
    
      HANNA vs. HIS CREDITORS.
    
    The landlord has a privilege on the goods in the store, and furniture in the house, for his rent.
    But he must urge it within a fortnight after the removal.
    A judgment not registered gives no privilege.
    
      Appeal from the court of the parish and city of New-Orleans.
    
      Seghers, for the syndics.
    Ten creditors have opposed the homologation of the tableau.
    1. Samuel Packwood is on the tableau for the amount of his claim; but he contends that he is entitled to a privilege, as his claim is for the rent of the house in Bienville street, occupied by Hanna up to his failure. The question of privilege is submitted to the court.
    East'n District.
    June, 1822.
    An attaching creditor loses his lien, in case of insolvency.
    A plaintiff acquires no lien, by taking out a fi fa and countermanding its execution.
    Nor by taking it out and forbearing to take an alias, on its return
    A decree that a garnishee pay the plaintiff the funds of the defendant, is tantamount, to a judgment.
    A garnishee's admissionproperty in his hands, in his answers to interrogatories, is not a voluntary confession of judgment.
    A judgment gives a lien, not on its being docketed, but on its being registered with the recorder of mortgages.
    The certificate of the recorder of mortgages, is legal evidence.
    
      2. Madame Papet is also on the tableau and claims likewise a privilege—the debt proceeding from house rent; but it is in evidence that Hanna left her house, in Customhouse street, fourteen months previous to his failure; the syndics therefore maintain that this opposition ought to be dismissed.
    3. The tutrix of the heirs of Peter V. Ogden, claims $630, for store rent. It is in evidence that Hanna rented his store from P. V. Ogden, but there is no evidence as to what was due at his failure; M. Morgan deposing only what he heard from P. V. Ogden. The syndics however admit from the books of Hanna, that seven months were due ; but at the same time they set forth from the same books a set-off of $253 48, for sundries furnished by Hanna to P. V. Ogden during that period; which leaves a balance in favor of the heirs of P. V. Ogden of $236 52; for which sum they have no objection to his being placed on the tableau as a privileged creditor; but they oppose any further claim of his.
    
      A creditor may pursue his remedy, till a stay of proceedings arrests him.
    4. B. Levy and Chs. Thomas, syndics, &c. claim $68 67½ as ordinary creditors, and $22 25 costs, as a privileged debt, by virtue of a judgment of the city court of appeals. The syndics contend, 1st, that the oponents ought to declare of what estate they are the syndics; and 2dly, that a detailed statement of taxed costs must be produced. With these observations the matter is submitted to the court.
    5. Kirk & Mercien claim $152 08, as ordinary creditors. The syndics do not contest the claim, as it appears to them a just debt, and they have no objection that it should be admitted.
    6. James Ronaldson claims a privilege for the amount of the debt and costs. The debt is placed on the tableau as an ordinary one; the costs paid to the sheriff by the syndics. Therefore, the only question to be decided on this opposition, is whether the opponent is entitled to a privilege. He grounds this claim on his attachment, which was issued August 17th, 1820, the day previous to the stay of proceedings. The counsel for the syndics thinks it hardly necessary to refute the claim. At all events, he refers the court to 2 Martin, 89, and entertains no doubt but that this opposition will be dismissed.
    7. Gilbert E. Russell & Co. are placed on the tableau as ordinary creditors. They claim a privilege grounded on a judgment, which they obtained against Hanna in the district court, and on a writ of fi. fa. issued thereon. By the record of their suit, it appears that the judgment was rendered December 1st, 1819, but that no execution ever issued, and that no other step was taken thereon. The syndics contend that Hanna was in failing circumstances previous to the date of said judgment, and moreover, that the mere judgment creates no lien on the property, and consequently no privilege. The syndics therefore maintain that this opposition must be dismissed, reserving to explain hereafter, what is to be understood by failing circumstances.
    8. Lefort is likewise placed on the tableau as an ordinary creditor. He claims a privilege grounded, both on a judgment which he obtained in the district court and on a writ of fi. fa. issued thereon.
    The syndics deny the privilege, on the ground that Hanna was already in failing circumstances at the time of, and previous to the date of the judgment, and that therefore, neither the judgment nor the writ of fi. fa. could work a lien on the insolvent’s property to the prejudice of his other creditors. They contend, that had even the fi. fa. ever worked a lien, this lien was dissolved by the plaintiff’s staying the execution and stopping there the proceedings. From the record, which is introduced in evidence, it appears that judgment was rendered April 17th, 1820; that a fi. fa. was issued the same day; that the execution was stayed by the plaintiff in the hands of the sheriff, who returned the writ April 7th, 1821, and that no other or further step was since taken in the cause.
    The syndics, therefore, maintain that this opposition must likewise be dismissed. They rely on the following authorities: Curia Phillipica, lib. 2; Comercio terrestre, cap. 11; Fallidos, p. 406.
    “No. 1. Insolvent are those merchants, brokers and bankers, or their agents, who fail or break at the time of their payment, credits or obligations and contracts.”
    “No. 2. Hence it follows that those are insolvent, who flee, or conceal their persons by retiring into churches or other places, although they do not take away nor conceal any of their goods or books.”
    "No. 3. Hence it follows, likewise, that those are insolvent who break or fail in their credits or obligations, for want of property, though they neither take away nor conceal their property or persons; as also those who cannot entirely pay all their debts, and those who for their debts, are executed in their property by their creditors."
    The No. 2 is explained by the 22d section of the insolvent act of 1817, page 136, which after having stated what persons shall be considered as fraudulent bankrupts, says :— “The same rule shall apply to any insolvent debtor, who shall abscond or absent himself from his usual place of residence, without leaving to his creditors any account of his affairs, and without having previously surrendered to them his property.”
    
