Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-10-29

10, mas Tue AeAb PA'SS~
Treasury and the principle is the same
in the case Of s house.
It was always so held In France, before
the Code, by different judgments re-
ported by MORsAc and TOURNET: and
the legislation Of the Republic, as well
as the Code. adopted this law. In fact,
SAYS PERsIL. architects have their PriVi-
lsge ONLY in 80 far rs res pTetiossOT Jdctd
stand 5 the property is made more val
liable, the preference given them cannot
prejudice the other creditors, because,
where the value Of the ameliorationsh has
been deducted, their security remains
| lust what it was before they were made.
BY the Roman law, n who lent
/ money, to be used in building q house,
/ bad a taeit lien on it when built: D q
| landlord who leased 8 house had q lien
| for the rent o n furniture placed in 1t by
the lessee. At first this wa so only in
old and new Rome, their suburbs D
adjoining territory but Justinian ex-
tended It to the Provinces.
We remember that it was q question
in a suit in which we were some years
since employed in Louisiana, whether 3
firm in another State had a taeit privilege
as against an attaching creditor, upon an
engine sold by it to S sugsr-plsHter on
credit, and put up in his mill, whereby 1t
| had become an immovesble Tor what we
| call a fxture). The decisions in France
are against the privilege those in Bel
GUM sustain 1t.
A singular and striking instance OF the
uncertainty Of o. law, and its little re-
gard to principles in regard TO liens is
found in the fact that the courts In differ
ent States disagree upon the question
ybetber. when q vendor Of land Ia 3
| tscit lien upon it for the purchase money,
for which he holds the purchasers nOte,
and ne assigns that note to another for
| value, the assignee @. the note is also
/ entitled to and can enforce the lien; in
! other words, whether endorsing the note
assigns the lien. The Supreme Court Of
| Arkansas has decided that it does not,
not upon any principle, but by stating
! the decisions in other states, an~dRdopting
the doctrine which, it thought, had the
weight OF authority on its side.
Now the Roman Law held that when a
creditor assigned his credit, he trans
ferred the debt with sl its prerogatives,
and caused his assignee to succeed him in
onria .jyra. The Code Napoleon, Art.
1922 provides that the sale or assign
ment Of 8 credit comprises the sCcesso-
| ries Of the credit, such as securities, guar
antses, privileges and hypochecstions.
| And, art. 2lI2), that assignees Of privi-
Legged debts exercise all the rights OF
their assignors, in their stead and place.
Wherefore PERsIL says that the assignee
! Of the vender would not succeed TO all
the vendors rights, IL he did not obtain
that Of prevailing over all the other cred
itors and the Iessees Of the land.
BY the assignment OF the debt or note,
the assignee, he says, succeeds to the
creditor; he not only has all his right,
but is himself nothing else thanthe cred
itoF, has the same titles, and is the ven
dor a. his assignor was. at is the same
debit PoTHIER says, in his Treatise on
the Contract OF Sale, (which passes
/ from the assignee, who Is, properly
| speaking, only the ~procurGtor in rem
sIam OF the creditor who cedes the debt
to him. A creditor, says PERsIL, cedes
and transfers his rights to another. This
| transfer is absolute, it contains every
/ thing that the claim is snd imports in the
/ hands Of the FIRST holder. All hypothe-
cations and ali other guarantees pass to
the assignee II the assigDor were s ven
der, bis right OF action resolut0ry to
cancel the sale) the pact Of re-purchase,
the action in rescissiOn for cause OF in
adequate price or failure Of payment, all
belong to the assignee and may be eKer-
cised by him.
The subject is much too large to be
treated Of with any fullness in a newsps-
per article, nor did we design to do more
| than TO offer a few suggestions to those
whose business it is to amend the law
and we have had particularly in view
] the liens Of mechanics, m~Rterial-men,
farm and plantation lsbourers and mer-
chants.
A great and fatal i%nsuniciency and de-
feet in our Law is in the mode Of pro-
cedure in suits to enforce liens, especially
when there are concurrent or conflicting
liens, arising from different causes, and
Of different ranks, upon the same prep
erty. Our legislators should adopt as to
these the Admiralty practice, making the
suit a proceeding strictly in rem, against
the thing itself, and not in persoRdm,
whether it be a movable or immOvea-
bic ia which suit al parties claiming
liens or privileges, for any Cause what
ever, should be called 10 intervene, and
their respective claims being msrshslled,
the property should be sold by decree, Tor
the satisfaction OF the claims in the de-
cided order OF preference, or pro rata, as
the case might be. There should be the
same proceeding for liens Of all kinds
and whenever property is attached for q
debt, that case also should proceed in the
same manner, and sll persons claiming
liens be called to come in and have theil
claims adjudicated.
No Common Law proceeding can dc
Justice 10 such cases. In the Admiralty
which is but the Civil law procedure
Justice Is done to all, and that speedily.
The process should be as in the Admi-
rally, and, in the case OF movable prop
srty, seizure upon the process allowed on
the came terms. We do not undertake
TO give the details Of theprocedure. That
any lawyer familiar with the practice
can do; but a general statute 10 regard
to liens, covering the whole subject and
dicesting it upon principles common to
those of every kind, would need great
consideration and q thorough acquain-
lance with the whole subject, which few
men have, and which va sssquite aware
we have not.