
    
      KENNEY & AL vs. DOW.
    
    East’n District.
    
      Jan. 1822.
    
    To an alienation, fraud in the ali-enor, knowiege in the alienee, and injury toa third party, must be shewn,
    Appeal from the court of the parish and city of New-Orleans.
    Pierce, for the defendant.
    Timothy Dow being a creditor of Nathaniel Olcott, to the amount of $ 1800, or upwards, made an agreement with Olcott, by which his effects and stock in trade, in a grocery store, were to be sold to Dow, and credit given according to the appraised value.
    Accordingly Dow and Olcott, assisted by the clerk of the latter, having estimated the property at $ 1400, a bill of sale was executed on the 2d of March, 1821, by which, in consideration of that sum of $ 1400, which Olcott acknowleged to have received, he transferred all his interest in the business, conducted by him in No. 15, Toulouse-street. Dow took possession, Olcott’s sign was removed a few days after, and the affair so slept until about the 9th or 10th of the next month of April, when I. W. Kenney, L. Paimboeuf, and G. C. Forsythe, representing themselves as creditors of the said Olcott, petitioned the parish court to the following effect:—
    They complain that Nathaniel Olcott has, within these few days past, manifested symptoms of a deranged mind, and in consequence of the improper persuasion of T. Dow, one of his creditors, he has assigned, transferred, and sold the whole of his effects and stock in trade, to the said Dow, and that inasmuch as the said sale is without any good consideration in law, and fraudulent against all the creditors of said Olcott, they pray process of sequestration against the said property, and that provisional syndics may be appointed to take charge of the same; that Dow may be cited, and the sale aforesaid be rescinded and annulled.
    The plaintiffs then made oath to their alleged claims. The sequestration issued, but was suspended upon motion. T. Dow having then filed an answer, being a general denial, the cause came on for trial. The testimony being heard, the court below decided, that N. Olcott was not insane: that there was no undue influence or persuasion exercised by Dow. but that he acted without fraud, and gave a bona fide consideration; yet as Olcott was at that time unable to discharge his other debts, as alleged and sworn to by the plaintiffs, the sale is annulled, as in fact, made in fraud of creditors.
    
      From this Dow appeals, and avers, that it could not be enquired into in the present case, whether Olcott was able or not to pay his debts—1st. Because only one of the plaintiffs proved himself a creditor, and one alone cannot sue for a surrender of his debtors property, and a rescission of all previous acts. See Civil Code, 294, sec. 168. For a forced surrender, there must be all or some of the creditors to require it; and though a debtor be unable to pay his debts, one creditor has no right to wrest property out of another creditor’s hands, whatever the mass of the creditors might be able to do, if they sued, to have it brought into the general fund. 6 Martin., 577.
    
