"bué à leur débiteur." Delangle, Sociétés Commerciales, Vol. I, page 17. This learned writer cites the various articles of the Code on which effect is given in our modern law to this principle, page 18. lbid accordingly, the highly favored hypothec of the wife of an individual partner cannot, during the society, be made to attach to her husband's share of the partnership property. The Company alone can grant rights over the property. This was decided in the case of Brodie v. Bestel and others, already referred to. The same has been decided in France. Cour de Paris, 17 Juillet 1830, Delangle, supra. The grounds of the Judgment are very clearly put by the Court: "attendu que du"rant l'existence d'une société, la propriété "des objets qu'elle possède réside sur la tête "de la société, considérée comme corps moral, 66 et que nul des sociétaires n'a de droit in"dividuel ni sur tous, ni sur chacun des ob"jets en particulier; qu'à cet égard, tout, jusqu'à la dissolution de la société, se réduit en leur faveur à un droit eventuel, ou "même à une simple expectative. This judgment was confirmed on appeal. 10th May 1831. Ibid. That the partnership constitute a person, totally different from and independent of the individual associates, is laid down by TROPLONG, referring to the articles of the Code, in terms equally clear. "Société " article 1832 C. C. § 65, &c., &c. Towards the close of his commentary he says $80" ceci nous "conduit à cette vérité palpable, à savoir, que "le créancier particulier d'un associé ne pour"rait faire saisir les effets de la société sous "prétexte que son débiteur y a une part indi"vise. Il doit patienter jusqu'à la liquida❝tion, et, en attendant, prendre des mesures "conservatoires au moyen d'oppositions entre "les mains de la société, ou d'arrêts sur les "bénéfices à partager annuellement, &c., &c.', It appears to us that those eminent writers have given a correct exposition of the law. We, therefore, think that the consent to mortgage given by Besnard was given a non domino; consequently that it was altogether invalid and inept. It has been argued that, assuming that the mortgage was originally ineffectual as being granted by only one of the partners, it was subsequently rendered valid by the recognition and ratification of Duval the other partner. Giving our best attention to all the facts, we are unable to find in the proceedings anything at all approaching to a ratification. on the part of Duval. It is therefore unnecessary to consider whether such act originally null and void, as the act of one of two partners, was legally susceptible of ratification by the adhesion of the other partner. The appellant has submitted that the transaction between Besnard and Duval was not a partition but an act of sale. But what then? Every act between the parties which puts an end to the indivision has the same legal effects as a partition, be it a a sale or any other transaction. DEMOLOMBE, "Successions," Vol. V. p. 278. Hewetson v. Barry & others. 26th April 1872, Piston's Reports, page 30, in this Court. We need not multiply authorities on this point. But holding, as we do, that the mortgage by Besnard over one half of the Estate was null and void, the ground is cut from under the appellant's feet, and it is unnecessary to pursue this matter farther. The appellant put forward some arguments to show that the sale by Besnard to Duval was in fraud of his, the appellant's rights. We find no ground for this allegation. The partnership was not secret, it appeared in the books of the Conservator of Mortgages, when the deed of the 1st of June 1863 was transcribed. The dissolution was gone about openly and fairly, it appeared in the Transcription Office. Rougé, as a creditor of Besnard, might have protected his interest by insisting that nothing should be done as to the dissolving the partnership and dividing the property unless in his presence, and he might have attached the price paid by Duval. he remained silent all the while, till after the lapse of years he raised those questions, under the present contredit, in the distribution of the sale price of " Clairfond." But Having thus considered all the questions which appear to us to be material for the decision of the case, we have arrived at the conclusion that the appeal must be dismissed; the Master's judgment of the 26th May 1873 is affirmed and also the Master's judgment of the 1st October last. As to the costs of this appeal, and any other costs not disposed of by the judgments of the Master which we have just affirmed, we order that Rougé's account of expenses under the first appeal and the of the respondents under this appeal, be given in and taxed, and when these are before us we shall dispose of the question of costs. On the motion and statement of Mr. Guibert for the defendants that the parties had not been able to come to an amicable understanding as to the division of the water in the river