
    
      BLOSSMAN vs. HIS CREDITORS.
    
    Appeal from the court of the parish and city of New-Orleas.
    
      An appeal from an order, refusing to permit the plaintiff to make a voluntary surrender, will be dismissed, if the record shew that his creditors had obtained an order for a forced surrender, without shewing how far they had proceeded therein.
   Porter, J.

delivered the opinion of the court. The appeal is taken in this case from an order of the parish court, refusing to permit the plaintiff to make a voluntary surrender of his property. The reason assigned by the judge for his decision, was that a forced surrender had already been obtained by the defendants against the plaintiff. The correctness of this opinion depends on the length to which these proceedings had been carried before this application was made, as they may have gone so far as to render it impossible for the debtor to comply with the act, of which he claims the benefit.

East’n District.

June, 1822.

What is related in the opinion of the judge a quo cannot be received as evidence on the appeal.

Nothing in the record enables us to ascertain this fact so indispensable to a correct understanding of the case. The motion made by counsel is to set aside the order and proceedings had in the case of Bickle & Hamblett vs. Blossman for a forced surrender, without stating at what stage they had arrived; what is related in the opinion of the judge, it has already been decided, cannot be noticed as evidence of the facts. 3 Martin, 221. 11, ibid. 453. Were we to receive it as such, a strong case would be made against the plaintiff; for the judge does not state that procedings on the part of the creditors had been commenced against him; but that a forced surrender had been obtained.

Carleton for the plaintiff, Morse for the defendants.

It is therefore ordered, adjudged and decreed that the appeal be dismissed with costs.  