      Nouveau Denisart, tom 8, pages 402 et 403, verbo Faillite:—No. 4. Quoique le défaut de payement de quelques dettes, particuliéres ne soit pas un signe absolument certain de faillite, néanmoins, lorsqu'il est suivi du non payement des autres, dettes de 
      
      la rupture du commerce, de la discontinuation de l'etat de banquier, ou autres circonstances, qui constatent la faillite, alors la faillite est ouverte du jour que la failli a commencé de cesser ses payemens. C'est d'apres ce principe que les consuls de Paris consultés en vertu d' un arret de la cour du 20 Janvier, 1755, sur l'époque à laquelle il fallait fixer l'époque de la faillite du sieur Lay de Serisy, ont donné leur avis, le 25 Mars suivant, assistés de plusieurs banquiers et négocians, en ces termes. Estimons tous unanimement, qu' attendu la notoriété de la cessation du dit Lay de Serisy, des le 11 Juin, 1745, et tout ce qui s'en est ensuivi, sans qu'il paraisse les avoir repris, la faillite du Sieur Lay de Serisy doit étré réputée et déclarée ouverte des le dit jour 11 Juin, 1745, date de la première de nos sentences obtenues ontre lui, et qui a été suivie de nombre d'autres sans interruption."
    
    From these authorities it may be inferred what is understood by failing circumstances. I think it is a collection of uninterrupted circumstances preceding the failure, such as do leave no doubt, but that it must ensue; and by the effect of which, the date of the failure is traced back to the beginning of these circumstances, or to the first obligation the insolvent failed to discharge; or in other words, to the first protest or to the first judgment, which he suffered to go against him.
    The evidence on file in this case brings it within each of the provisions of these authorities.
    1. For ten or twelve months previous to his failure, Hanna was greatly embarrassed and his notes were frequently protested.
    2. From the month of January, 1819, up to his failure, that is, to the stay of proceedings, eighteen law-suits were brought against him by his creditors, all for money due, exclusive of two more, viz: that of John Day vs. Eastburne & Co. in which he was sued as garnishee for money due by him to the defendants; and that of Pierre Romain and others for the forced surrender, on which the stay of proceedings was granted, on the 18th of August, 1820.
    3. In thirteen of those suits judgment was rendered against Hanna; the first on the 7th of April, 1819, and so on successively to the 20th June, 1820; in the other suits, writs of attachment and sequestration were issued nearly all in August, 1820.
    4. On six of the above judgments, execution issued, the first in August, 1819, and an alias fi. fa. in November following; the other executions issued all successively in the months of April, May, June and August, 1820.
    5. Under these circumstances Hanna absented himself from this state, on the 23d of July, 1820, without leaving to his creditors any account of his affairs, and without having previously surrendered to them his property.
    Those united signs of an impending failure followed by an actual one, evidently shew that Hanna was in failing circumstances long before the stay of proceedings, and that therefore the date of his failure is to be traced back to a time previous to the judgment of Lefort; if we take for our guide the first judgment, it will carry us back to the 7th of April, 1819; if the first execution, to August or November, of the same year; if the first protest, this took place at least, in or about the month of October of the same year.
    It follows that the judgment obtained by Lefort on the 17th of April, 1820, was rendered, when, legally speaking. Hanna was in open failure, and is therefore void as to the other creditors, according to the provisions of the 17th section of the act of March 25, 1808. 2 Martin's Digest, 454, and the 24th section of the act of 1817, page 136.
    