    2. Because there was no allegation of Olcott’s insolvency, nor was it sworn to, and therefore it could not have been put in issue. The allegations were insanity in Olcott, and undue influence exercised by Dow. It is indeed added, that inasmuch as the sale is without any good consideration in law, and fraudulent as to all the creditors of Olcott, it ought to be rescinded; but the reason why fraud is not alleged, and the sale being faudulent, can only he a conclusion from some previous allegations.
    3. Because Olcott was never made party to the suit, nor cited to appear, though his rights were to be so vitally affected by the judgment rendered; it was not pretended that he had absconded; he was known to be in the city; he was recognised by one of the witnesses on the trial, as being present (which shews the nature of the present cause) yet as he was never made party to the suit, no judgment of sanity or insanity, of solvency or insolvency, could be pronounced concerning him. 6 Martin, 577. No property of his could be under the control of the court, and none could be ordered to be surrendered, if he could not be properly adjudged insolvent. The bill of sale from him to Dow could not be rescinded, for that is the ground upon which the judge annulled the sale. There must be a judgment against Olcott before there can be a judgment against Dow, and there cannot be a judgment against Olcott until he be cited.
    The defendant Dow further avers, that there is no proof of Olcott’s insolvency. The first thing presented to us is the bill of sale, in which he conveys to Dow all his claims, interest, rights and debt, dues and demands, of all and every nature whatever, in, and belonging to the business conducted by N. Olcott, in No. 15, Toulouse-street; and it has been contended, that this being a conveyance of all his effects, and stock in trade, of itself makes him insolvent; but in the first place it its not proved that he had no other business in another street, or in another part of the state, or the world. Because a man ownsa grocery store, I believe he is not precluded from being master of a plantation, owning ships, hiring out negroes, &c.; and this exclusive concern of Olcott’s ought to be proven; it can never be presumed, especially where so serious a thing as fraud is charged. It has been decided in the English courts, that the conveyance of all a man’s property is an act of bankruptcy, because he thereby becomes totally incapable of trading; yet if made for valuable consideration, he may be as rich, or richer than before. A man may become a bankrupt, yet be able to pay twenty-five shillings in the pound. See Doug. Rep. 91. To be a bankrupt is not to be insolvent.
    Say then that this was all his effects and stock in trade—he might, under the English statute, have been declared bankrupt, though still solvent; but here it is necessary to prove that this would render him insolvent; he may have effects and stock, not in trade, and therefore, this conveyance being for good consideration, is not of itself a proof of insolvency.
    The only thing remaining that can be tortured into any meaning concerning the incapability of Olcott to pay his debts, is the testimony of Charles Lee, who received a note of hand, drawn by Olcott, in payment of a negro purchased; and when the note became due, application being made by Lee at the store, he was informed that Olcott was sick; and his clerk, moreover, informed him, that Olcott would not pay the note. A few days afterwards Lee saw Olcott, and agreed to take the negro back, and give up the note, which was accordingly done; no reasons are stated why Olcott refused to pay the note; whether, because he considered the negro as not worth the money, or because he was not in funds. From the subsequent arrangement fit appears, however, that the note is paid, and that he had property enough to pay it, even after the sale of all of his effects in trade to Dow.
    That Kenney is creditor for between four and five hundred dollars, has been proved; but one may owe, a great deal, and yet be rich; and the being debtor for four or five hundred, or thousands of dollars, does not make a man insolvent; he must be unable to pay the amount, and of this there is no proof; no witnesses testity that any demand was ever made upon Olcott for Kenney's claim; or that, if judgment was obtained against him, there would not be sufficient property to seize. There no evidence of there being executions against him, numerous debts hanging over him, or that the man was ever distressed for money.
    There is then no proof of Olcott’s insolvency. Again, this defendant avers, that even were there proof of Olcott's being, at the time of the sale, unable to pay his debts; yet, as it was made for valuable consideration, and without fraud on the part of Dow, it is valid.
    Three things are required by the Spanish law before a transfer for valuable consideration, "por titulo oneroso, can be revoked and annulled, to wit: fraud on the part of the transferor, the knowlege of it on the part of the receiver, and that the fraud shall operate to the injury of the creditors, y asi en la enagenacion por titulo oneroso se requieren tres cosas, fraude de parte del enagenante, y sciencia de el de parte del recibiente y el evento o sucesso del fraude en dano de las acreedores.” Curia Phil. lib. 2, cap. 13, sec. 16.
    Now, we admit for argument, that there was fraud on the part of Olcott, but there is no proof that Dow was knowing to any intention on the part of Olcott to defraud his other creditors; there is no proof that the store and book accounts were the only property possessed by Olcott, or that Dow knew that he had not sufficient to pay his other creditors; there is even no proof that Dow knew he had other creditors; and unless these be proved, it is not a fraudulent transaction on the part of Dow. The judgment of the parish court has freed him from the imputation of any intentional fraud; and we have just seen, that there must be this intentional fraud proven, to revoke the sale. The court below has said, that it is enough that Olcott was unable to pay his other creditors, but our law is otherwise.
    
