
    Girod v. His Creditors.
    A claim for real estate cannot be compensated against sums due by promissory notes. 0. 2205. a
    Ueconventional demands are not exceptions within the meaning of the- rule,- Qua témporalia sunt ad agendum, perpetua sunt ad excipiendum. The only exceptions to which that rule applies, are those which are attached to the action and inseparable from the demand.
    The rights of tho creditors to plead prescription against notes of an insolvent which had been prescribed before the failure, cannot be affected by the fact of the insolvent's having placed them on his hilan. C. C. 3429".
    Where an appeal taken from a judgment homologating a tableau of disribution filed by the syndic of an insolvent estate was not granted in open court, none but the parties cited will be presumed to have had notice of it.
    Arts. 592, 888, of the Code of Practice, which authorise an appellee, though be had not appealed from the judgment of the lower court, to pray that it may be reversed on those points in which lie believes that he has been aggrieved, apply only where all the parties have been cited on the appeal, and all the issues tried in the first instance are appealed from.
    In the general administration of the effects of an insolvent, the syndic represents the creditors, but in the concurso they act in their own names. The decision upon each claim is a separate'judgment, belonging to the party in whose favor it is rendered, which cannot bo disturbad on appeal unless that party be cited. The syndic may appeal from the judgment rendered upon any one claim, and litigate it with the holder; if he does not, any creditor may; but if neither appeal, there can be no adjudication upon their rights in the Supreme Court.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, I. The facts of this case are stated in the opinion, infra.
    
    
      Rosclius, for the appellants. B'vron, one of the appellees, pro se.
    
    
      L. Janin, appeared for himself, for the syndic, and another appellee.
    The notes made by the insolvent were prescribed at the time of filing his hilan ; the acknowledgment of them on the bilan cannot affect the creditors. Larlhe'i v,. Hogan, 1 An. R. 330.
    Ti e piea of compensation is-inadmissible. Art. 3363.of the Civil Code, the same as art. 1291 of the French Code, says: “Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity' of consumable things, of one of tito same kind, and which are equally liquidated and demandabie.” Here, real estate, and not a sum of money or a quantity of consumable things, was due by Nicolas -Girod. See also P.othier, Obligations, no. G24. Touilier, vol. 7, 'nos. 364-6. Holland de Villargues, vol. 2, Vo. Compensation, p. 258. The two debts, were not equally liquidated and demandabie, which can take place only in relation to sums of money and “ consumable things.” 12 Dura-nton, p. 512, nos. 398, 399. Lacoste v. Borderes et al. 7 Mart. N. S. p. 516. The debt of the insolvent was prescribed, when Girod’s executors proposed to compensate it. .Holland de Villargues, verbo Compensation, vol. 2, p. 258, no. 21. 13 Duranton, p. 516, no. 408. Merlin, Questions de Droit, Vo. Compensation. These authorities show, that under .such circumstances as are exhibited by this case, a prescribed debt cannot be offered in compensation.
    Art. 2207 of the Civil Code (the same as art. 1293 of the french Code) says.: “Compensation takes place, whatever be the .causes of either of the debts, except in case : 1st. Of a demand of restitution of a thing of which the owner has been injustly deprived. 2d. Of a demand of restitution of.a deposit, &c. &c. The circumstances from which this piea of compensation arises show, that the executors attempt to oifer in compensation real estate, of which the heirs of Claude Francois Gir.od had been injustly deprived, since 1813. Rolland de Villargues, vol. 2, p. 259, no. 24. And finally, this teal estate was in the hands of Nicholas Girod,ns testamentary executor, that is to say as a depositary. See the authorities above cited, and Pothier, Obligations, «o. 625. Amelung's Syndics v. Bank of the United States, 1 Mart. p. 3.
   The judgment of the court -was pronounced ‘by

Rost, J.

The executors of Nicholas Girod have appealed from a judg-

ment homologating a tableau of distribution filed by the syndic in this case, anil sotting aside their claim to compensate tho sum of ¡$2.807, being the amount of five promissory notes subscribed by the insolvent in favor of Nicholas Girod, in 1833, against an equal amount of the share of the insolvent in the succession of Claude F. Girod, for which the appellants are bound to account, under the decree of the Supreme Court of the United States in the case of Michou et al. v. Girod et al., 4 Howard’s Rep. 503.

The claim of the heirs of Claude F. Girod was for real estate, and cannot be compensated with sums of money due on promissory notes. C. C. 2205. Tlie claim of the executors of Nicholas Girod is in the nature of a reconven.tional demand, tending to establish compensation, and affecting in no manner the rights of the insolvent under the judgment of the Supreme Court of the United States. Reconventional demands are not exceptions within the meaning of the rule Qua temporalia, as contended by the appellants. If the laws of prescription could be evaded, by thus disguising principal demands, those laws would become in most cases inoperative. The only exceptions to which the rule Qua !temporalia applies, are those which are attached to the action and inseparable from the demand. They must, in the language of commentators, he visceral. 2d 'Propiopg. Prese, no. 833.

More than five years had elapsed after the maturity of those notes when the insolvent failed; .and the fact that he placed them on his hilan cannot affect the rights of .the other creditors in the fund to be distributed. They may plead prescription, if .he does pot. C. C. 342.9.

The .appeal in this .case was n.ot granted in open court, and none but the parties .cited are presumed to have had notice of it. The only issue formed before ¡this co.ur.t, is in relation to the .claim which we have already considered; and although any ,of the .parties cited may copie into .court .and ask that the judgment be amended in relation to that claim, they cannot do so for the purpose of litigating the .claims ,of creditors not made parties to the appeal, or of establishing .claims rejected by the .court .below, and having no .connection with that of the appellants. Tire error which has produced this confusion, arises from .considering the decree homologating the tableau as .one entire judgment, whilst it is in reality copip.osed .of many distinct adjudications, one of which only is appealed from.

The dispositions of art. 592 and 888 of .the .Code of Practice are exclusively applicable to cases ip which pH the parties have been cited, and all the issues made in the first instance are appealed from.

In a case lately determined .all the parties but one were b.efor.e us, and, as the ¡appeal had been taken by motion, we held that this party had notice of it, and should be considered as an appellee within the intent .of the articles of the Code of Practice. The opposing creditors ip this case cannot be so considered, beyond the single issue appealed from.

In the general administration of the effects of the insolvent, the syndic rer presents the .creditors; hut ip the concurso, the creditors act ip their own names. The decision of the .court upon .each claim is .a separate judgment, which belongs to the party in whose favor it is rendered, .and which .cannot be disturbed on appeal, unless .that party be cited- The sypdic may undoubtedly appeal from .the judgment rendered upon any one claim, .and litigate it with the holder; if he does n.ot, .other creditors may. But if neither the syndic nor any,of the creditors appeal, the parties are not properly before us, apd we .cannot adjudicate upon their rights.

The yery object .of the proceeding in .concuno would be defeated, if, after the credit.orshad.e.stablishedtheir claims contradictorily with each other in the first Instance, those claims could be .adjudicated upop, ex parte, in the last resort. The parties before us have taken this view of the law, as they have pot deemed •jt necessary to make the syndic a party to the appeal.

In cases like this, parties considering themselves aggrieved by a judgment, jnust appeal, and make proper parties. It is our endeavor to foster liberality in ¡the professional intercourse of the bar, but we d.e.em it a duty to discourage Io,os.epes,s of practice, on .all proper occasions.

/udgment affirmed,  