This is an opposition to a provisional account filed by the syndic, Amos Kent.
The appeal was brought up by the commercial firm of Harris & Levi of the city of New Orleans.
I st. The claim of John M. Putnam, as provisional syndic, for one per cent, on the appraised value of the goods and effects confided to him as such, was properly allowed under the 10th section of the act, approved March 15th, 1855, relative to voluntary surrender, &c., p. 432. The fact that the bond furnished by the provisional syndic was not signed by sureties residing within the jurisdiction of the court, cannot be inquired into for the sole purpose of defeating this claim.
2d. The claim allowed by the lower court to Charles H. Allen, for services rendered at the request of the syndic, as bookkeeper &c., was fully proved, independently of the testimony of Allen. The evidence, we think, makes out the case required in Pandelly v. Creditors, 1 An. 22.
3d. Patton, Smith & Putnam, were classed by the syndic as mortgage creditors for $10,228 52, and the oppositions to said claim were rejected by the judgment of the District Court.
It appears from the evidence, that the insolvent debtors, Spiller and Allen, by *293act dated March 27th 1858, gave to the commercial firm of Patton & Smith, domiciliated in New Orleans, and composed of J. F. Patton and Isaa A. Smith, a special mortgage on certain property, to secure and indemnify them against certain contemplated acceptances, &c.
Patton & Smith, from the date of this act to the end of the following month, accepted largely for the accommodation of the mortgagers.
On the 1st of May 1858, the style of the firm of “ Patton é Smith ” was changed into the name of “ Patton, Smith & Putnam,” by reason of the addition of John M. Putnam and John B. Murrell as members of the firm. The paper of Spilhr & Allen, bearing the name of Patton <& Smith, having matured after the formation of the new firm and the fusion of the old firm with it, was taken up and charged by Patton, Smith & Putnam to the credit of Spiller & Alim, together with other charges and advances made after May 1st 1858.
These acceptances, and this account current, are in evidence, and show, after making all the deductions, a balance of $10,256 63 against Spiller <& Allen.
The opponents, Harris & Levi, contend in their brief: 1st. That as the, mortgage was granted to Patt n <£• Smith, and as their acceptances were taken up by Patton, Smith <& Putnam without requiring any subrogation, they can only be classed for the amount allowed, as ordinary creditors. 2d. That the proceeds of the shipments made to Patton, Smith & Putnam, by the insolvents, should have been applied first to the payment of the liabilities of Patton and Smith, and that, had such imputation been made, the mortgage would have been fully satisfied.
On the first point:
It is clear that if Patton & Smith have suffered no damage, the mortgage is inoperative, for its primary object was to indemnify them, and not to secure the payment of the bills drawn by the mortgagers, in the hands of the holders. This point was especially made and decided by us in the case of Elam Bowman v. McElroy & Bradford, 15 An. 646.
The evidence shows that all the assets and charges of the old firm were transferred to the new association ; the indemnities held by Patton & Smith were, therefore, necessarily included in the transfer.
The acceptances of Patton & Smith became, as a consequence of the contract, changeable to Patton, Smith <& Putnam, and when the latter took up the same, they became, by effect of law, subrogated to the mortgage of Patton & Smith, for they were under obligation to them to honor their acceptances, and hence had, in the sense of the Oode Art. 2157, an interest to discharge the debt, as they were bound to do so under their contract with Patton & Smith, who were, as acceptors, primarily liable to the holders.
The payment extinguished the original obligation, but gave simultaneously birth to an action in indemnity secured by a special mortgage ; and had no mortgage been granted, the claim for reimbursement would then have been an ordinary one. Nicholls v. Creditors, 9 Rob. 476.
On the question of imputation.
It appears from the debit side of the account current, that the aggregate amount of the indebtedness of Spiller & Allen is, exclusive of interest, 44,978 99 ; of this sum $13,739 98-100, exclusive of interest and commissions, may be said to bo guarantied by the mortgage.
The credit side exhibits $34,722 36, besides the difference of interest on ihe debit and credit sides, thus showing a balance of $10,256 63 still due by the insolvents.
*294By computing the dates of the receipts and disbursements, and applying the funds received, by preference, to the payment of the drafts which were the cause of the mortgage, as on the date of their respective maturity, we find that all said drafts were paid, with the exception, however, of the three last ones, which matured on the 17th, 29th and 30th of March 1859, and which amount in the aggregate to $2758 64.
The question which now presents itself is, should not the above imputation be made, in the absence of any agreement between the parties ? We find an affirmative answer in the Oode, Art. 2162. See to the same effect, Dunbar v. Bullard, 2 An. 817.
The facts which controlled the decision in Wilson & Co. v. Lewis & al. 6 An. 774, not cited by the appellees, are totally different from those presented in the case at bar.
The appellees have, in their answer to the appeal, asked an amendment by the allowance of the attorney’s fees stipulated in the act of mortgage. This demand is now made for the first time, and we cannot therefore entertain it, for the very obvious reason that our jurisdiction is appellate and not original.
It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended by reducing to the sum of two thousand seven hundred and fifty-eight 64-100 dollars, the amount allowed Patton, Smith & Putnam as a conventional mortgage; and by placing the said Patton, Smith & Putnam, as ordinary creditors, for the excess of their demand, that is to say, for seven thousand four hundred and sixty-nine 88-100 dollars ($7469 88); the judgment being otherwise hereby affirmed. It is further ordered that Patton, Smith & Putnam pay the costs of this appeal.