      Aunque es visto dar en fraude el deudor, que 
      
      sabe que tiene acreedores, y que sus bienes no son deficientes para pagarlos y los enagena, no as suficiente para ser participe de fraude el comprador de ellos que deba tener el vendedor acreedores, sino es que tanbien sepa qua sus bienes no son suficientes para para pagarlos." Curia Phil. lib. 2, cap. 13, sec. 17, and authorities there referred to.
    Nor does it make any difference whether the consideration arose and passed at the time of the transfer; or whether it was a debt, already existing, which was given up therefor, for an enagenacion por titulo oneroso, is quando por el no se da de gracia la cosa, sino por algo que por ella se da, como en la compra, permutacion, y otras cosas semejantes." Same book, sec. 18.
    And the case put by Domat in his Lois Civiles, is one of payment of an antecedent debt. See also 5 Part. 15, 19. Domat, 219, sec. 12, and the authorities is there put.
    To this statement of the law, it may however be objected, that it is altered by the 24th section of the statute, relative to the voluntary surrender of property, passed in 1817; by which it is enacted, that “any debtor who shall be convicted of having at any time within the three months next preceding his failure, sold, engaged or mortgaged any of his goods and effects, or having otherwise disposed of the same, or confessed judgment in order to give an unjust preference to one or more of his creditors, over the others, shall be debarred from the benefit of this act; and the said deed or acts shall be declared null and void; provided, however, that if the purchaser of such property shall prove that the said property was either sold or engaged to him for a true and just consideration, by him bona fide delivered at the time of such deed; then and in that case the said sales and mortgages shall be declared valid.”
    But this section applies only to persons who wish to avail themselves of the act; the words, “they shall be debarred from the benefit of this act, and the said deed or acts shall be declared null and void,” shew that this was the intention of the legislature, more especially considering the previous statute of 1808, which was made for the benefit of persons confined for debt, as the statute of 1817 was for those not in actual confinement. The law of 1808, expressly declared, that it must be in contemplation of taking the benifit of the act, otherwise the conveyances, acts, &c., would not be affected. Mart. Dig. 455, sec. 16. Under this law the debtor must not only be suing his creditors agreeably to its provisions, in order that any assignment, made within three months previous, should be annulled; but he must at the time of the assignment have had it in his mind, that he would shortly take the benefit of the law. This was found very difficult to prove, and therefore, when a law was made for debtors, not in actual custody, who whished to free their persons from imprisonment by surrendering their estate, these words were omitted; but it was never understood that the law of 1817, was a repealing law, and that of 1808, was at all affected by it. Yet, if the 24th section is to be considered as applying, not only to debtors voluntarily surrendering before in custody, but to all debtors insolvent, the 17th section of the law of 1808, is a dead letter, and is repealed, without any repealing clause in that of 1817; this construction is not to be admitted if it is possible to reconcile the two sections, one with the other, ut res magis valeat quam pereat, and they are not at all contradictory, if we suppose the section of the statute of 1817 to apply only to those debtors who are seeking relief under its provisions: and this its very wording fully shews; for in the same breath, it declares that the debtor shall be debarred benefit of the statute, and the act shall be annulled: what use of talking about debarring him, if the legislature had not petitioners under this law, alone in contemplation? If this be the case, as Olcott has never voluntarily surrendered either in custody or out of custody, neither law is applicable to him.
    Again, the consideration was “a true and just one, bona fide delivered at the time of such deed.” Dow released him from a debt of $ 1400, which was justly owing to him at the time; and this in good faith, agreeably to the evidence in the opinion of the judge below, and Olcott’s estate was benefitted to that amount, as it was released from the burthen of the debt.
    These things being considered, the defendant asks for a reversal of the judgment of the parish court.
    Morse, for the plaintiffs.
    The petitioners state, that they are creditors of Olcott. That he has, within a few days, manifested evident symptoms of a deranged mind, and has actually, in consequence of the influence and improper persuasion of Timothy Dow, one of his creditors, sold the whole of his effects, and stock in trade, to said Dow; and they believe, had he been at the time in his proper mind, he would not have executed the said sale; and inasmuch as the said sale is without any good consideration in law, and fraudulent against all the creditors of said Olcott, they pray that said property be sequestered, provisional syndics appointed, that Dow be cited, the sale annulled, and other equitable relief. And the petitioners, in order to obtain the sequestration aforesaid, severally make oath to their alleged claims.
    The court below gave, as its opinion, that the symptoms of insanity in Olcott must be attributed to momentary abuse in drinking liquor, and not to real insanity. I think in this point it erred, and in order to shew this, shall have recourse to the testimony on record.