      9. Moses Duffy is put on the tableau as an ordinary creditor, for the full amount of his claim, it being the same identical one, as that of F. J. Sullivan of Philadelphia, whose agent he is; he maintains he is entitled to be paid by privilege, on the ground that he obtained three several judgments against the insolvent in the district court; the two first on the 7th, and the latter on the 20th of June, 1820, and sued out executions thereon on those respective days.
    The syndics resist the privilege for the following reasons:—1st, That Hanna was already in failing circumstances, when those three judgments were rendered, and even before; 2dly, That supposing that the date of the failure could only be reckoned from the 23d of July, 1820, the day of his departure, or even from the 18th of August following, when the proceedings were stayed; yet the dates of these three judgments fall within the three months immediately preceding either of those two epochs, and come therefore within the provisions of the acts of 1808 and 1817, just quoted. According to these provisions the judgments, and of course the executions issued thereon, are void and can bestow no privilege to the prejudice of the mass of the creditors.
    It may be contended, that neither of those two acts apply to the case, as the one provides for debtors in actual custody, and the other for voluntary surrenders. To this I reply—1st, that this case, which was a forced surrender, has since become a voluntary one, having been consolidated with the latter, which was brought afterwards by Hanna himself; 2dly, that those provisions indiscriminately apply to any case of insolvency; this section of the act of 1808, having been taken by the supreme court as the basis of their decision in the case of Roussel vs. the syndics of Dukeylus, 4, Martin, 212, though Dukeylus' failure was a case of voluntary surrender, and the act of 1817 was not yet enacted. In this case a mortgage was avoided, because it was made within three months of the failure. No difference is made in either of the acts between alienations of property, mortgages or judgments, which are all declared void, if they have taken place within the three months previous to the failure.
    As to the other position I have taken, that Hanna was in failing circumstances previous to the dates of those judgments, and that therefore the date of his failure is, legally speaking, anterior to the judgments themselves, I refer the court to what I have said on this subject and to the authorities quoted in support thereof, in the foregoing part of the argument, relating to Lefort.
    10. John Day is placed on the tableau for the full amount of his claim, as an ordinary creditor. But he pretends that he is entitled to a privilege for the said amount, as well on the immoveables and slaves as on the moveables surrendered by the insolvent. This pretention he rests on the following grounds:
    1. That he obtained a judgment against Hanna in the first district court, for the sum of $2836 55.
    2. That the said judgment was duly docketted, and afterwards, to wit : on the 7th of June, 1820, duly recorded at the office of the recorder of mortgages in the parish of Orleans, and that in consequence of this docketting and recording, all the real property and slaves belonging to Hanna, within this state, were and are bound, and liable for the debt for which the said judgment was obtained.
    3. That afterwards, to wit: on the 8th day of August, 1820, he caused a writ of alias fieri facias to be issued on the said judgment, which writ was delivered to the sheriff on the same day, 8th of August; and that thereby all the personal property of Hanna was from that time bound and liable for the satisfaction of that judgment, into whose hands soever the property might come.
    The syndics resist the privilege, and the better to establish their defence, they have introduced the transcript of the record of the cause in which the pretended judgment was obtained. They ground their defence on the following points:—
    1. There is no judgment against Hanna.
    2. If there be judgment against him, it is void.
    3. The docketting the judgment creates no lien on the real property and slaves of the debtor.
    4. There is no evidence that the judgment was recorded with the register of mortgages, and should it appear that it was recorded, it does not, nor ever did affect Hanna’s real property or slaves.
    5. The writ of alias fieri facias issued and delivered to the sheriff on the 8th of August, 1820, neither did nor could create a lien on the personal property of Hanna, to the prejudice of the mass of his creditors.
    1st point, There is no judgment against Hanna.
    From the record on file, it appears that this suit was instituted against James Eastburne & Co., and that Hanna was made garnishee; that judgment was rendered against the defendants, and that the garnishee was thereby ordered to pay over to the plaintiff the amount acknowleged to have been attached in his hands, in part satisfaction of this judgment.
    The words of this judgment are plain; it goes against the defendants in favor of the plaintiff and goes no further. This court is certainly not prepared to construe it into a judgment against Hanna; nor is there any provision in our laws, under which such judgment could have been rendered. The act of March 20th, 1811, 1 Martin's Digest, 518 to 522, is the only one which provides for garnishees, and the 3d section of it points out the sole instance in which judgment may be rendered against them. Now, the case of Hanna did not come within the provisions of this section; for the record shews that he had neither neglected nor refused to answer the interrogatories, propounded to him by the plaintiff. Nor can the latter shelter himself under the 5th section to maintain that his judgment goes against Hanna; this section allows in no case judgment against the garnishee personally, but merely provides that after judgment has been obtained against the defendant, the goods, chattels, &c. which shall be made to appear in the possession of the garnishee, shall be adjudged accordingly, and shall be subject to execution. What else then is thereby provided, but that if there be judgment against the defendant, his goods, chattels, &c. in the hands of the garnishee, shall be adjudged and held subject to the execution on said judgment.
    This is far from authorising a judgment against the garnishee personally; nor did the district court fall into the error of rendering any against Hanna in this instance; it is merely an order directed to him, as it would be to the sheriff, or any other depositary, to pay over to the plaintiff the amount attached in his hands, in part satisfaction of the judgment against the defendant. No sum is specified against Hanna, which would have been indispensable in a judgment. I therefore maintain that there is none against him, nor was there any occasion for one; for as I shall soon observe no part of the sum attached in his hands, was yet due at the time the judgment was rendered.
    2d point. If there be judgment against Hanna, it is void.
    1st. At the time it was rendered, Hanna was already in failing circumstances; he was greatly embarrassed in his affairs, and had, since two months and upwards, his notes frequently protested; three judgments had already been rendered against him ; three others followed immediately, and six more at short intervals, whilst the protests were continuing, and the embarrassment increasing till they ended in the actual failure. These facts appear from the evidence in the cause; for the inference therefrom to be drawn, the syndics rely on the following authorities: Curia Phillipica. lib. 2, Comercio terrestre, cap. 11, Fallidos, p. 406. No. 1, No. 2 and No. 3. Nouveau Dénisart, tom. 8, pages 403 et 402 verbo Faillite.
    
