S. 147. Abat v. Nolté’s syndics, 6 Ibid, N. S. 637. In relation to tho claim of Todd and ITavan, we have no evidence whatever, except the endorsement on the enrollment and the recital in the act of sale from Moore to Gi'ijfin. The notes themselves were not produced, nor was the deed of trust exhibited ; and on every principle of the law of evidence, against third persons, attaching creditors, their production was indispensable to the establishment of the claim of the intervenors, notwithstanding the confession of judgment by English, in favor of those intervenors. Several reasons have been offered in the written argument of the counsel for Todd Haven, against the objections taken to the insufficiency of the evidence adduced by them. It is said that Cam-mack admitted their claim, as proved by the testimony of Marks. We think there is nothing in the testimony which would authorize the belief that, Cam-mack dispensed with the formalities of law, or his rights as a litigant. It is an error to suppose that Moore, in his intervention, asserted the enforcement of the privilege of Todd 4' Haven,'arisingfrom their alleged debt as being part of tho price. Moore claimed only the amount of his two notes, with privilege. It is *180also stated that the pleadings do not deny the claim. A confession of judgment in favor of these intervenors, by English, the master and owner of the steamer, was filed on the 16th January, 1846, and, on the 21st of February following, the allegations and rights of the intervenors were formally put at issue, by an answer to the petition of intervenors by the plaintiff.
The intervention of Todd Haven is not sustained by evidence, and therefore falls ; and the balance, §2517 67, is subject to the attachment of the plaintiff, who has judgment for a sum exceeding that amount.
It is therefore decreed that the judgment of the Commercial Court, in favor of Todd &f Haven, trustees, andof Moore, be reversed, and that the sum of §2,517 67 be held subject to the attachment of the plaintiff, and that the appellees .pay the costs of this appeal; in other respects, the judgment of the Com.mercjal Court is affirmed,
Slidell, J. did not sit in this caso, h avin g been of counsel in the court of the hist instance.