16 La. 348 | La. | 1840
delivered the opinion of the court.
John Campbell, the appellant, having made a surrender of his property to his creditors, who thereupon met and appointed a syndic. Bailey, a judgment creditor, presented his petition to the District Court, in which he alleges, as grounds of opposition, first, that the insolvent, although a merchant, did not produce to the judge who accepted the surrender, his commercial books; that he did not specify any of his rights and credits ; that he made no assignment to his creditors, and no assignment could be made without specifying each right and credit; that he had not set forth the cause of his losses; and that one cause assigned is false, to wit: that his wife had withdrawn her dower, she never having had any dower, but that her property was all paraphernal, which he had not legal right to administer. He further alleges, that the insolvent has been guilty of fraud towards his creditors, and consequently is not entitled to the benefit of the insolvent laws. He enumerates as fraudulent acts, that the insolvent had confessed judgment in May 1838, in favor of Kimball & Pomeroy; that he was prosecuting a suit in the District Court against Mary S. Skinner, upon a claim not specified in his schedule; that he had received information, from various persons, that Campbell was in possession of rights and credits not embraced in his schedule, which he is trying to collect, and that he had collected money from several persons and had not accounted for it. He further alleges, that Campbell did not appear at the meeting of his creditors, and did not deposit his commercial books. He concludes, by praying that the proceedings may be set aside, and the insolvent be denied the benefit of the act.
A jury was impannelled to try the case thus presented, who found that the facts alleged in opposition were true but that they did not believe Campbell intended to be guilty of fraud. Upon this verdict, the court rendered a judgment sustaining the opposition, and decreeing that the prayer of Campbell, to be admitted to the benefit of the act in relation to insolvent debtors, be rejected and dismissed. The insolvent appealed.
This proceeding appears to have taken place in pursuance of the 18th section, of the act of 1817, relative to the voluntary surrender of property. The consequences of a conviction of fraud under that act, are highly penal, not only depriving the insolvent of the benefit of all laws in favor of insolvent debtors, but rendering him incapable of holding any office of honor or profit under the state. 2 Moreau’s Digest, 130. The provisions of the act must, therefore, be strictly complied with, and the acts complained of be such as the law declares to be fraudulent, and done with a fraudulent intent. The verdict in this case negatives the fraudulent intention, although it finds the facts alleged to be true. We are of opinion, that the verdict was substantially one of acquittal, and did not, authorize the judgment pronounced thereupon by the District Court. The verdict does not appear to us to be a special one, as was contended in argument. It is essential to a special verdict, that it finds the facts, but leaves the legal conclusion, to be drawn from such facts, to the court. In the present case, the jury drew that conclusion for themselves in favor of the defendant. The acts complained of are not necessarily fraudulent. The insolvent may, very innocently, have confessed judgment in favor of a particular creditor before his surrender. Rights and credits may have been omitted on the schedule through inadvertency, and if he proceeded to collect money by himself, or his attorney after the surrender, it is the duty of the syndic to recover it from them, for the use of all the creditors. Many of these grounds will remain open for opposition in the further progress of the proceedings, and we are to presume the syndic will do his duty