    The first in order is Mr. Goodale, a respectable merchant of this city; he swears that in a conversation with Dow, the defendant, the said Dow stated, that Mr. Olcolt appeared to be deranged, and had lost hit mind, which Dow seemed to regret; and deponent avers, that in his opinion, on the day of the conversation, Dow was under the impression and belief that Olcott was not able to conduct his business at that time. The deponent further understood from Dow that he had made some advances to Olcott, and had taken his store. Here is an explicit avowal of the defendant, that he himself believed Olcott to be deranged, and he had then, as he further states, taken Olcott’s store.
    Pierre Musson also saw Olcott about the time the transaction took place between him and Dow, and believed, from his extraordinary conduct, he was deranged, and that it was not caused by drink.
    M. Md. Pellé states, that he had many occasions to see Olcott; had transacted mercantile affairs with him. That he knew him in business; he was not in the habit of drinking; and that when he saw him, his mind was deranged, and he had not been drinking.
    Mr. Hewes, from the conversation he had with Dow, was impressed with the belief that Olcott was a little deranged; but Dow subsequently told him that Olcott was subject to intoxication.
    The testimony of two of these witnesses goes clearly to shew that Dow himself, at the time of this pretended sale, was under the impression of Olcott’s insanity; and that of the other two established the fact of his derangement from their personal observation, and contradicts the presumption of its being caused by drink.
    The only reasons then, upon which the judge could have formed his conclusion, must have been drawn from the testimony of Lee and Devereux, the clerk; and Lee’s opinion is drawn from Devereux’s. He lent Olcott some money, and on inquiring for him some days after, he thought he was somewhat irregular; and questioned the clerk, Devereux, who answered it was nothing but liquor; and Dow made the same answer. On inquiring some time after, he was told Olcott was unwell. He had known him for four years, and had always found him sober and correct before this last transaction; was but twice in his company; and then considered him a sound man.
    Devereux states, that he slept in the same room with Olcott, and has considered him a man of sound mind since he had known him; and further, that about the time of sale, he never observed any derangement on the part of Olcott; on the contrary, always considered him as a sane man.
    Madame V. Evan deposes, that Devereux told her directly the contrary. She expressly states, that Devereux told her that Mr. Olcott was crazy, and that one evening said Devereux requested deponent to procure him a bed, because he was afraid to sleep in the same room with Olcott; that she then procured a bed and he slept in the house. This, she stated on the trial, took place four months previous, which fixes it at about the time when the transfer was made to Dow. Deponent also knew that Olcott was insane from her own observation.
    Mr. James Henry states, that he knew very little of Mr. Olcott, but believes his insanity was caused by intoxication; and for this sage reason, “That if he were intoxicated to-day he would appear insane to-morrow.” Were this a fact, I am fearful the list of interdicts would be very considerably increased.
    The testimony then of Goodale, Musson, Pellé, Hewes, and Madame Evan, strongly affirms the fact of Olcott’s insanity and character for sobriety, at the time of the transaction, That of Lee’s, which is but barely negative and forced, upon the say-so of Devereux’s, demands but little consideration; and as to Devereux, it only rests with the court to decide who is entitled to the most credit, he or Madame Evan. Their testimony is so diametrically opposite, that the verity of the one establishes the falsity of the other. But, supposing it is admitted that Olcott was occasionally intoxicated, does that destroy the fact of his insanity? On the contrary, I think it affords one of the strongest evidences of it. Insanity acts variously with different constitutions; almost every deranged person is seized with a different fancy; liquor was his. Insanity may cause a man to drink, and drink may cause a man’s insanity.
    On the trial in the court below, the defendant’s counsel objected to the admission of so much of this testimony, as went to prove the insanity of Olcott, on the ground, that as there was no judgment of interdiction against Olcott, no act of his could be annulled for insanity until then. The court over ruled the objection, whereupon he took a bill of exceptions; but in his argument before this court, he has not referred to this objection; he has produced no law to support it, and it cannot be maintained. In the case of Marie vs. Avarfs heirs, n. 1, vol. 10. Martin’s Rep. pamphlet form, it is decided, that an heir may avail himself of a testator’s insanity, although his interdiction was not procured.
    And indeed, it is but reasonable, that in a living person, all acts of his while non compos, should be null; although no formal interdiction had been passed or even provoked; for how are we to judge of his insanity, but from some previous act; and the one previous act might be so extensively ruinous in its consequences, as to involve the whole estate of the unfortunate. Again, he may have no relations or friends, and a stranger might not feel sufficiently interested to take upon himself the trouble and expence incidental to such an application. The object of the law of interdiction is to give public notice of the fact. All acts entered into by a person proved insane at the time are as absolutely null and void, as if he had been formally interdicted; for consent being the essence of a contract, it follows that a person must be capable of giving his consent, and consequently, must have the use of his reason, in order to be able to contract. 1 Path. on Obligat. 29.
    
