before a court of error, but not otherwise." L. R. 2 Eng. & Ir. App. Cas. 20. This leltds immediately to the further remark that, even if the present appeal could be entertained, it would be altogether nugatory, for it does not reach the error alleged and complained of. That error, it will be observed, does not consist of any violation of law in any proceeding subsequent to the final decree against the stipulation. As long as that decree stands unreversed and unsatisfied the parties will be entitled to have it executed, and in the execution and levy there has been nothing erroneous in law. The error sought now to be reached inheres in the judgment itself, having been rendered, as is .alleged, against a woman, under the disability of coverture, so that if, under other. circumstances, for error in the process, or otherwise, occurring in matters subsequent to the decree of condemnation, an appeal might be taken, it would not open that decree for re-examination; for as it is itself final for purposes of appeal, it is conclusive until and unless an appeal from it is prosecuted within the time limited by law. Whether now, aftor thll.t time has elapsed, any mode remains for reaching the error which it is alleged lurks in it, either by a bill in equity or by a motion in the district court, according to the analogy of a. writ of error coram nobis, to set aside the judgment itself, or otherwise, are questions which do not arise upon the present state of the record, a.nd upon which no opinion is expressed. It is sufficient to say that upon the authorities referred to, it seems to me, after much consideration, that the present appeal must be dismissed for want of i urisdiction: and it is 80 ordered.
and others v.
and others v. SUN
(Oircu.t CO'Urt, E. D. Loui8iana. 1883.)
A new corporation which takes, as owner, all the and assets of an old corporation, (which is dissolved without providing for all its debts,) must pay the debts of the old corporation, at least to the amount of the assets converted.
(Ten cases united in one transcript of appeal, by consent, and argued and decided as one case.)
-Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
!lRUM V. MERCHANTS' MUT. INS. 00.
The only contest in this case is between libelants and the Home Insurance Company; all the other defendants having settled. The libel in each case alleges that libelants were respectively em· Tyler, in the capacities stated; played on board of and at the dates stated there were salvage services rendered by said lyler and her crew to various vessels in distress, a.s follows:
, October 25, 1872, to bark Brookwan. March 30, 1872, to steam-ship City of Galveston. April 16, 1872, to bark Moneta. November 13, 1872, to steam-ship Darien.
1 For which there wag respectively paid by the owners, agents, and l'epresentatives of said vessels and cargo to the Harbor Protection 'Company, of New Orleans, the owner of said Tyler, as follows:
'team-ship City of Galveston, ark Moneta, team-ship Darien, · Jark Brookwan,
00 00 15 85
The libels further allege that said Harbor Protection Company was, I at the time said services were rendered, and said sums respectively paid therefor, an unincorporated company, and & commercial part. nership, and the members thereof were certain insurance companies named in the libels, and among them the Home Mutual Insurance Company, which, it was alleged, is now (when the libel was April 23, 1878) consolidated with the Home Insurance Company. The libels further alleged that after this salvage money was paid to said company it was invested in city and state bonds, which the company, while it was insolvent, divided among said insurance com· panies in December, 1873; and that said company refused, and had refused to give libelants any part of said salvage money or bonds, of which they claimed their pro rata of one-half, or pay them anything on account of said services by them renllered. The suit is for libelants' proportion of said salvage money, respect. ively. The Home Insurance Company,. which was alleged to be consoli. dated with the Home Mutual Insurance Company, and itsp,redeces8or, was cited. The material allegation of the answer is as follows:
..... ... ... And the truth is that the Home Insurance Company was not in any manner interested in the Harbor Protection Company, and the Home Mutual Insurance Company was not consolidated with the Home Insurance Company, the respondent; and, further, that the Home Company is
an entirely new organization, and did not receive the Msets of the Home Mutual Insurance Company, and is not bound for any liability incurred by the Home Mutual Insurance Company,"
About the rendition of the services-that they were salvage services; that they were paid for as such to the Harbor Protectior Company-there is no dispute. Nor can there be any dispute as the Harbor Protection Company being an incorporated company, a: a partnership in which the insurance companies were the partnel This has been held by both Judges BILLINGS and WOODS, in oth cases, and may be considered as settled. Those judges found th an attempt had been made to form a corporation under the genel'! law of the state of Louisiana; and a copy of what was thought to 1; a charter is given from pages 169 to 179. This document, whicl was an attempt at making a charter, failed to become such, becam it did not provide means for winding up the affairs of the compa. at the termination of its existence, and which was an absolutely nece, sary provision under the law relative to corporations. See Rev. S La. § 685. This section declares: "Every charter of incorporatiou shall contain-First, - - .; second, - · .; third, · · OJ; fourth, - · .; fifth, - · - the mode of liquidation at the termination of the charter." This defect, the above judges held, under the authority of Field v. Conks, 16 La. Ann. 154, and the Workingmen's Bank v. Converse, 29 La. Ann. 369, was an absolute prerequisite · condition, which struck the instrument with nullity, as a charter, and made the concern an ordinary partnership; each of the companies, or partners, composing the same liable for its virile share of the debts of the company. If this question were open for review · there could be no doubt about the correctness of the decision. It is · purely one of Louisiana law; and in courts of the United States is to be governed by the decisions of the highest courts of the state. Theqnestion in this case turns on the fact as to whether the Home Company was consolidated with the present Home Insurance Company, or whether the present Home Insurance Company received the assets of the Home Mutual Insurance Company, and is bound for any of the liabilities of that company. RichardDe Gay, for libelants. Charles and Richard H. Brqwne, for defendants. PARDEE, J. If it (the Home Insurance Company) is bound for the liabilities of the old Home Mutuitl Insurance Company, then it this debqo the libelants, for there is no doubt the partnership Rtyled "The Harbor Protection Company" collected the salvage money,
l3RUM V.MEROHANTS· MUT. INS. CO.