    The No. 2, Fallidos, Curia Phillipica, is explained by the 22d section of the insolvent act of 1817, page 136. From these authorities, it may be inferred, what is understood by failing circumstances. I think it is a collection of uninterrupted circumstances preceding the failure, such as to leave no doubt but that it must ensue ; and by the effect of which, the date of the failure is traced back to the beginning of these circumstances, or to the first obligation the insolvent failed to discharge; or in other words, to the first protest, or to the first judgment which he suffered to go against him.
    The evidence on file, in this case, brings it within each of the provisions of these authorities. It is true that Hanna had not yet, previous to the judgment, left the state of Louisiana, but it is in evidence by the depositions of two or more of the witnesses, that for two months and more previous to the 14th of December, 1819, he was daily protested.
    2dly. Under these circumstances, Hanna confessed this judgment before the maturity of the debt. He owed nothing to Day, the plaintiff; James Eastburne & Co., the defendants, were his creditors. By the attachment Day became subrogated to their rights against Hanna; but this could not place him on a better footing than they were themselves. We find that the sum, which he acknowleges to owe Eastburne, was payable in several instalments, whereof the first would be due on or about the first of March, 1820, when sixty days more were to be allowed for its payment; so that in fact it became due but on or about the first of May, and so on with the other instalments successively, up to the 27th of September, 1820, including always the sixty days.
    On this confession of Hanna, has the judgment been rendered on the 24th of December, 1819. This fact, though denied by John Day, does no less appear on the face of the record of his suit, which is on file in this cause. Could it avail Day, and consequently James Eastburne & Co. to the prejudice of the mass of Hanna’s creditors, this would amount to nothing less than indirectly granting the latter a privilege, which they would have been denied, had they sued Hanna in their own name; for I see no difference in the contemplation of the failure between a confession of judgment made by the debtor before the debt falls due, with the view to give one creditor an undue preference over the others, and the discharge of a debt nor yet payable, when the debtor has not wherewith to pay demands which falls daily due. The law reprobates and avoids both; for the former position, I refer the court to the two insolvent statutes of March 25, 1808, 2 Martin's Digest 454, and of 1817, 24th section, page 136. For the latter position to the opinion of the supreme court in the case of Roussel vs. the syndics of Dukeylus, 4 Martin, 240 and 241.
    It may be contended that neither of those two insolvent statutes apply to the case, as the one provides for debtors in actual custody, and the other for voluntary surrenders. To this I reply—first, that this case, which was a forced surrender, has since become a voluntary one; having been consolidated with the latter, which was brought afterwards by Hanna himself; secondly, that those provisions indiscriminately apply to any case of insolvency. No difference is made in either of the acts between alienations of property, mortgages or judgments, which are all declared void, if they have taken place within the three months previous to the failure.
    3d point. The docketting the judgment creates no lien on the real property and slaves of the debtor.
    
