Tufts & Hobart v. Casey

15 La. Ann. 258

• Court: Supreme Court of Louisiana
• Decided: April 15, 1860
• Status: Published

Opinions

Com?, J.

On the 22d of April, 1858, Abrams, being a creditor of T. J. Casey, who had absconded from New Orleans, caused to be issued the first attachment, and property belonging to Casey personally was seized under this writ, which produced at the sale $3,251 85.

On the 27th of April, 1858, before Abrams had obtained judgment upon his claim, throe creditors of the firm of which Casey had been a member, filed a petition under the 6th sectiou of the Act of 29th of March, 1826, entitled “ an Act supplementary to an Act entitled ‘ an Act relative to the voluntary surrender of property, and to the mode of proceeding, as well for the direction, as for the disposal of debtors’ estates, and for other purposes.’ ” They represented that Casey was established in business in Now Orleans, as a merchant and trader, till about the 20th of April, 1858, when lie absconded, in order to avoid the payment of his debts, and pray for a sequestration of his property, and that his creditors may be called to appoint syndics, to be put in possession of his property by way of forced surrender.

The order was granted, a meeting was held, ami Henry Renshaw was appointed and qualified as syndic of the creditors of Casey.

A tableau of distribution having been filed by the syndic, Abrams opposed its homologation, and prayed that the tableau be amended by placing him as a creditor for $4,900, with five per cent, interest from 12th of April, 1858, and as a privileged creditor, to be paid lo the exclusion of other creditors, for the sum of $3,251 81, lo be paid out of the proceeds of the property that had been attached by him.

The District Court granted him his claim, but without any privilege, and ho has appealed.

Opponent maintains in this court, that previous to the passage of the Act of 1826, no law existed in Louisiana, empowering the creditors of a debtor, who had fled from the State, to seize his property and distribute it ratably among the mass of his creditors; that anterior to its enactment, an absconding debtor’s property was liable to attachment, and a privilege could be obtained by an attaching creditor, over others less vigilant.

That if the Act of 1826 has been repealed, it will follow that the law now stands precisely as it did prior to the ' passage of the Act of 1826, and the attachment of Abrams must be sustained and bis claim paid by preference.

Opponent admits that this controversy presents the same cprstious which arose in the case of Levois v. Gerke, reported in 12 An. 829.

This court, in that case, decided, on a re-hearing, that the 6th section of the Act of the 29th of March, 1826, (Session Acts, p. 140,) which provides for a sequestration of the property, and a meeting of the creditors of any merchant or trader who shall abscond or conceal himself, in order to avoid the payment of his debts, is still in force.

If the court erred in the interpretation given to the legislative will, by decreeing this statute to be still in force, it has been in the power of the Legislature to have corrected the error. Two sessions of the Legislature have been held since that decision, and the Legislature have not passed any Act repealing this statute. Under these circumstances we consider it unnecessary to examine again the questions determined in Levois v. Gerke.

2. As this statute is in force, its effect is to deprive opponent of the right to be paid by preference, as the first attaching creditor.

In Collins v. Duffy, 7 An. p. 40, this court said, it has indeed been often hold, that process of attachment subjects the property attached to the payment of the attaching creditor. But the principle supposes that the debtor has the possession of his other property for his other creditors. If he has made a cession of all his property to all his creditors, it has been always held, that the property attached follows the cession ; that the attaching creditor has no preference, but the syndic must distribute its proceeds equally among the creditors, if there be no lawful cause of preference.

In the present case, Abrams had obtained the attachment, but had not a judgment upon his claim at the time of the meeting of the creditors of Casey and of the cession. We are, therefore, of opinion that Abrams hasno privilege by virtue of his attachment. Marr v. Lartigue, 2 M. 98; Hanna v. Creditors, 12 M. 32; Fishe v. Vose, 3 R. 457.

3. Opponent asks whether the required proof is to be found in the record, to show that Casey was a “ merchant or trader,” within the scope and meaning of the Act of 1826.

In answer to this, it is sufficient to say, that the plaintiffs’ petition contains the allegation that Casey was a merchant or trader, and that opponent does not deny it in his opposition, but asks that the tableau may be homologated, after being amended according to his demand.

As this question was not raised in the District Court by the pleadings of opponent, the latter cannot raise it in this court.

Judgment affirmed, with costs of appeal.