
    Francisco Mercadal, Jr., v. His Creditors.
    Where a creditor placed upon tlio schedule of an insolvent certifies on oath, either in person or by-proxy, his claim to be true and legitimate in the manner required by the Act of 1855, p. 434, sec. 13, it will entitle him to vote for a syndic : and it is incumbent, in all cases, on the complainant to rebut by proper evidence the presumption of indebtedness arising from the sworn declaration of the creditor.
    Appeal from the Third District Court of New Orleans, Buvigneaud, J.
    
    
      C, Roselius and A. 0. Semmes, for plaintiff and appellant. L. Caslera and P. S. Biron, for defendants.
   Duffel, J.

This is an opposition to the appointment oí Francisco Mercadal Sr., as Syndic of the creditors of the insolvent, on the grounds that Mercadal Sr. and others who voted for said Mercadal Sr. were not the creditors df the insolvent, and that by deducting said illegal votes, André Dubuch, the opponent, is entitled to the trust, which he now claims'.

The District Judge recognized Dubuch as the duly elected Syndic of the creditors of Francisco Mercadal Jr.

It appears that the creditors, whose claims are contested, were placed as such in the schedule, and that they certified on oath, either in person or by proxy, their respective claim to be true and legitimate, in the manner required by law, Acts of 1855, p. 431, sec. 13.

The statute requires no other evidence to entitle a party to a vote; and it is therefore incumbent, in all cases, on the complainant to destroy, by proper evi-deuce, the presumption of indebtedness arising from the sworn declaration of the creditor. The fact that the opponent opposed the votes before the Notary, doe3 not change the relative position of the parties. The burden of proof would necessarily rest on the creditor, on an opposition to a tableau of distribution ; and the reason of the difference is obvious. In the first place, the interest of the mass of creditors requires that the property of their common debtor should be applied to the payment of their claims without unnecessary delay; and in the next place, a judgment liquidating a debt, in a litigation of this kind, would not be binding on the creditors who were strangers to the proceedings. Pandellij v. His Creditors, 9 L. R. 387.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and it is now further ordered, adjudged and decreed, that the opposition herein filed be rejected, and that the appellant, Francisco Mercadal Sr., be declared to be the duly elected definitive Syndic of the creditors of Francisco Mercadal Jr., and that he be qualified as such by giving the bond and taking the oath required by law. It is further ordered, that the costs of opposition, in both courts, be paid by the opponent, André Dubuch.  