      It is true that by the 13th section of the statute of 1805, 2 Martin's Digest, 164, it is provided that the docketting of a judgment shall bind the real property and slaves of the person against whom such judgment has been rendered; but I contend that this provision has been repealed by the Civil Code, which enacts, page 454 art. 14, that judicial mortgages cannot operate against a third person, except from the day of their being recorded in the office of the register of mortgages; and by the 7th section of the act of March 26th, 1813, 1 Martin’s Digest, 702.
    But it has been erroneously asserted that the syndics do but represent Hanna himself, and that his property cannot be considered as having passed into the hands of third purchasers.
    The contrary doctrine, on which we rely, is grounded on the well known principle that the cession or surrender does not transfer the property of the insolvent’s estate to his creditors, but that their syndics take possession thereof in the same manner as does the sheriff, when he seizes the defendant’s property on a writ of execution, and that therefore, the creditors, by their syndics, preserve all their exceptions against any claim of privilege by mortgage or otherwise, just as would a third purchaser. This doctrine is explained in the first volume of the Nouveau Denisart, verbo Abandonnement.
    
    4th point. There is no evidence that the judgment was recorded with the register of mortgages; and should it appear that it was recorded, it does not, nor ever did affect Hanna’s real property or slaves.
    The only evidence that has been introduced of the recording of the judgment with the register of mortgages, is a certificate of the said register, delivered on the 23d of November, 1821, and which has been filed by the opponent on the 22d of December following. From the inspection of this document, the court will perceive that it must be disregarded and can by no means be admitted as evidence in the cause. It is a general rule that a copy authenticated by a person appointed for that purpose is good evidence of the contents of the original. But where the officer is not intrusted to make out a copy, and has no more authority than any common person, the copy must be proved in the strict and regular mode. Phillips’ Evidence, 292. This rule applies to the recorder of mortgages, as to any other public officer; when he certifies the contents of his own records, his certificate may be good evidence; but not so when he certifies which must appear from other records than his. Now, here he certifies that in a certain cause, depending in the district court, judgment has been rendered. It will certainly not be contended that the register of mortgages is the proper officer entrusted to certify the judgments of that court. On this point, he has no more authority than any common person, and his certificate therefore, as far as this, must be disregarded. Were his evidence admissible on this point, it should be given on oath; I maintain however that it is altogether inadmissible, as the judgments of a court of justice can only be certified by its clerk and under its seal.
    The recorder, after having thus certified that such a judgment has been rendered, and after having further certified its contents, goes on and equally certifies that the above judgment has been registered. Now, if the first part of the certificate be void, it must be considered as being neither written nor introduced; and hence it follows that the latter part certifies nothing as it relates to a judgment, which is not mentioned. Besides, I maintain that no certificate of this kind can be admitted to prove the recording of a judgment. A copy duly authenticated or certified by the register of mortgages under his hand and seal must be produced, of that part of his records, which contains the said registering. This he is authorised to certify but nothing else; his authority goes no farther.
    I conclude that there is no evidence of the recording of any judgment against Hanna.
    Should the court however be of opinion that the judgment was recorded on the 7th of June 1820, as it is contended by the opponent, I would then further maintain that this recording could not affect the real property or slaves of Hanna, but only those of the defendants, and this for the following reasons:
    1. This judgment is not rendered against Hanna, as it has already been observed, but against the defendants.
    2. This registering, if it could affect Hanna’s property, was void from the beginning because it created a mortgage on the insolvent’s property within the three months of failure.
    
      5th point. The writ of alias fi. fa. issued and delivered to the sheriff on the 8th of August, 1820, neither did nor could create a lien on the personal property of Hanna, to the prejudice of the mass of his creditors.
    The first writ of execution, or fi fa., was issued in May, 1820, but on this the opponent does not rely; he is aware that it could not avail him. Scarcely were two of the instalments due, when the writ issued, the balance was not yet payable; and, notwithstanding, the whole was included in the execution; this, however, was stayed by the plaintiff, in the hands of the sheriff, as it appears from his return on record, and could therefore create no lien, nor does the opponent claim any under this first writ. But he asserts that by delivering, on the 8th of August, 1820, the second writ of alias fi. fa., to the sheriff, all the personal property of Hanna became bound and liable for the satisfaction of this writ; and that by the seizure made afterwards by the sheriff, by virtue of said writ, of Hanna’s said personal property, he the opponent obtained a lien and privilege on the same for the amount due on his judgment.
    