which, under former decisions of this court, belonged to the libelants, and that the Home Mutual Insurance Company was a partner in the Harbor Protection Company, and as such partner was liable for its virile share of the debts of sa.id company. The evidence with regard to the liquidation of the Home Mutual and the organization of the Home shows that the real fact, of the forms with which the parties surrounded it, was that the'Bssets, business, good-will, and stock in trade-everything which 'could be relied upon belonging to the Home Mutual to pay and satisfy its outstanding liabilities-went into and constituted the capital and assets of the new Home. Calculations and arrangements were made as to the known liabilities of the old company, and some stockholders in the old company were allowed to withdraw their pro rata value of stock in cash j but the fact remains tha.t the capital of the new. company was exclusively made up of what was left of the assets of the old company. I have no doubt that everything was intended and carrned out in the best of faith, and I am inclined to think that if the debts due libelants for salvage moneys had been known that they would have been provided for. As thl3 Home took all the property of the old company, leaving nothing to pay the amounts due libelants, and as it took them, not as creditoi·s, but as owner, it seems clear to' of the old company, at least to the me that it must pay the amount of the assets converted. The claim of libelants-being hi' the nature of one for money had and received-would not be prescribed under the laws of Louisiana, where the obligation was created, and is one that' alight not to be considered stale in an admiraltY' court. . The district judge held that libehirits were entitled to recover, and I concur in his judgment in this caSG. In the view I take of the facts, I do not find it necessary to pursue the line of reasoning showing the liability of the defendants, because of the distribution made by the Harbor Protection Company to the Home Mutual, and the reo sponsibility of the Home because of the identity of its officers, stock.. holders, etc., with the old Home Mutual. " Let a decree be entered in favor of libelants in the same' terms' as that of the district court, and for all costs. ·,:i
,THE SOPHIA HANSON.-
(District Oourt, E. D. New York. March 24,1883.)
The court will not enforce an agreement to pay an ...i()nahle as towage made between the master of a schuuner aground and tht: tuIO that pulled her off.
SALVAGE-AGREEMENT TO PAY.
An agreement by such master to pay such sum for a salvage service is not conclusive, and is to be considered in connection with the other facts bearing upon the question as to the nature and value of the service.
Five hundred dollars was awarded as. a salvage compensation to a tug for pulling a schooner, valued at $10,000, off a bank in the harbor of New York, where she had grounded, on an ebb-tide, in fine weather, there being no dau. gel' to the tug, and the service taking only a few hours.
Beebe, Wilcox & Hobbs, for libelant. Hall c/; Harvey, for claimant.
BENEDICT, J. If this action was based upon a contract made be· tween the master of the schooner that grounded on the west bank, and the tug that pulled her off, as a contract for towage, the libelant could not recover, for the reason that the court would not enforce an agreement to pay $1,000 for a few hours of ordinary towage service, such an agreement being clearly unconscionable. But the action is not based upon contract. The claim rests upon a salvage service performed. In such an action the agreement of the master to pay $1,000 for the service is by no means conclusive on the question of the amount of salvage to be awarded. The agreement made is to be considered in connection with the other facts bearing upon the question as to the nature and value of the service, and that is all. Looking at all the circumstances, I am of the opinion that the master of the schooner was too liberal in his views of the value of the service rendered to his vessel. That service consisted simply in pulling the schooner off the west bank, where she had grounded on an ebb-tide, having missed stays. No danger was incurred by the tug in performing the service, nor any damage sustained. The weather was fine, and the damage to the schooner was not great. The value of the schooner and her cargo was about $10,000. I con.Reported by R. D. & Wyllys Benedict.