Kimball vs Taylor. abandoned property. The evidence rather tends to prove that it was not. This objection to the record is therefore untenable. Plaintiff next claims to have shown that Greenwood was expelled from this city by the military authorities pending the proceedings against him, and not permitted to return, and that as a consequence, all the proceedings had in the case after his expulsion were null and void. The legal proposition embraced in this objection to the record is sound, and sustained by the authorities. Dean v. Nelson, 10 Wall., 158. The evidence shows that the judgment against Greenwood was signed February 12, 1863. By general orders No. 35, of Maj. Gen. Butler, dated April 27, 1863, registered enemies of the United States were ordered to leave the department. Greenwood was a registered enemy. On May 9th he was specially ordered to leave the city of New Orleans, and about that time he was taken by a military guard and forcibly put on board a schooner in the old basin, and sent to East Pascagoula, Mississippi, within the confederate lines, where he arrived on the 17th of May, and whence he was forbidden to return, and did not return until long after the sale of the property in question. No proceedings subsequent to the judgment were had in the case against him in the sixth district court until the 16th of December, 1864, when an order of seizure and sale was issued. The sheriff having returned that Greenwood could not be found, and that he was absent from the state, the court appointed a curator ad hoc, upon whom, according to the code of practice, notice of the seizure was served, and such proceedings were afterwards had as resulted in a sale of the premises in question. All these proceedings were in conformity to law, so that the only question now is, Did the absence of Greenwood from the state, under the circumstances mentioned, render them invalid and void? This question is conclusively answered by the case of La Sere v. Rochereau, 17 Wall., 437. La Sere was expelled from New Orleans by the same order by which Greenwood was compelled to leave. During his absence, proceedings were instituted against him by executory process on two mortgages for the seizure and sale of the mortgaged premises situate in New Orleans. The Grapeshot. Service of notice was made upon a curator ad hoc, and after the legal delay, the sheriff advertised and sold the premises. These proceedings were declared void. The finding and judgment must therefore be for the plaintiff, unless his claim is prescribed by the code of Louisiana. The defendant insists that the plaintiff's claim is so prescribed by sec 2809 of the Revised Code. This section declares "that all informalities connected with and growing out of any public sale made by any person authorized to sell at public auction, may be prescribed against by those claiming under such sale after the lapse of five years from the time of making it, whether against minors, married women or interdicted persons." It is obvious that if it was necessary, as it is conceded it was, to serve Greenwood with process before an order of seizure and sale could be issued, that the want of such service is something more than an informality; that without such service the proceedings resulting in a sale are void, and that the sale was not made by a person authorized to sell. Therefore this section of the code has no application to a case of this kind. The plea of prescription of five years is therefore not sustained by the facts. In accordance with the views expressed, the finding and judgment of the court must be for the plaintiff. NOVEMBER TERM, 1874. THE GRAPESHOT. 1. When the supreme court reversed a decree in admiralty and remanded the cause to the circuit court, with instructions to render a decree against the ship for the amount found due for supplies and repairs actually furnished and really necessary, and the supplies and repairs were furnished upon a bottomry bond which entitled the libellants to a premium of 194 per cent. for the voyage: Held, that such premium should be included in the amount to be decreed by the circuit court. The Grapeshot. 2. A bottomry bond contained no stipulation for ordinary interest, nevertheless it was held, that interest was recoverable at least from the date of the judicial demand. 3. Interest is not allowed in admiralty unless specially directed, but this rule so far as it governs the construction of the decrees of the supreme court only applies to cases where the decree of the court below in favor of libellant is affirmed. When such decree is reversed and the cause remanded, the circuit court may allow interest unless expressly forbidden to do so by the decree of the supreme court. 