      This lien, this privilege the syndics resist, relying on the following grounds:—
    1. The judgment, as it stands, is against the defendants, not against Hanna, and consequently no writ could issue against his personal property.
    2. Admitting, for the sake of argument, that the judgment goes against Hanna, and that the execution thereon was rightfully issued on the 8th of August, 1820; yet the syndics maintain that the statute of 1805, providing that the delivery of such a writ to the sheriff, shall bind the personal property of the person against whom it is directed, and the Spanish law assuring to the seizing creditor a privilege on the property seized in execution, are both limited by the insolvent laws. They do by no means extend to cases of insolvency, which are governed by far different rules. Roussel vs. Dukeylus syndics, 4 Martin, 238.
    Besides a simple reference to the dates will make it appear how groundless are the pretentions of the opponent. He tells us that the writ was issued on the 8th of August, and that the seizure took place afterwards. Now, it is in evidence, that Hanna left the state on the 23d of July, and that the stay of proceedings was issued on the 18th of August. I have shewn, by positive law, that this departure of Hanna opened the failure, and that is at least to this epoch that it must be traced. Therefore, in such a state of things, no lien, no privilege, could accrue to the prejudice of Hanna’s creditors.
    Were it possible that grounds so strong should be overlooked, one still stronger remains. Bloomfield, one of the witnesses, deposes, that Hanna’s embarrassments were daily increasing; that for some weeks previous to the failure, he was kept up by the opponent, on paying one hundred dollars a week; that the deponent, who was Hanna's agent, since his departure, finding it impracticable to make up this weekly sum, requested the agents of the opponent to take possession of the store, which they did by sending the sheriff, who made the seizure. Hence, is it not clear that the writ was issued, and that the seizure took place at the instigation of the debtor, who being about to fail (were even any other epoch of the failure than the stay of proceedings disregarded) did openly collude with one of his creditors to give him an undue preference over the others?
    
