
    Tufts & Hobart et als. v. T. J. Casey.
    Tito decision in the case of Lewis v. GerJce, 12 An. 828, aiik-inetl, to tlio eil'eot that the proceeding by sequestration, under the Act of 1826, against the property of an insolvent who has absconded, is a different and distinct proceeding from that under the insolvent laws for a forced or voluntary surrender.
    A creditor who has proceeded by way of attachment, prior to the proceeding by sequestration, acquires a privilege on the property attached, and a preference over the other creditors.
    PPFAL from the Fourth District Court of New Orleans, Price, J.
    
    
      Semmes & Labatt and G. LeGardeur, for opponent anil appellant.
    
      Benjamin, Bradford & Finney, Durant & Honor, Bonford, Singleton & Clack and Mott & Fraser, for appellees.
   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.

Same Case — Ox a Re-hearing.

Buchanan, J.

This was a proceeding by sequestration of the property of an absconding merchant or trader, by three of his creditors, under the Act of 1826 ; which Act was held by us, in the ease of Levois v. Gerke, not to have been repealed by the Act of 1855, relative to the voluntary or forced surrender of property.

The appellant, M. Abrams, had instituted a suit by attachment against Casey, previous to the sequestration issued in this suit, and had seized under said attachment, on the 22d of April, 1858, the household effects and furniture of said Casey, then in his residence on Canal street, in the city of New Orleans. The proporty thus seized was still under seizure when the sequestration was issued in this case. It was taken possession of, together with other property sequestered, by Henry Renshaw, appointed syndic at a meeting of Casey’s creditors, and was sold by him for the sum of $3,251 85, as appears from his tableau of distribution filed in court. The appellant opposed the said tableau, claiming to be paid the proceeds of the property attached by him, by privilege. From a judgment, refusing such privilege, Abrams appeals.

A preliminary question is raised in this court,, which was not made by the pleadings in the court below, to wit, that Thomas J. Casey was not a merchant or trader, within the terms and meaning of the statute of 1826.

The argument of the counsel of appellant on this point is, that it was not necessary for him to object to the proceedings on this ground; but that it should have been shown affirmatively by the sequestering creditors, that their debtor, Casey, was a merchant or trader.

We are of opinion, that it was for the appellant, or any other party interested, to make the specific objection, and thus to have given the plaintiffs in the sequestration, or the syndic appointed by“ the creditors, an opportunity to prove that Casey was in fact a merchant or trader, as they have sworn, in suing out the writ of sequestration. The question not having been raised in the court below, it might operate as a surprise upon the appellees, to allow it to be raised for the first time here, as no evidence can be offered in this court on the subject.

We proceed, therefore, to examine the merits of the controversy, on the assumption that the proceedings of appellees have been regular under the statute of 182G.

The case of Levois v. Gerke, 12 An. 828, is not to be understood as having assimilated the proceeding by sequestration under the sixth section of the Act of 29th of March, 1826, to a surrender, either voluntary or forced. That case was the subject of two decisions, as the report shows. In the first decision, it was held by the majority of the court, that the proceeding by sequestration of the property of an absconding debtor under the Act of 1826, came within the term of “ a forced surrender of property,” and that inasmuch as it had not been reenacted and incorporated in the Act of 14th of March, 1855, “ relative to forced surrenders and the mode of making the same,” it had been swept away by the repealing clause of the latter Act.

But two Judges, composing a minority of the court, were of the opinion that the proceeding in question was not in eifect either a forced or a voluntary surrender ; and of that opinion was a majority of the court, upon a re-hearing granted.

The doctrine, as finally settled in Levois v. Gerke, is, that the proceeding by sequestration under the Act of 1826, is a peculiar remedy, which supplies an hiatus in our preexisting legislation, and distinct from the insolvent laws, although pursued in the ulterior stages of the remedy, in a manner resembling the settlement of insolvent estates under the statutes relating to voluntary and forced surrenders.

We feel bound, therefore, to say, that the sequestration sued out by the plaintiffs and appellees, did not take away or impair the rights acquired by the appellant under his prior attachment.

The appellant, by his attachment, acquired a privilege on the property seized, which entitles him to a privilege and preference over the other creditors of Thomas J. Casey. C. P. 722; 3 Rob. 106 and 276; 6 An. 444.

The attachment had not ripened into a judgment, at the time of the sequestration. But the appellant has made, contradictorily with the appellees, proof of his debt satisfactory to the court below and to this court.

It is, therefore, adjudged and decreed, that the judgment heretofore rendered by this court herein, be set aside and avoided ; and it is now ordered, adjudged and de. creed, the the judgment of the District Court be amended as regards the appellant, Mordecai Abrams ; that the tableau of distribution filed by Henry Renshaw, syndic, be corrected, by placing thereon the said appellant as a creditor, for four thousand nine hundred dollars, with legal interest from 12th of April, 1858, until paid, and costs of said Abrams’ opposition in both courts, with first privilege and preference for three thousand two hundred and fifty-one dollars and eighty-five cents, proceeds of the property attached in the suit of said Abrams against Thomas J. Casey, and now in the hands of the syndic of Casey, appellee.

Merrick, C. J., took no part in this decision.  