4. The fact that the ship against which the bottomry bond was asserted had been seized and sold on the libel, and the proceeds had remained for a long time in the registry of the court without producing interest, was no reason for refusing to allow interest on the sum found to be due. This cause comes up for hearing on exceptions to the report of J. W. Gurley, master. Mr. W. S. Benedict, for libellant. Mr. James McConnell, for claimant. WOODS, Circuit Judge. The libel was filed upon a bottomry bond for supplies and repairs furnished the bark at Rio in the spring of 1858. The cause had been once to the supreme court of the United States, which reversed the decision of the circuit court. The circuit court had rendered a decree for the entire sum secured by the bottomry bond. The supreme court was of opinion that some of the items in the bills secured by the bond were not subjects of bottomry, and that the actual necessity for some of the supplies and repairs was not shown. That court, therefore, reversed the decision of the circuit court and remanded the cause with instructions, "To refer the account for supplies and repairs to one or more commissioners, experienced in commerce and of known intelligence and probity, to ascertain under the instructions of the court, what portion of the supplies and repairs actually furnished to the ship was really necessary; and for the amount thus ascertained and approved by the court, to enter a decree for libellants." The parties selected Mr. J. W. Gurley as master, and the selection was approved by the court. The master took the testimony of but one witness, in addition to the evidence already in the record. This witness tes The Grapeshot. tified to facts which had occurred fourteen years before he gave his testimony, and the evidence in the record shows that he must have been mistaken in his statement of facts. The master concluded, and we think properly, that this new evidence did not substantially change the case as it appeared in the original record. The master reported that the principal sum due on the bond for supplies and repairs actually furnished the ship and really necessary, amounted to $4,392.25. 1. The first exception is to the amount of this allowance. The libellant claims that because Clark, the master of the vessel, was also a part owner, he was authorized to make a bottomry bond on the ship anywhere and for any reason. But it seems to me too late to review this question. If Clark was a part owner it must appear in the record, and the supreme court has decided that the whole bond cannot be sustained. It has, therefore, either found that Clark was not a part owner, or if he was, that he was not on that account authorized to make the bond unless there was a real necessity therefor. I regard this exception as raising a question already settled by the supreme court. 2. The second exception is, that the master did not allow the 19 per cent. maritime interest on the $4,392.25 which was stipulated for in the bond nor legal interest from and after the date of judicial demand, July 3, 1858. The master was not required to pass upon these questions. He has done what the order of reference required and no more. This exception must, therefore, be overruled, but this court will now determine the question for itself. In admiralty appeals, the supreme court never does allow interest as such. Hemmenway v. Fisher, 20 How., 255; Boyce's Ex'r v. Grundy, 9 Pet., 275; Phillips' Pr., 260. When in the opinion of the court interest should be allowed, it is included in the decree as a gross sum. Now the supreme court has directed specifically for what sum the decree in this case shall be, to wit: The amount found due for supplies and repairs actually furnished and really necessary. The bottomry bond, which is the basis of the libel, expressly provides that the libellant shall be entitled to "a premium of The Grapeshot. 19 per cent. for the voyage, in consideration whereof all risks of the sea, seizures, enemies, fires, pirates, etc., are to be on account of" libellants. By the terms of the bond, this premium is as much the due of the libellants as the principal sum loaned on the bond, and as there does not seem to have been any question raised in the supreme court of its allowance, if any part of the principal sum found was recoverable, and it is not excluded by the decree of the supreme court, we must allow the premium on the amount actually found due by the master. But it is insisted strenuously that as neither the bottomry bond nor the decree of the supreme court says anything about the allowance of ordinary interest, none can be allowed. Does the fact that there is no stipulation for ordinary interest in the bond preclude this court from allowing interest from the commencement of the suit, before which time the bond, if anything at all was due on it, was payable? The general common law rule is that the law does not imply a contract on the part of the debtor to pay interest on the sum he owes, although the debt may be of a fixed amount, and may have been frequently demanded. 2 Chitty on Con. (11th Am. Ed.), 950, and cases there cited. But according to the American authorities, interest will be allowed after a demand of payment, even of an unsettled claim, for goods sold and delivered or services rendered, from the time of the demand, and the presentment of an account or commencement of a suit is sufficient demand on which to found and from which to date a claim of interest. Barnard v. Bartholomew, 22 Pick., 291; McIlvaine v. Wilkins, 12 N. H., 481, et seq.; Selleck v. French, 1 Conn., 32; Gray v. Van Amringe, 2 Watts & Sarg., 128; Goff v. Rehoboth, 2 Cush., 475. Interest is allowed on liquidated demands in the admiralty as well as at law. The Swallow, Olcott, 334. In suits for seamen's wages, interest is allowed from the time of demand, or if no demand be made, from the commencement of the suit. Gammel v. Skinner, 2 Gall., 45; Sheppard v. Taylor, 5 Pet., 675. These authorities settle the principle, and there can be no |