      Workman for Day.
    one of the opposing creditors and appellant. The appellant obtained judgment against Eastburne, and against B. Hanna, as a garnishee in that suit, in the first district court.
    That judgment was docketted on the 14th December, 1819.
    It was registered at the mortgage office, 7th June 1820.
    A writ of fi. fa. issued thereupon, 22d May, 1820.
    A stay of execution having been granted to Hanna, an alias writ of fi. fa. was issued 8th August, 1820.
    By virtue of this last writ, the sheriff seized and took possession of the goods of Hanna, on the day it issued. And on the 18th of the same month and year, while the sheriff was in possession of those goods, a petition, for a forced surrender, was presented by some of Hanna's creditors, and an order for a general meeting of the creditors, and a stay of proceedings was obtained.
    From these facts, I contend that the judgment obtained against B. Hanna as garnishee, gives to the plaintiff and appellant a lien on all Hanna's real property and slave, from the date of the docketting of that judgment, viz : the 14th December, 1819. This property is now subject to the same claims and privileges as if it had remained in the possession of Hanna. It did not cease to be Hanna's till it was sold by his syndics. They held it merely as his representative. They cannot be considered as third parties, if they were so considered, they would not be bound by this judgment against Hanna, nor by any other judgment that could have been obtained against him. They might deny the debt, and drive the plaintiff to a new suit;—a consequence absurd in itself, and contrary to all the known provisions, and invariable practice of our insolvent laws.
    Even in the hands of third possessors, this judgment would bind Hanna’s real property, from the date of the registry. The counsel’s remarks on the certificate of the register of mortgages, are refuted by an inspection of that document itself. It proves the registry indisputably. 1 Martin's Digest, 164.
    It is also clear that the moveable property of Hanna was bound by the writ of fi. fa. at least from the 8th August, 1820 (the date of the second writ of execution) if not from the 22 of May preceding. 2 Martin's Digest, 168 and 9 Martin, 585.
    In opposition to this claim, it is said, first, that there is no judgment against B. Hanna. The record of the original suit against Eastburne shews that the judgment, or order of the court is as precise, positive, and formal against Hanna, for the amount which he declared he owed to the defendant, as against that defendant himself, for the whole amount of the debt. It is difficult to conceive how any judgment could be given against a garnishee, in a more regular and legal manner than that rendered in this case against Hanna.
    2. It is further said that no execution can be issued against the garnishee’s property.— Then the whole proceedings of attachment would be a mere mockery of justice. If you can not make the garnishee pay what he acknowleges he owes to your debtor, it is quite idle to attach that debt in his hands. But our law is not so vain and nugatory. The legislature has provided by the 3d and 8th sections of the act of 1811, 1 Mart. Dig. 520, 522, that execution shall issue against the garnishee. The Spanish law had the same provision. Execution might be had against moveable property, against immoveable property, and against debts, rights or actions. Part. 2, 27, 3. And when the execution was directed against the debts due to the defendant, the debtors were cited, as if the execution was against them; and proceedings might be taken against those debtors to compel them to pay what they owed to the defendant, if the defendant himself did not pay. Febrero, p. 2. c. 2. no. 170.
    As our law now stands, no other mode of judicial compulsion could be adopted in our case but that by the writ of fi. fa. of which we have availed ourselves. The writ of distringas, which it is pretended would have been the proper one, is applicable only to compel the performance of any specific act, other than the payment of money. 2 Mart. Dig. 174. In the attachment laws which our assembly probably had in view, when our attachment statutes were passed, the writ of fi. fa. against the garnishee is allowed. Sergeant's At. Laws, 206.
    3. It is also objected that this judgment has been obtained by collusion with Hanna, to the injury of his other creditors. The very reverse is abundantly proved. It appears from the record, that the garnishee Hanna took time to amend his answer to the interrogatories, and that in his amended answer he extends the periods for the payment of the sums due by him to the defendant. It will also be seen that the first writ of execution against him was stayed for some months, to give him time to make gradual payments, to continue his business and satisfy all his creditors. The whole of this business was manifestly transacted with good faith, lenity and indulgence on the part of the plaintiff—and with fair and honest intentions on the part of the garnishee.
    4. The judgment, it is further urged, was obtained against Hanna, when he was in failing circumstances—proximo á quebra—about to fail. The evidence to shew that he was in such circumstances is extremely vague and unsatisfactory. It amounts to no more than this, that he frequently neglected or refused to pay his debts. The same thing might be proved every day against some of our opulent citizens—men who hold large and valuable property, ten times more than sufficient to pay all their debts, but who seldom or never do pay any of them, till compelled by judicial process. Far be it from me to cast any reproach upon these worthy persons. Perhaps they deem it safest to have the payment of their debts made matter of record: or may be they are moved by the laudable desire of maintaining our useful profession in profitable practice—of keeping the learned judges in full study and occupation, and making their fellow citizens constantly know and feel the full value of the administration of justice.
    Whether Hanna was or was not in failing circumstances is quite immaterial. The judgment against him has been declared valid.—Had he made a payment on that judgment, at any time before his actual failure, it would have been likewise valid, and of course not subject to repetition by the syndics. Such a payment would have been at least equal to any bona fide payment he could make in the ordinary course of business.
    To maintain that the lien secured to us by our writ of fieri facias, could be defeated by the subsequent petition of the creditors of our debtor, is to maintain that the law may be set aside or rendered nugatory by the mere act of individuals who might be interested to oppose its execution. The decision of this court to which I have already referred, sets this point at rest.
    Independently of all these reasons, the dates of the transactions referred to, would be sufficient to defeat the pretence set up in opposition to our claim. Our judgment was obtained more than eight months previous to the forced surrender. And our statutes specify three months previous to the failure, as the extent of the period during which deeds or judgments given by the insolvent, may be set aside.
   Martin, J.

delivered the opinion of the court. This case comes before us on the appeal of John Day from the decision of the judge a quo in dismissing his opposition to the homologation of the tableau of distribution, made by syndics. As by his opposition this creditor contests the claims of the other creditors it becomes necessary to examine them all.

1. The parish court was certainly correct in allowing Packwood, the insolvent’s landlord a privilege on the goods, which the latter had seized to secure the rent due. Civ. Code, 468, art. 74.

2. Madame Papet’s claim was rightfully repelled, as she suffered more than a fortnight (the legal time) to elapse, after the furniture was removed from her house, id.

3. Ogden’s heirs were properly allowed a privilege for the goods, in their store occupied by the insolvent, at the time of his failure.

