
    KELSEY vs. HIS CREDITORS.
    Appeal from the court of the parish and city of New-Orleans.
    The act of 1817 has not repealed the former laws re-lative to the voluntary surrender.
    It introduces a cumulative remedy, from which certain insolvents are excluded.
    
   Martin, J.

delivered the opinion of the Court. Kelsey filed his petition praying that his creditors might be summoned to receive a voluntary surrender of his property, &c.

An order was accordingly made, and a stay of proceedings directed.

Poultz, one of the creditors prayed that the order might be set aside, on the ground that the applicant had within one year filed his petition for a respite.

East'n District.

Dec. 1823.

The order was set aside, the court expressing an opinion that the applicant had not complied with the requsites of the law. He appealed.

The statement of facts show that it was admitted that,

Poultz is a creditor.

The insolvent in March last, filed his petition in the Parish court, praying for a meeting of his creditors, in order that he might obtain a respite, but no meeting took place and the bilan was withdrawn.

The appellant urges that he did not apply for the benefit of the act of 1817.

That he had a right to surrender his property before this act, and it has not taken it away Shreve vs. his creditors 11 Martin, 30.

The property surrendered amounts to more than one third of the debts.

The stay could not be set aside on the prayer of one creditor.

The appellee insists that the act of 1817 applies indiscrimately to all cases of a voluntary surrender, and no insolvent can recur to the former laws, except on such points as are unprovided for by it, or on a case in which the act wonld have been remediless.

The 7th section of the act requires that when the property surrendered, is not equal to one third of the debts, or when the petitioner has presented a schedule, within the year, he should make it appear by two witnesses, that he has met with the losses he states, and that they have reduced him to his present situation.

The Court may and mnst set aside the application, on the motion of any one of the creditors, if these formalities be neglected. Act 1817, sect. 17.

The Act of 1817, has not in our opinion, repealed the laws of this state in regard to the voluntary surrender. It introduces a co-mulative remedy, from which certain insolvents are excluded, and those who seek to avail themselves of it, must bring themselves within its provisions, and of the new act.

Those who are excluded from the new, or who are unable, or unwilling to comply with the requisitions of the new remedy, may refer to that which existed before.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed; that the order for a stay of proceedings be reinstated and the appellee pay the costs of this appeal.

Eustis for the plaintiff, Morphy for the defendant.  