
    JACOBS vs. HIS CREDITORS.
    Eastern Disx.
    
      May, 1837.
    APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.
    Where it is shown the debtor was in business and good credit, after he gave a mortgage to secure a creditor, but made a surrender of his property about four months afterwards: Held, that the mortgage was valid, even as to other creditors.
    This is an opposition by H. M. Hart & Co., to the tableau of distribution filed by the syndic of the creditors of Samuel Jacobs.
    It appears Jacobs was indebted to the opponents for merchandize, and on the 28th February, 1834, gave them a mortgage on certain property, to secure payment, which was recorded the 1st March; on the 1st July, following, Jacobs made a cession of his property for the benefit of his creditors, and a syndic was appointed. On filing his tableau, the syndic put down Hart & Co. as ordinary creditors. They claimed to have a preference over other creditors, in virtue of their mortgage, and prayed to have the tableau amended in this respect.
    The parish judge sustained the opposition; the syndic appealed.
    
      Schmidt, for the appellant.
    
      L. Jarán, for the opposing creditors.
   Carleton, J.,

delivered the opinion of the court.

The syndic in this case, having filed a tableau of distribution, and placed H. M. Hart & Co. thereon as ordinary creditors, they opposed the homologation, on the ground that their claim was secured bj' act of mortgage, which they exhibited, and prayed to be paid by preference, out of the proceeds óf sale, of the property mortgaged. The court sustained their claim, and accordingly ordered them to be put upon the tableau as mortgaged creditors.

Where it is shown the debtor was in business and good credit, after he gave a mortgage to secure a creditor, but made a surrender of his property about four months af-terwards : Heldy that the mortgage was valid, even as to other creditors.

The syndic appealed from the judgment of the court, and his counsel insists:

First, That Hart & Co., at the time of taking the mortgage, knew that the insolvent was in failing circumstances.

Secondly, That there was no consideration given for the mortgage.

We think with the judge of the Parish Court, that neither of these positions are tenable. It is in proof, that the insolvent was in business and good credit, subsequent to the execution and recording of the mortgage, and that the transactions between himself and Hart & Co., were originally based upon the sale and delivery of merchandize. The slight difference existing between the price of the goods and the sum for which the mortgage was given, so much insisted on in argument, does not appear'to us to afford any just suspicion of fraud.

We think the judgment of the court below ought to be affirmed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.  