      Having disposed of this point in the case, there only remains this question to be discussed: Should the judgment of the parish court, in setting aside the sale as fraudulent, be affirmed? On this point, there can be but little doubt. The appellant in his argument, for many reasons, avers, that Olcott’s insolvency could not be inquired into in the present case:- Because, 1st, only one of plaintiffs proved himself a creditor, and one alone cannot sue for a surrender of his debtor’s property, and a rescission of all previous acts, and cites Civil Code, p. 294, art. 168, and 6 Martin, 577. On referring to this passage in the Code, we find that a forced surrender is ordered at the instance of some of the debtor’s creditors. The appellant’s counsel has not given to this suit a distinct and proper character; it was instituted by three creditors of Olcott, to obtain a sequestration of his property, fraudulently obtained; who supported the allegations in the petition, and respectively made affidavit to the amount of their claims. This was the proper manner of bringing the action, and the only formality required by law. It is admitted, that in the course of the trial, Kenney fully proved himself a creditor; this was sufficient to establish the fraudulency of the conveyance, supposing Olcott to have disposed of all his effects, and left Kenney’s debt unliquidated. Robt. Fraud, Con. 546. The case in 6 Martin, 577, is no way analogous to the present. Because, 2d, there, was no allegation of Olcott’s insolvency, nor was it sworn to; and therefore it could not have been put in issue. The petitioner alleges that Olcott, in consequence of the influence and improper persuasion of Timothy Dow, one of his creditors, sold the whole of his effects, and stock in trade, to said Dow. The transferring the whole of his effects to one of his creditors, without making any provision for the others, is surely allegation sufficient from which to draw a conclusion of fraud; and we also find the fact itself a very strong evidence of insolvency; for the whole of his effects conveyed to Dow, did but satisfy his claim in part. Dow was a creditor for upwards of $ 1800, and for all his property, Olcott was only credited in the sum of $ 1400. I shall here notice an objection, on which the appellant appears strongly to rely, and which runs through the whole vein of his argument. He says, that the bill of sale barely shews, that Olcott disposed of all his effects, claims. &c., in the business, No. 15, Toulouse-street; and to prove his insolvency, we ought to shew, contrary to every rule of evidence, that he had no other property. No plantation, no ship, no negroes hired out, and many other negations; for, he believes, because a man owns a grocery store, he is not precluded from being master of a plantation, ship, &c. Certainly not, I believe so too. But when a public trader conveys all his effects, claims, and credits of, in, and to that trade, to one creditor, and all of which only extend to a partial satisfaction of that one claim; when he leaves other debts unliquidated and unprovided for; debts which were incurred for and in the course of that trade; this furnishes a violent presumption, that he has no more property; that he is insolvent. It is, indeed, conclusive, and when we make this allegation, it rests with the party affirming, that he has other property, to shew it. Produce it; prove by actual demonstration that he still possesses more than sufficient to pay all his debts, and we shall be defeated; and it is only in this manner that the fact can be brought to light. If this trader had applied for the benefit of the insolvent act, and we had opposed his release, charging him with possessing more property than his schedule exhibited, here we must have ferretted this property out; but in