
    Seghers & Al. v. Courcelle.
    The Act of 28th March, 1840, abolishing imprisonment for debt, sect. 5, authorizing two creditors, having two or more judgments each, exceeding $800, to unite in a petition requiring the common debt- or, who they swear has assets, to make a surrender; also requiring that both creditors shall take the oath. It is not sufficient that one of them, having two judgments, alone shall make the affidavit.
    The first and oldest mortgagee, who purchases in the premises, is subrogated to all the rights under this mortgage, sufficient to repel a younger mortgagee, seeking to disturb him.
    Appeal from the parish court for the parish and city of New Orleans.
    This case comes up under a proceeding in pursuance of the 5th section of the 28th March, 1840, abolishing imprisonment for debt. It provides “ that whenever two or more final judgments, each for a sum exceeding $300 shall have been rendered against a debtor and execution issued thereon and returned “ no property found,” and the plaintiffs shall unite in a peti- [552] tion setting forth under oath that they have reason to believe that the defendant has property or rights, assets, &o., within the State which may be made available to the creditors, the court shall order such defendant to show cause within ten days why he should not pay such judgments, or in default of such payment, why he should not make a surrender of his property to his creditors, &c.”
    The plaintiffs, D. Seghers and the Louisiana State Bank, alleged they were creditors of Joachim Oourcelle, by three several judgments, each for more than $300, on which executions issued and have been returned, no property found. They pray that the defendant he ordered to show cause within ten days why he should not pay the amount of said judgments, or in default make a surrender of his property to his creditors.
    D. Seghers, one of the petitioners,
    made oath at the foot of the petition, “ that the facts contained in it were true; that he had reason to believe the defendant had property, rights or assets within the State of Louisiana, which may be available to his creditors.”
    The defendant excepted to the plaintiffs’ petition and affidavit. 1. That the debt of the hank had been settled by one Bernard De SaDos, and the suit and judgment discontinued so far as the bank was concerned.
    2. That the affidavit or oath is taken by but one of the plaintiffs, when the law requires both plaintiffs to unite in the oath; and also to state the reasons which induce them to believe the defendant has property or assets. He prays that the suit he dismissed.
    There was judgment on the exceptions setting aside the order, and dismissing the proceeding. The plaintiff, Seghers, appealed.
    
      D. Seghers in propria persona.
    
    1. The Act of 1840, requires that two judgments should have been rendered and the executions thereon returned no property found, and [558] that the plaintiffs should join in a petition, &c.; this is in the supposition that the judgments should he in favor of several plaintiffs, but when they are both in favor of the same plaintiff, the junction takes place ipso facto and such plaintiff is entitled to act alone. «
    
      2. Said Act of 1840, doesnot require that the sem’al plaintiffs (if several they are) should set forth under oath, &c.; but that they should join in a petition, and that this petition should be set forth under oath, &o., and it, therefore, suffices that their joint petition should set forth, &c., and that this petition be sworn to by either of the plaintiffs, because then and in such case, the joint petitions set forth under oath, &o.
    
    8. The right of action once accrued to the several plaintiffs, (if seVeralbe required,) and to each of them, cannot be taken from them or from any of them by the withdrawing of either of the plaintiffs from the suit.
    4. In Hillaudon v. Allard,, 2 La. Rep. 551, this court held that one may and can be subrogated to himself; why then should he not be considered as uniting with himself, when he invokes the only remedy the legislature has left him on taking away (since he obtained his two several judgments, and since they?./», had been returned no property found,) the remedy which was secured to Mm by the Insolvent Act of 1808, 2 Moreau’s Dig. 448.
    
      Eoa for the defendant and appellee.
   Martin, J.

delivered the opinion of the court.

This is a joint petition under the 5th sect, of the act, approved March 28th, 1840, “ abolishing imprisonment for debt,” to compel the defendant to pay the claims of the plaintiffs, or surrender his property to his creditors. The plaintiffs are appellants from a judgment sustaining the defendant’s excep[554] tion, on the ground that both the plaintiffs did not declare on oath, that “ they had reason to believe the defendant had property, rights or assets in the State, which might be made available to his creditors.”

The affidavit is made and sworn to by one of the plaintiffs only; and he swears that he has reason to believe, &c.; while the act under consideration requires, that “ the plaintiffs shall unite in a petition setting forth under oath that they home reason to believe the defendant has property, &c.”

It is clear the requisites of the law in this case have not been complied with. The law requires that it should be sworn, that two creditors have reason to believe, &c.; and as no one can swear that another has reason to believe, there must be two oaths, of two creditors. Here there is but the oath of one creditor. He necessarily swears to his own belief only: non constat, that his belief is shared by the co-plaintiff.

But the affiant has two judgments against the defendant, and he contends that ho is twice a creditor, which in Ms opinion gives Mm the capacity of two creditors. He urges that as this court held in the case of Millaudon v. Allard, 2 La. Rep. 551, one might be subrogated to himself; why he might notin the present case be considered as uniting with himself. We there held that the mortgage creditor who purchases the premises may repel a younger mortgage creditor seeking the sale of them, on the ground that the older mortgage still exists; because the first mortgagee cannot have a mortgage on property which has become his own. It is clear that in such a case, the older mortgage exists and retains its priority against the younger ones, which perhaps cease •to exist, because the sale under the first mortgage has left nothing for them to act upon. Were the premises purchased by any but the mortgage creditor, the vendee could exercise his right against a younger mortgagee by a kind of subrogation, in the same manner the purchase by the first mortgagee would subrogate him to his original right, against a younger mortgagee seeking to disturb him. From the decision in the above case it cannot be inferred [555] that a creditor of two judgments can unite with himself in an application for a remedy which the law grants only on the demand of two creditors.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed, with costs.  