below the third mill wheel, the Court order the dam complained of, if not already removed, to be removed within forty eight hours; and the plaintiffs to make application forthwith to the Land Court for a division of the water in the river from the point where the overflow, from the third mill wheel, falls into the bed of the "Belle Eau," and this before final Judgment. E. PELLEREAU,-Of Counsel for Plaintiffs. E. EDWARDS, Attorney for the same. L. Cox, Acting Substitute Procureur & Advocate Gen.,-Of Counsel for Defendant. J. BOUCHET,Attorney for the same. 26th Febeuary 1874. THE COURT. (after consultation). In this case the Counsel for the Government, the Acting Substitute Procureur General, has consented that the facts alleged by the plaintiffs, as the foundation of their demand, shall be assumed as true; and on those facts so admitted has contended that the plaintiffs must be put out of Court. After fully hearing the Counsel on both sides, we are of opinion that the action cannot be maintained. The plaintiffs seek to recover a very large sum of duty (£12,955.7.2) paid by them, without complaint or reclamation during a period of 12 years, viz: from 1st April 1862 to 31st March 1872, on the importation of rum and red wine, part of which was consumed by the troops in Mauritius under a contract of supply, dated 31st March 1862. By that agreement the plaintiffs undertook to furnish the canteens with wine, beer, &c., to be supplied" at such fair and reasonable "markets rates respectively as shall be fixed "by a board of officers, who shall fix quarter prices obtainable from the Chamber of Com merce, or the sworn brokers' Rooms, and shall decide on the quality and also shall supply the troops with rum at so much the "small and large glass, &c." The plaintiffs contend that they are entitled, under Ordinance No. 8 of 1854, to reclaim the duty paid by them on their importations. In the table of exceptions from duty, appended to that law, are enumerated; "Provisions "and Stores of every description imported or supplied for the use of Her Majesty's "Land and Sea forces, or for the Colonial "Government." Even were we to assume that the terms of this law cover wine and rum, the plaintiffs are, at the outset, met with the difficulty of recovering back money voluntarily paid by them, without objection, for so many years. A condictio indebiti is always a difficult suit, for the plaintiff seeks to undo what he himself has done; and although it is sometimes said that the distinction between payments made errore facti or errore juris is now put an end to by the Code, we are scarcely of that opinion. But waiving difficulties, more or less speculative, we think that under the contract and the facts existing here, no such claim as the present can be maintained. It appears to us that, as the prices of the wine were to be fixed by a board of Officers taking the current prices of the day as their guide, it was contemplated that the import duties on the admission of the wine in the Colony had been paid as in the case of the wines on the prices current of the period. As to the rum, the prices paid at the canteen are admitted to have been extremely liberal, and to add, to that highly remunerative price, a remission of the duties on import, would, in our opinion, be not only without warrant in the contract, but in opposition to the understanding of the parties of their own contract, and in the circumstances quite unjust. It will not escape attention that the money so paid has been bonâ fide received and spent by the Government, and to order its repayment now would be to upset the budgets for the last 12 years and to do violence to one of the best established principles of law in question of receiving back money, voluntarily paid and received, and spent in good faith. But further, the plaintiff's case is not, we think, within the clause in Ordinance 8 of 1854 noticed above. The rum and wine in question, though ultimately partly supplied to the troops, was imported by the plaintiffs for their general purposes. They held the usual licenses for sales of spirits &c., &c, and kept a store or shop At the trial, reference was also made by the plaintiffs to the Ordinance No. 30 of 1865. We are not able to see its bearing on the present dispute. The duties imposed by Ordinance No. 9 of 1854 are by § 2 to be levied and received under the Regulations contained in Ordinance No. 8 of the same year. Now, by § 66 of that latter Ordinance, any duty on custom which has been overpaid, even if it shall appear to be judicially established that the sum had been charged under an erroneous construction of the Law, shall not be returned after the expiration of three years from the date of such payment. Therefore the case is dismissed with costs against the plaintiff. Before His Honor Sir CH. FARQUHAR SHAND, KNT., His Honor Mr. JUSTICE BESTEL, First E. GALLET, Of Counsel for Plaintiff. L. Cox,-Actg. Subt. Proc. Gen.,-Of