the present case, we have proved that Olcott disposed of all his visible effects; that they, not being sufficient to pay his debts, de facto, he is presumed insolvent; and it was then for this defendant to destroy this presumption, by shewing he possessed other property sufficient to satisfy all claims. This would have bettered their condition, and this it was incumbent upon them to have proved. When money is paid to a fair creditor, in the usual course of trade, nothing attends the transaction which can have any tendency to excite suspicion of fraud or injustice on the part of either party; but in cases, where instead of payment, some security is offered, this very circumstance creates a violent presumption that the debtor is not able to pay his debts, and that he is about to fail. 3 Martin's Rep. 274. Roberts Fraud. Con. 546. The third ground taken by the appellant, is an objection that Olcott’s rights are so vitally effected that he should have been made a party to the suit. This, if an error, can only be attacked by Olcott, and cannot be urged by the defendant. The question here is, whether his claim should not be remitted to its primitive rank, and paid in concurrence with the other creditors?
    Although our refutation of the second ground of the appellant’s argument, should render any further proof unnecessary, yet to establish beyond all doubt, the insolvency of Olcott, we shall have recourse to the parol testimony: and here, the evidence of Charles Lee need not be tortured to this meaning; the fact of which he swears, is clear and conclusive evidence of itself. He made a bona fide sale of a negro boy to Olcott, and took his note tor the payment; when the note became due, he applied for payment, but the boy stated that Olcott was unwell, and the note could not be paid; and that Olcott had sold his store to Dow; and this boy, Deveroux, in his examination, very gravely states, that the reason of Mr. Olcott’s not paying his account was, the inconvenience of not having the money. This is surely a sufficient reason, and makes good our allegation; for it is this inconvenience of not having money, that is the essential cause of insolvency. The counsel states, no reason has been given why Olcott refused to pay the note; it was not for us to give this reason; it is presumed, that at that time he was troubled with that same inconvenience. The counsel further says, it appears, however, that the note is paid, it does not so appear. When Lee found he could not get the money for the note, his suspicion was excited; by the subsequent irregular conduct of Olcott, they were confirmed; and he very prudently thought it better to regain his negro boy, his identical property, than run the hazard of obtaining what might have been considered a good price for him.
    We will now shew, that Dow himself never considered this pretended sale as binding and effective in law.
    Devereux, the clerk of Olcott, states that Olcott was indebted to Dow $ 1800. Dow, at the meeting of the creditors ordered by the court, makes oath that Nathaniel Olcott is justly indebted to him in the sum of $ 2099 82 cents. He subsequently filed with the clerk of the court, his account against Olcott, amounting to $ 2106 52 cents; and swears to its correctness. These acts of his evince that he considered the sale a nullity; for how could Olcott pay him by this sale $ 1400. and still be indebted to him in the full sum of this account? It is not pretended there was more than this one account; that any subsequent transaction swelled the sum to its former bulk. The act of 2d of March was a final one. Two thousand dollars, or thereabouts, were the original debt; fourteen hundred dollars of that debt have been paid, and yet, by a novel system of arithmetic, twenty-one hundred dollars remain due.
   Porter, J.

