
    
      BOISSIER'S SYNDICS vs. BELAIR & AL.
    
    Appeal from the court of the fifth district.
    A bona fide creditor of an insolvent, may, when sued by the syndics, plead in compensation, a debt due him previous to the insolvency But he must prove the period when he became creditor, by other evidence than that of the insolvent.
   Matthews, J.

delivered the opinion of the court. In this case, the syndics sue together with the representatives of the wife of the insolvent, to recover a sum, claimed from defendants, as principal and surety on account of a purchase made by the former of of land, sold as belonging to the community of acquests and gains of aid Boissier and his wife, for the price of 1060 dollars, payable in three equal annual instalments, and on the first three of which becoming due, this suit was instituted.

West'n District

Aug. 1823.

In the answer, compensation is pleaded on the part of Belair, by attempting to set off a note of hand against the plaintiff’s claim, executed by Boissier to another person, and by him transferred by endorsement to said defendant ; and also, the benefit of a judgment which Bijeau expected to obtain on a note of said Boissier, which the latter had failed to pay in bank, the former being subrogated, on paying the same to the agents of said bank, and on which he had commenced suit; by assignment to the principal defendant in the present action. Judgment was rendered for the defendants, from which the plaintiffs appealed.

In the course of the trial in the court below, when the instruments of writing were offered in evidence by the appellees, to support their plea of compensation ; the plaintiffs' attorney objected to their admission, unless they were supported by proof of the real time at which the transfer was made, in order to establish the fact of said alienation having taken place, previous to the failure of the insolvent. Being over ruled in their motion, requiring additional evidence, by the court, they took an exception to its opinion, which comes up with the record ; and must be first considered. It is believed that a bona fide creditor of an insolvent, when there are mutual debts existing between the parties at the time, and previous to such insolvency, may plead his claim in compensation to any suit brought by the syndics of the insolvent In the ordinary trading and commerce between men, when no suspicion is raised, by a failure of either of the parties, an endorsement made in blank, or to which a date is affixed will be considered as regularly done, and require no other proof to aid its validity.

But in a concurso, the creditors are considered as litigating with each other, and are bound to establish their claims against the insolvent by other and less suspicious testimony, than that which arises from his acknowledgments, or from instruments under private signatures, which can be anti-dated with so much facility. See Febr. p. 2, b. 3, ch 3, no. 33. Immediately previous to failure, in tumpo inabil, and much more so after failure, no alteration can be made in the situation of the creditors of an insolvent, so as to give any one or more of them an advantage over the rest; this might be effected if his debtors were permitted to acquire claims against him, and plead them in compensation.

Of this the defendant, in the present case, seems to have been well convinced, for the transfers bear date prior to the cession of goods by Boissier; but as they may have been anti-dated, and as in cases of failure fraud is properly presumed; there can be no doubt of the propriety of compelling the appellees to support the claim of compensation, by proof of the actual time at which the debts, on which they rely, were transferred.

There is a circumstance peculiar to this case, as appears by the evidence. One of the transferrors, by his attorney in fact, W. L Brent, offered to prove himself a creditor of the insolvent to a large amount some time after the date of the transfer to his co-defendant. It is possible that this latter claim may have been on account of some other dealing between him and the insolvent. If it be for the same claim, it amounts to a proof of its illegality, admitting the alienation of it to have taken place at the time purported by the date of the transfer. If it were a good and bona fide claim against the estate of Boissier at the time it was offered, then the transfer must have been anti-dated. It is enough to raise suspicion in this case, independent of the general principles of law, which require the date to be fixed by proof, independent of the writing itself. We are clearly o opinion that the judge a quo erred in refusing to require the proof, insisted on by the appellant.

Baker for the plaintiffs, Brownson for the defendants.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed ; and it is further ordered and decreed, that the cause be remanded to the court below, with instructions to the judge thereof, not to admit the claims pleaded in compensation, unless they be proven to be bona fide, and to have been transferred in proper time, by evidence other than that which appears in the transfer itself. 
      
      Porter, J. did not join in this opinion, having an interest in the insolvent’s estate.
     