
    DUCLERC vs. CREBASSOL ET AL.
    Eastern Dis.
    
      June, 1841.
    APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OP NEW ORLEANS.
    Where the debtor makes a cession of his property which has been sequestered, it should be delivered up to the syndic to be sold; the privilege or claim of the suing creditor being preserved on the proceeds. The sequestration is consequently cancelled.
    This is an action by a printer, instituted the 15th March, 18B7, to recover from the defendants $ 1100, the price of a printing establishment, which he had sold them; also $4S4, for wages due him as a printer while in their employ, and damages. He had the printing establishment sequestered.
    
      On the 20th March, only five days after the institution of this suit, the defendants made a surrender of all their property for the benefit of their creditors ; including the printing establishment. The syndic obtained an order to sell the property; and also a rule on the plaintiff to set aside the sequestration and have the property delivered up to him.. This rule was made absolute and the plaintiff appealed.
    
      Grivot, for plaintiff,
    submitted the case, on the pleadings j having been subsequently employed in the suit.
    
      Pepin, contra.
   Simon, J.

delivered the opinion of the court.

Plaintiff, who is a printer, claims the payment of a sum of eleven hundred dollars, being the price of his printing establishment, which he sold to the defendants, and on which he alleges to have the vendor’s privilege; the sale was made in a note payable at six months, which note never was furnished according to the conditions of the contract. He also sues to recover the sum of four hundred and eighty-four dollars, as the amount of his salary while he was under the employment of said defendants, and three hundred dollars damages.

Before filing his petition, he obtained a writ of sequestration of all the objects composing the printing establishment, in order to secure the exercise of his legal privilege thereon. A short time after this suit was instituted, the defendants sued their creditors for a surrender of property, and carried the property sequestered on the schedule of their affairs ; the cession was accepted by the court, a meeting of the insolvents’ creditors took place, and a syndic was regularly appointed.

On the 26lh of June,' 1837, the syndic took a rule on the plaintiff to show cause why the sequestration should not be set asidfe, on the grounds : 1st, that the plaintiff was a partner of the defendants, and consequently cannot maintain this action ; and 2d, that the property sequestered had been by them ceded to their .creditors. The rule was made absolute, the order of sequestration was cancelled, and the syndic was authorized to cause the printing office to be sold, in such a manner as to preserve to the plaintiff the exercise of his alleged rights upon the proceeds thereof. From this judgment the plaintiff appealed.

debto^makeía oess,0“ ol\ Ws property which. has been sequ.es-tei-ed, it should be delivered up sofa^the'pd-TI„le,Se °i' clalm ot the suing ere-ditor being- preserved on the proceeds. The-consequently cancelled.

We think the parish judge did not err : we understand the object of the law in permitting a writ of sequestration to issue, to be the preservation of the property in dispute during the pendency of the suit; it is allowed as a conservatory measure to prevent a defendant from ill-using the property and from doing any act which may be prejudicial to the other party during the progress of the action, and previous to the decision of the cause; but it does not in any manner affect, increase or diminish the rights of either of the parties to the property sequestered. In this case, the matter in controversy was yet unsettled at the time that the defendants sued their creditors; according to the rule repeatedly recognized in our jurisprudence, the present suit was to be cumulated with the insolvents’ proceedings, and the defendants having, by the cession, become incapable of appearing in court to defend this action, it became the duty of the syndic to intervene for the purpose of contesting the plaintiff’s claim and of bringing it to a final and speedy adjustment. The acceptance of the cession by the judge, having the effect of vesting all the debtors’ rights of property in the creditors, it is clear that the plaintiff could not any longer proceed to exercise his privilege, if any he have, on the property sequestered, and that the printing establishment in question having been delivered by the insolvents to their creditors, the same is to be J sold by the syndic in due course of law for the benefit of the . . , mass, the privilege ot the vendor being preserved on the proceeds of the sale; if so, the order of sequestration preventing said sale became useless and must be rescinded, and the syndic J ought to be allowed to sell the property sequestered as being . , . . . . . , . , a part ot the insolvent estate, without prejudice to the rights which the plaintiff may have on its proceeds under the allegations set forth in his petition.

We- are of opinion that the order of sequestration was properly cancelled-, so a-s to authorize the syndic to proceed to the sale of the property in dispute in the manner and with the reservations contained' in the judgment appealed from.

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