
    
      DUFAU vs. MASSICOT'S HEIRS.
    
    Appeal from the court of probates of the .*u parish OÍ ¡St. MaiTS.
    An insolvent .⅛ tar does n t ac^trre a disch rge <f hudeo - when the e-t editors fail to a pear; cr h--V3Hir rfaplf'h*ns" withdraw it.
    ⅛ a suit to ascertain the sharr of one partn-r, sli panics?
   Porter, J.

, . r> t delivered the oDimon or the 1 The petitioner claims from the defen-1 (‘:in;s fbc sum of five thousand dollars balance ¶ . •, , , due on an account settled and signed by the ancestor of the defendants, and the plaintiff on 1 20th September, 1809; seventeen hundred and ninety-four dollars, seventy cents, for the third of the losses sustained in a partnership of which they were members in conjunction with one Laurent Wiltz; two thousand eight hundred and forty-four dollars,forty four cents, the one half of the petitioner’s losses in the partnership, the ancestor of defendants having purchased the one half of plaintiff’s interest in the concern, previous to its dissolution ; and interest on a part of these claims according to an account annexed to the petition. Judgment is asked for thirteen thousand, five hundred and forty-five dollars with interest ffom judicial demand.

The defendants plead that their ancestor on the 24th of August, 1813, made a cession, der the act for the relief of insolvent debtors in actual custody,ofall his property; and was charged from all debts contracted prior to that day.

That he had no other accounts with the plaintiff excepting those in relation to the plantation of which they were partners, and that their accounts were settled and liquidated by a judgment of the district court of the state of Louisiana for the first district, on the 20th of June 1819, in which, I. P. Wiltz, was plaintiff, and the petitioner, one P. F. Dubourg, and C. Massicot, were defendants.

And lastly, that the plaintiff was indebted to their ancestor at his decease in the sum of three thousand dollars.

The cause was submitted to referees, who reported that the sum of $9655 64 cents, was due by the defendants, with interest on $5000 of this sum at the rate of ten per cent, from different periods at which the several instalments composing this sum fell due. The defendants appealed.

The first question for our decision is, the effect of the discharge under the insolvent laws.

It appears from the record of the proceed» 11 ings in the suit of Massicot vs. His creditors, that some of them alleged fraud against him; piat OJ[ ]¡;s filing all answer to the charge, the allegation was withdrawn, and that the court therefore ordered, he should be discharged out of custody. These proceedings bear date the 4th of December, 1813.

On the 21st. of January, 1814, a syndic was appointed, and on the 15th of March of the same year, the insolvent took the oath prescribed by the statute, and executed an assignment of all his property to his creditors.

The plaintiff contends, these proceedings have not the effect which the defendants in their answer allege. That no judgment of the court being rendered discharging the defendant from the debts contracted by him, they yet remain in force and can be collected from him or his representatives.

The fourth section of the act under which the insolvent claimed relief, declares that in case the creditors when notified do not attend on the day appointed for diem to appear and answer the claimant’s demand for a discharge from the custody of the sheriff, the court shall in its discretion either release the debtor or res' Aland him until another day: and should the creditors not attend on that day and shew as aforesaid, the debtor shall he discharged, on executing an assignment in trust for his ere-ditors; and on taking the oath herein prescribed. 2 Martin's Digest, 444.

This section would perhaps sustain the plea of the defendants, but it must be taken and construed with another, that precedes it,and which is as follows: “ the creditors being thus duly notified shall have the right to interrogate the debtor, &c. and should the court be satisfied with the fairness and regularity of his books and accounts (if a merchant or a trader) and the documents which accompany them, and that two thirds of his creditors in number and value, will consent to his discharge, he shall on executing an assignment of his estate and effects, to trustees named by his creditors under the direction of the court, and on taking the oath herein prescribed, he forever discharged from all suits and actions then pending against him, and from dll manner of debts which he may before that time have contracted”

A clause of the 6th section ’of the act als© requires to be set out, in order to enable us to present clearly the true construction which 1 J that relied on by the defendants should receive. After directing the proceedings which should |je ha(i jn case the creditors make an allegation of fraud, it proceeds to declare, that if the jury find the debtor not guilty of fraud, he shall forthwith be discharged from the custody of the sheriff, and from all manner of debts which he may before that time hare contracted. 2 Martin's Digest, 446.

