
    
      RUSSELL & AL. vs. WOLFF & AL.
    
    Appeal from the court of the parish and city of New Orleans.
    If there be two defendants, and one of them makes a cession of his goods—the suit, as to him, will be transferred to the court before whom the concurso is pending, and retained as to the other defendant.
   Mathews J.

delivered the opinion of the court. In this case, suit is brought against a commercial firm, composed of H. C. Conn, & Co., and. H. C. Conn, jur. and Wolf, Conn, & his Co., are charged as the purchasers of certain merchandize, for which they failed to pay; and Wolff, as liable to pay the amount, claimed from the former, on account of having fraudulently recommended them to the plaintiffs as good solvent persons, knowing at the time that they were insolvent persons, and unable to meet their engagements. The petition also contains an allegation, that Wolff has obtained from them a fraudulent sale and transfer of all their property, to the prejudice of the petitioners, which they pray may be annulled and set aside, &c. Since the commencement of this action, Conn, jr. & Co. instituted proceedings against their creditors, in the district court: and the defendants, in the present suit, obtained an order in the court below, to have the case sent to the district court, to be cumulated in the concurso. From this order or decree, the plaintiffs appealed.

In relation to that part of the petition which claims the debt sued for, from Conn, jr. & Co. and also that which alleges a fraudulent transfer of their property to Wolff, the decree of the parish court is correct. But the court on allegations which charge the latter, as liable to pay the amount demanded by the petitioners, in consequence of false representations, made to them at the time of the sale of the goods made to the former; and all facts alleged separately against the defendant, Wolff, on which issues have been joined in the parish court, should be then tried and determined. That court did not lose its jurisdiction in relation to matters which affect Wolff, separately, and in his individual capacity, in consequence of the failure and proceeding in bankruptcy, by the other defendants, Conn & Co.

Lockett for appellants.

It is therefore ordered adjudged and decreed, that the decree and judgment of the parish court be avoided reversed and annulled; and it is further ordered, that the cause be remanded to said court, with insructions to retain jurisdiction of all matters therein, which relate to the defendant, Wolff, separately, and to proceed to treat thereon; and that the cause, so far as it relates to allegations and charges against him and the defendant, jointly against them, separately be transferred to the district court, to be proceeded on, in the concurso, the appellee paying cost of this appeal.  