
    
      S. J. PECQUET & AL. vs. W. GOLIS.
    
    Several creditors, standing in the same predicament, and seeking the same relief, may join in one application.
    Appeal from the court of the parish and city of New Orleans.
   Martin J,

delivered the opinion of the court. The petition states that the applicants are respectively creditors of Golis, who has obtained a respite ; that they are informed and believe he has fraudulently and clandestinely disposed of a great part of his goods, and is preparing fraudulently to depart from the state. They pray for his arrest, and attachment of his property. On this affidavit, the parish judge ordered the arrest and attachment, which were executed.

East’n District.

July, 1823.

One, who has obtained a respite, and meditates a removal, may be arrested and his goods seized.

When he is brought before the judge, his person and goods may be secured, notwithstanding a defect, in the process on which he was arrested.

Golis introduced witnesses to disprove the allegations in the petition—the judge ordered a valuation of the goods, but directed him to "remain under bail, with good and sufficient security, for the amount of the claims of plaintiffs, as detailed in the petition, not to leave the state or the jurisdiction of the court, until he has successively complied with the terms of the respite.” He appealed.

1. His counsel urges that creditors whose claims are not connected, have no right to cumulate their actions—11 Martin, 287.

2. If they sue him, in behalf of his other creditors, they must set forth their authority—5 Nouveau Denissart, 685, no. 9, Varbo Creance.

3. The petition must set forth the cause of action, and conclude with a prayer for relief, adapted to the circumstances of the case—2 Martin’s Digest, 156.

4. Except in the case of a voluntary surrender the creditor must select between arrest and attachment The remedies cannot be cumulated—Acts of 1817, 130, § 9.

5. The allegations are insufficient to warrant either—1 Martin’s Digest, 474, 480, 482, 512, Acts of 1817, p. 26.

6 The judge’s order for the arrest, should have stated the particular suit, in which surety was to he given—Id. 476, 480, 482.

7. The writ of attachment should not be at variance with the evidenee of the debt set forth in the petition—Id. 514.

I. II. This does not appear to be a regular suit, in which the defendant was to be called on to answer. It was an application at chambers, for surety, in the case of creditors whose debts' were not payable. It might have been made by the creditors severally, and we do not see how several of them, standing in the same predicament, and seeking the same relief, could not join in the application.

III. The petition concludes with a prayer adapted to the case ; the arrest of the debtor and the attachment of his goods.

IV. Persons who obtain a respite, fall into the class of bankrupts, Fallidos, and when they are suspected of meditating a removal, siendo sospchoso d fuga, may be arrested and his goods seized, ha de ser preso y sequestrados sus biens—Cur. Phil Fallidos, 3-23.

V. The allegations appear to us sufficient. The fraudulent intention to depart is sufficiently stated. The applicants swear they are informed of, and truly believe it.

VI. VII. The debtor being once before the judge, it was the duty of the latter to secure his person or his goods—or both; even if there had been any imperfection in the process, by which he was brought before him.

As to the question of fact, the discretion of the judge does not appear to us to have been improperly exercised. In a case like the present, fraud is presumed, and no great injury was done in holding the debtor to the security he had given.

When a debtor, who has obtained a respite, gives room to suspect him of an intention to depart, he cannot avail himself of the respite. He may be treated as a bankrupt—Cur. Phil. Esperas y quitas, no. 9.

Cuvillier for the plaintiffs, Trabuc for the defendant.

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