The two cases then, in which the legislature have declared that the debtor shall be discharged from previous debts are: 1st. where the two thirds of the creditors consent: and, 2d where they make an allegation of fraud, and that allegation is found untrue. But no such consequence is declared to follow the non-attendance of the creditors and their failure to consent, or object; and it cannot be implied. On the contrary, the presumption is, that no such consequence was contemplated by the law maker. The section relied on merely states, that if the creditors do not attend the debtor shall be discharged, (elargi) that is» discharged from imprisonment. If the word discharged conveyed the idea that the debtor was released from his debts, there was no oc-easion for the legislature to add after it, in the ° preceding, and succeeding sections, and all manner of debts their using these additional terms shews that they did not consider the word, discharged, would have that effect* The change of phraseology, indicates a change of intention, and neither in the reason of the thing, nor in the language used, are we au-thorised to say that the mere non-attendance of the creditors operated a release of their debts. This view of the subject becomes conclusive when we turn our attention to the French text which at the time this statute was passed, was of equal authority with the English. The corresponding term used in it, to discharge is elargi, which means set at liberty, and does not at all convey the idea, of a release from debts.

It was urged the defendant might come under the protection of the 6th section because the charge of fraud had been made against him by his creditors. But that charge appears to have been made in error, and to have been withdrawn when that error was discovered' It is only trial, and verdict of acquittal, that produces the consequence contended for.

In regard to that portion of the plaintiffs claim which is founded on a balance due for the partnership affairs, we think the objection ^at representatives of With should be parties, must prevail. By the decree of the district court where these matters were once liquidated, and which settled as far as was then possible the accounts of the partners, it was declared, that after debts of the firm should be paid, if any surplus remained it will go to the discharge of the common debts which the several partners may have against the joint concern. By this action it is attempted to establish what is the share of the debts due by one of the members of that firm to it, without all the partners being before the court. This cannot be done, nor is the case of the plaintiff made stronger by shewing, that since that time the other partner has been paid all claims he may have had against the firm. For it appears by the terms of the satisfaction entered on record that this amount was settled between the plaintiff and the other partner without the intervention of the ancestor of the defendants, consequently as to the person they represent these matters are still open, and all must be before the court to enable a final settlement to be made.

One of the most important questions in this «ase is, in relation to the interest due on private account. By the contract of sale which forms the principal item of this account, the plaintiff sold to Massicot the one half the vendor’s interest in the plantation on the same terms, clauses, and conditions, that he had acquired it. And the vendee stipulated that he would stand in his place. One of the clauses of the contract by which the vendor acquired the property was that if the payments were not regularly made, the sums due should bear interest at temper cent. An objection has been taken that by the contract, the purchaser was to pay other persons than the seller, and that on his failure to comply with his agreement, and payment by the vendor, that he then owed to the latter, and that the interests ceased to run from that moment. But we are of opinion that though he might have discharged his engagement by paying the price to the person indicated in the act, his failure to do so cannot place him in any better situation than if by the terms of the agreement the payment was to have been made to the seller. The money was still due, and the interest was to run until perfect payment.

Brownson for the plaintiff, Simon for the defendants.

It is therefore ordered, adjudged and decreed, that the judgment of the probate court be annulled, avoided and reversed, and it is fur* ¿her ordered, adjudged and decreed, that the plaintiff do recover from the defendants the sum of five thousand dollars with interest at ten per cent, on the four several instalments of $1250 each, from the time they became due; viz: from the 15th of March, 1811, the 15th of March, 1812, the 15th ofMarch, 1813, and the 15th of March, 1814, with costs in the court below, those of appeal to be paid by the plaintiff : reserving to him the right to assert his claim in relation to the partnership concerns in a suit where the partners or their representatives are parties to the suit.  