This action appears to have been commenced with a double object; to have Olcott declared a bankrupt, and to obtain the rescission of a sale of property made by him to Dow, on the ground that he was insane at the time he made the conveyance; and "inasmuch as it was without any good consideration in law, and fraudulent.”

I doubt very much, even under the equitable and liberal practice which our law authorises, if two such causes of action can be properly joined its the same petition. It seems to me, that it must necessarily introduce great confusion, to permit demands, founded on distinct causes, to be carried on against different defendants in the same suit; but I give no opinion on this point, because the defect, if it does exist, is cured by the parties not objecting to it at the proper time.

Dow was cited to answer, this petition; Olcott, the other defendant, was not; the former appeared, and the action for a rescission of the sale proceeded against him; evidence was taken, and the parties heard. The court decided that the transfer of the property was null and void, and followed up this decree, by an order that a meeting of the creditors of Olcott take place before a notary. From this judgment Dow has appealed.

The record contains not only the evidence on which this decision was made, but also the subsequent proceedings had against Olcott, which terminated in ordering a forced surrender of his property. The greatest doubt I have had in this case is, whether we were not authorised to notice the fact of this insolvency; but on reflection, I am satisfied that as it did not make a part of the evidence, on which the court pronounced judgment below we cannot notice it on the appeal.

The first point made by the appellees is, that there is sufficient proof that Olcott was insane at the time he executed the bill of sale to the defendant.

The evidence on this head is in substance as follows:—

Goodale, the first witness, declares that Dow told him Olcott appeared to be deranged.

Masson deposes, that Olcott was not of quiet mind, and deranged; and his reason for thinking so was, that Olcott called for paper and ink, and wrote and tore about eight or ten pages, and asked a lad of 13 or 14 years of age, if a certain account he had drawn was correct.

Pellé states, that he met Olcott in the street in the month of March, that he was “extravagating,” offering to give his store to the deponent, and requesting him to stop at a tavern and drink with him, which he did; that he had occasion to see him five or six days after, and he was in the same situation of mind.

Lee declares, that he had lent Olcott some money, that he applied a few days after for it, and thought Olcott was somewhat deranged; he made enquiry of the clerk, who answered it was nothing but liquor; he mentioned the same thing to Dow, who made the same answer; that some days after the deponent applied at the store for payment of a note he held for a negro boy; he was informed it could not be paid. A week afterwards he made an arrangement, and took back the boy. Olcott appeared of sound mind when this transaction took place, though he drank too much.

Hewes swears, that Dow told him in the beginning of March, that his impression was, that said Olcott was a little deranged, and unable to attend to his business. And that in a subsequent conversation, he told the deponent that Olcott was subject to intoxication.

Devereux, the clerk, states, that Olcott is a man of sound mind since he has known him; that he is given sometimes to drinking, that he and Olcott slept in the same room, and that he has seen him drunk at the rate of three times a week.

This last witness is contradicted by one Madame V. Evan, who appears to stand in a situation, in relation to one of the plaintiffs, not very favourable to her credibility.

I agree with the parish judge, that this evidence is not sufficient to establish the insanity of the vendor. The fact must be notorious, and it must be clearly proved. Code 80, art. 15. But all I can gather from the testimony is, that he was a drunkard, and that like other men, when in that situation, he talked and acted very foolishly.

The appellees next insist, that the sale was without consideration, and void against creditors.

Had it appeared in evidence, that Olcott was insolvent, or had been declared a bankrupt, a very strong case on the part of the plaintiffs would have been made out; but nothing of this kind is shewn, and of course, none of the provisions of the law which relate to sales made, or preferences given to favourite creditors, on the eve of bankruptcy or insolvency, can apply here; as that bankruptcy and insolvency have not yet been established according to law.

If then the plaintiffs can succeed, they must do so in consequence of rights which the law confers on them, independent of these circumstances of failure or insolvency. One of the rules prescribed for the exercise of those rights is, that to set aside the alienation, three things must be proved; fraud on the part of the vendor; knowledge of that fraud by the person to whom the alienation was made; and an actual injury to the other creditors. Curia, Phillippica, Commercio terrestre, lib. 2, cap. 13, n. 16, 17. The evidence does not establish these facts, and the case of the plaintiffs is not made out.

We have been referred to the decision of this court, in Brown vs. Kenner & al. 3 Martin, 270, but in that case as well as Meeker's assig. vs. Williamson & others syndics, 4 Martin, 625, the insolvency of the vendor had been established before suit was brought, and the opinions given there were predicated, on the ground, that the conveyances were made on the eve of bankruptcy, and with a view to it.

I am therefore of opinion, that the judgment of the parish court be reversed, and that judgment be given for the defendant, as in case of non-suit, with costs in both courts.

Martin, J.

I concur in the opinion just pronounced.

Mathews, J.

I do also.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, and that there the judgment for the defendant, as in case of non-suit, with costs of suit in both courts.  