
    DAUPHIN & AL. vs. SOULIE.
    Three-fourths of the creditors on the bilan, are necessary to forced a respite.
    Appeal from the court of probates, of the parish and city of New-Orleans.
   Mathews, J.

delivered the opinion of the court. In this case the appellees proceeded against their creditors, for the purpose of obtaining a respite, which was accorded to them by a number of persons whose names were placed upon their bilan as creditors; and who appear- ed at the meeting, which took place according to the order of the court, before the notary public therein designated. The proceedings Three-fourths of of the case were regularly homologated, without any opposition by the preseal appellant; whether he had been cited in the case is not shewn by the record; in which, however, his name appears as a creditor, and also as appellant.

East'n District.

March 1825.

The case is brought up without statement of facts, or bill of exceptions, and errors are assigned as being apparent on the face of the record. The appellant’s right of appeal is opposed by the counsel of the appellees, as not being a party to the suit, and not having appeared and made opposition to the homologation of the proceedings which were had before the notary. If he were not cited in the manner prescribed by law (and it is not shewn that he was) he cannot, with propriety be considered as a party in the action. But it is clearly shewn, that he was at the time of instituting proceedings against their creditors by the appellees, one of those creditors. In conformity then with the doctrine on appeals as established by Partida 3, 23, 4, he has a right to sustain his appeal; and we do not believe that this right ought to suffer any derogation, on account of no opposition having been made by him to the homologation of the proceedings.

The record shews clearly that no express consent to the respite asked by the appellees, was given by a majority of the creditors, equal to three-fourths in number and amount; if this number and amount be estimated according to the bilan, and not in pursuance of the number of those who actually appeared at the meeting, and swore to the credits. A respite is a privilege granted to a debtor, and always derogatory to the rights of creditors who are in a minority, by changing their contracts without consent on their part. Effect should not be given to it, unless obtained under strict observance of law. We are of opinion that to count absentees amongst the number of assenting creditors, would not be in conformity with the letter and spirit of our law which regulates respites.

The fair presumption is, that a creditor who does not appear at a meeting, intends to assent to no change or alteration of his rights, but means to hold to his original contract.

In this view of the subject, it is evident that in the present case, a legal majority of the creditors have not granted the respite. The judgment is, therefore, in relation to those who have not assented thereto, erroneous and void, as shewn by matters apparent on record; and as it may whilst standing unreversed, injure the appellant.

Seghers for the plaintiffs, Dennis for the defendant.

It is ordered, adjudged and decreed, that as to him it be avoided, reversed and annulled, and that the appellees pay the costs of this appeal.  