4. Levy and Thomas were justly placed as ordinary creditors for the amount of the judgment, and as privileged ones for the costs, as their judgment was not registered. 1 Martin's Digest, 702.

5. Kirk & Mercein’s claim does not appear to have been contested.

6. The attachment sued out by Ronaldson cannot avail him. We think with the superior of the late territory, that an attachment gives no lien in case of the defendant’s failure. Marr vs. Lartigue, 2 Martin, 89.

7. The judge a quo was correct in concluding that the judgment of Gilbert Russel & Co. not having been registered, did not give them a privilege.

8. He did not err in denying a privilege to Lefort, who, in this respect, was in the same situation as the preceding creditor. The fi. fa. did not place Lefort in a better situation; for having countermanded the execution of it, and having forbore on its return to keep it alive by issuing an alias, he cannot claim, any advantage under it.

9. Duffy’s situation does not materially differ from that of Lefort. The only difference is that the former did not countermand the execution of his fi. fas. But they were neither executed nor followed up by alias'.

10. Day’s claim is resisted on the ground that there is no judgment against Hanna, and if there be it is void, and that the docketing of the judgment creates no lien; that it was not recorded, and if it was it creates no lien neither does the fi. fa.

I. It is true there was no original suit instituted by Day against Hanna; but in a suit brought by the former against Eeastburn & al. the latter was summoned and interrogated as a garnishee, and on his oath admitted he owed a certain sum to the defendants, which on the plaintiff recovering judgment he, Hanna, was directed to pay, as part of the sum recovered from the original defendants. Now a garnishee is a party to a suit: when he admits or it is proved, contradictorily with him, that he owes or has effects belonging to the said defendant, and when he is by the court directed to pay, the judgment is as complete against him as against the said defendant. There cannot be any doubt that, if he be ordered to pay what he does not owe, he may appeal.

II. Hanna did not confess judgment. A confession of judgment is essentially a voluntary act. He did what he was compelled to do, and his compliance with the law, in declaring the truth, granted nothing which it was in his power to have withholden.

He had not at the time failed. Now, if his creditors considered it needless to apply for a suspension of legal proceedings against him, such proceedings might well, be continued or commenced against him; and if, before the suspension, they matured into a judgment, we do not see that the creditor can be deprived of the legal consequences of his diligence.

III. We think that the recording, not the docketing of the judgment, creates the lien.

IV. It is certainly true that the contents of an act, in the possession of an officer, while it exists, cannot be proven otherwise than by the production of the original, or his giving a copy of it. He cannot attest its contents orally, nor by his certificate. A recorder of mortgages, who has recorded a judgment cannot certify its contents, nor perhaps its existence; but he may certify that there is no record of any judgment or mortgage. Indeed, that is the way in which notaries now ascertain the absence of liens; and when the recorder certifies that there is no lien but such and such mortgages, he by a negative pregnant, certifies that such mortgages are registered in his books. He might transcribe all the entries in his book against the property of an individual, and attest that this is all that is against him; but the practice, which is sanctioned by long usage, is to certify that such and such mortgages are registered. We think this suffices without giving a formal transcript of the entries on his books, which could not be more satisfactory. We conclude that the certificate of the recorder of mortgages, shews, in this case, that Day’s judgment was recorded.

The effect of the registry of a judgment against a garnishee, who is decreed to pay a sum of money, must have the like consequences as that of a judgment against a party called on to warrant or defend.

The registry, in this case, took place before any stay of proceedings granted.

V. Leges vigilantibus, non dormientibus serviunt. The creditors of the insolvent, who laid by, and forbore to exercise their respective rights individually or collectively, cannot defeat the right of him who, while legal proceedings were unstayed, began and continued his, unaided by the common debtor.

It appears to us the parish judge erred in refusing the opposition of this creditor.

It is therefore ordered, adjudged, and decreed, that the judgment of the parish court, as far as it relates to the creditors, Packwood, Papet, Ogden’s heirs, Levy & Thomas, Kirk & Mecein, Ronaldson, Gilbert Russell & Co., Lefort, and Duffy, be affirmed; but as far as it relates to the opposition of John Day, be annulled, avoided, and reversed; and this court proceeding to render such a judgment, as might herein to have been given in the parish court,

It is ordered, adjudged and decreed, that John Day be placed on the tableau of distribution for the amount of his judgment against the insolvent, as a privileged creditor on the land and slaves, from the 7th of June, 1820; on the personal estate from the 8th of August, following; and that the syndics and appellees pay costs on this application in both courts.  