Cassidy v. His Creditors

18 La. 402 | La. | 1841

Martin, J.

delivered the opinion of the court.

Moffatt, provisional syndic of the insolvent, is appellant from a judgment ordering him to render an account of his administration as provisional syndic; and also to deliver into the possession of P. Riviere, syndic, the slave and other property, real and personal, which he has or may have-in his keeping, belonging to the estate of James Cassidy, the insolvent. He is also appellant from a judgment overruling.his opposition to the appointment of Riviere as syndic.

If Riviere was duly appointed syndic, the order to the provisional syndic to account and deliver up the property, &c. was the necessary consequence of his appointment. We have therefore only to inquire whether the opposition was properly overruled.

The appellee’s counsel has contended, that the opposition was properly overruled, because it was not accompanied with a sufficient affidavit. The opposition was made under the 18th section of the act of 1S17, relating to voluntary surrenders; 2 Moreau’s Digest, 429, in which there is an evident discrepancy between the English and French texts; the former requiring the opponent to lay before the court his written deposition stating specially the several facts of nullity, &c. to the appoint* ment; while the latter states, “remettre a la cour, saisie de la faillite son opposition par écrit, établissant specialemeilt les divers faits de nullité.” In comparing the different sections of this act, especially the 26th and subsequent ones, with the one under consideration, we come to the conclusion that the discre-* pancy evidently proceeds from a mistranslation of the French text, which appears to us to have been the original one ; a lap* sus calami, or a misprint.

The word “deposition” in the 18th section of the act of 1817, relating to voluntary surrenders of property, is a mistranslation or misprint from the French text; and it evidently means “opposition.” Where the person acting as executor is not denied, there is no necessity of producing- the evidence of ca1' pacify.

On this branch of the case, the opposition ought to have been sustained, on the grounds on which it rested or was based.

1.The opponent denied that Riviere received the legal number of votes either in number or amount, to constitute him syndic.

2.He alleged that the vote of Mrs. Bancker was im* properly received, as it was not shown that shé was testamen* tary executor of her husband, and could give no authority to her attorney to give the vote.

3.That the oath of the attorney in fact does not state that it is from his personal knowledge that he knows of the existence of the debt; and his oath ought not to have been received, because his constitufent was in the city, and could not vote by proxy.

4.That the insolvent placed his landlord Bancker on his schedule, for the whole amount of a lease which had not ex* pired; and consequently for a larger sum than was due to him, at ^ time °f voting for syndic, there was no rent due to ¿he estate of Bancker, and that this vote should not have been given, by which alone Riviere was elected,

§>roun(^ °f objection is not supported by any evidence,

An attorney in fact need not state, that he knows the existence of a debt sworn to by him, from, liis personal knowledge, when he is not questioned as to the manner in which he derives his knowledge. An attorney may represent his constituent at a meeting1 of creditors, even when she is-present in the city where the meeting is Held.

II.In relation to the second ground, Mrs. Bancker’s capacity as executrix not being denied at the meeting of creditors, there was no necessity of the production of her letters testamentary to authorize her attorney to vote for syndic.

III. The attorney in fact of Mrs. Bancker, not having been questioned as to his personal knowledge of the existence of the debt, sworn to by him, he had no need to state it. An attorney in fact njay represent his constituent at a meeting of creditors, although the latter be present in the city, if she finds it inconvenient to attend at the notary’s office.

IV. None of the grounds of opposition are established by evidence, so that this one, with the rest, must fall.

The Judge a quo, correctly overruled the opposition to the appointment of Riviere as syndic.

It is therefore ordered, adjudged and decreed, that the'judgment of the District Court be affirmed with costs.