Counsel for Defendant. J. BOUCHET,-Attorney for the same. 4th March 1874. A judgment of adjudication of the 25th of April 1862 pronounced by Victor Esnouf, District Magistrate of Port Louis, awarded to the Colonial Government for Railway purposes, a portion of ground of the extent of 980 square toises belonging to Hippolyte Le Mière, and Philippe Gaston Martin Moncamp the father, and then guardian of the plaintiff, for the sum of £454.3.6 or $2270.81. That sum was stipulated payable after transcription of the said judgment, and upon a certificate of the Conservator of Mortgages. The judgment of adjudication was transcribed on the 4th of June 1862, and a certificate was delivered by the Conservator of Mortgages establishing the fact that the two Inscriptions, encumbering the above plot of ground, had been erased. This two-fold condition of the judgment of adjudication being realized, might not the Government have been compelled by the owners of the land to pay its purchase price? for greater safety's sake, however, we notice that the intervention of Mrs. Le Mière was required. In the notarial discharge given by her husband, Mrs Le Mière intervened and expressly declared that she renounced her legal mortgage; whilst on his side Martin Moncamp in the same Inscription of the 10th of September 1863, duly registered, declares in presence of H. Le Mière, the then subguardian of plaintiff, that as far "as the legal mortgage which his other child66 ren, still under age, (of which the plaintiff was one) may have against him, it has "been erased on the "Belle Carrière " Estate "(of which the plot of ground parted with "formed a part) and restricted to another property "Le Souffleur", in compliance "with the resolutions of the family council "of the said minors of the 28th of June 1862, "duly registered, and homologated by the "Supreme Court on the 18th of July, same year. The plaintiff, born on the 1st of February 1844, became of age on the 1st February 1865, but took only on the 22nd of March 1865 (or 22 days after the delay for inscribing had expired) an inscription for the principal sum of $7,790 & 79: and later, on the 3rd of August 1865, then being of age, he ceded priority to the Crédit Foncier of Mauritius on the "Souffleur" and thus deprived himself of the possibility of being paid the amount of his legal mortgage on that Estate. The object of this action is clearly to repair the wrong he has sustained through his own laches. If we refer to article 12 of Ordinance No. 57 of 1860, expressly enacted to facilitate the transfer of land for public purposes, we find that "all the privileges and mortgages whe"ther conventional, judicial or legal, are to be "inscribed within fifteen days after the tran scription of the deed of sale: failing which "within such delay, the land sold shall be free "from all privileges and mortgages whatsoever, "without prejudice to the rights of wives, "minors and interdicted persons, upon the "amount of the compensation, so long as it "shall not have been paid or as long as the "Ordre" shall not have been finally deter"mined amongst the persons interested." Unfortunately for the plaintiff, he came in with his alleged claim long after the purchase price had been paid, not to his guardian, but to his father in the latter's own right. to set aside the judgment of homologation of this Court. This is a very startling position, but there is no absolute necessity for us to give a formal decision thereon, as we find that there is much more in the cause adverse to the plaintiff's contention; and it was further contended that article 12 of Ordinance No. 57 of 1860, applied only to voluntary sales, and not to the forced sales, such as the one before the Court, contemplated by article 57 of that Ordinance, which article requires in such cases "that the price or compensation AGREED to, or fixed in terms of the Ordin"ance, and consigned as aforesaid, shall be "paid to the party or parties having right to "it after the PROPER STEPS shall have been "taken for CLEARANCE of mortgages." 66 In the first place, there being no opposition from any quarter to the payment of Gaston Martin Moncamp's share of the purchase price, there was no necessity for the consignment of that price. 20. The Ordinance is a very special one and complete by itself. It has traced out the formalities to be observed for the clearance of mortgages on land transferred for public purposes. It requires, by article 12, that the deed of sale be transcribed, conformably to article 2181 of the Civil Code-and that all privileges, mortgages, conventional, judicial or legal, be inscribed within fifteen days after such transcription. Failing inscription within such delay, the land to be free from all privileges and mortgages whatsoever, saving however the rights of minors upon the amount of the compensation, so long as it shall not have been paid, or the "Ordre" not closed. |