
    
      DREUX vs. HIS CREDITORS.
    
    East’n District.
    
      Jan. 1824.
    Appeal from the court of the third district.
    The ten days allowed by law for filing an opposition to the appointment of syndics to an insolvents estate commence running from the day on which the proceedings, had before the notary for that purpose, were closed.
   Porter, J.

delivered the opinion of the court. At a meeting of the creditors of the insolvent, before a notary, two persons, viz:-L. Wiltz, and Ls. De. Ferrit, were appointed syndics by an apparent majority of the voters. An opposition was subsequently filed in the court where the proceedings originated, stating that the nomination was irregular, and that the persons really appointed, were Jaques Dreux, and Pierre Lacoste. This opposition being sustained, so far as it respected Feit, rrby the Judge of the first instance, this appeal was taken from his decision.

The first question which the cause presents is to the time when opposition should be made. The meeting of the creditors took place on the 7th of May, and the proceedings, which ended in the nomination of syndics, were closed on the same day. On the 12th a proces verbal of the deliberations was filed in court, and on the 19th the opposition was filed. This last step, it is contended, was irregular, as the law directs it shall be made within ten days from the appointment.

Our view of the case will be best understood by quoting the words of the statute, under which the present difficulty has arisen. The act prescribes "that in case, after the appointment of syndics, any of the creditors of the insolvent debtor should deem necessary to oppose it, on the ground of some fraud having been committed by the said insolvent debtor, or of the appointment not having been legally niade, he shall within the ten days next following the appointment of said syndics lay before the court, which has already taken cognisance of the case, his written deposition stating specially the several facts of nullity of said appointmient."

Our enquiry then must be directed simply to ascertain when the syndics are appointed as it is clear that the delay to make opposition runs from that time. We think the appointment takes place from the moment the will of the majority is pronounced, and that the legal proof of that fact, we consider to be the closing of the proceedings before the notary. If we do not take this as the moment at which the nomination is made we have been unable to see at what other time it is effected, for if the syndics are not appoiuted then, they are not so, at any future time, nothing further remaing to be done by those in whom the law has vested the power of making the selection. The statute has provided, in the section preceding that just quoted, that it shall no longer be necessary to have the deliberation of creditors in relation to syndics, homogolated. Nothing therefore being required for the appointment, but an assertion of the will of all the creditors, or a majority of them, in the mariner prescribed by the act of the legislature, we are bound to say the persons designated as syndics are duly appointed the moment that will is pronounced.

In opposition to the idea we have just expressed, it was urged in argument, that the delay given to creditors to oppose the nomination can only run from the time the proceedings are returned into court, because no opposition can be filed until that event takes place, and as ten day may in many instances be too short a time for the notary to copy the proceedings, or as he may be prevented by sickness, or other circumstances from doing so, the creditor woul be deprived of an opportunity of making opposition. This inconvenience, if it really existed, can but rarely happen in cases peculiarly circumstanced, and of course do not authorise us to take that now before us, in which no such accident has occured, out of the general rule. But the inconvenience is, in truth, altogether imaginary. The cause is pending before the court, while the proceedings are going on before the notary, who is for this purpose the officer of the tribunal in which the insolvent has filed his petition for relief. Nothing therefore prevents any creditor who is dissattisfied with the nomination, from filing his opposition within the legal delay, altho' the proceedings are not returned, it is no objection to such a measure that the court cannot act on it, until the proces verbal of the deliberation comes up, because this is but the commencement of a suit which is to be tried on the proof the parties shall afterwards introduce.

It is contended that the vote given by one of the creditors must be entirely disregarded, because it is not supported by such an oath, as the law requires If the vote was not accompanied by the proper evidence, it was illegal, and illegalities must according to the provisions of the act already cited, be opposed within ten days or we cannot notice them: if not done within that time, it is the same thing as if not done at all.

Seghers for the plaintiff, Morel for the defendant.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed, that the opposition filed to the nomination of Leonard Wiltz, and L de Ferrit, as syndics of the estate of Francois Dreux. be overruled, that the nomination of said Wiltz and Ferrit, as syndics to said estate, be confirmed, and that the appellee pay the costs of this appeal.  