8 Rob. 204 | La. | 1844
The petition alleges, that the defendant having failed in the Parish Court of New Orleans, on the 10th of May, 1823, and having filed his schedule accordingly, acknowledged
The defendant joined issue, first pleading the prescription of five, ten and twenty years; and further averring, that he has not more property than sufficient and indispensably necessary for his ' living.
The presiding judge of the City Court, being of opinion that the only judgment he could render, would be one commanding a new cession of property by the insolvent, to be followed by a distribution among his new and old creditors ; and conceiving that such a judgment would be beyond the jurisdiction of his court, nonsuited the plaintiff; from which judgment, after a vain attempt to obtain a new trial, the defendant has appealed.
We think the judge, a quo, did not err. By the 28th section of the law of 1817, (B. & C.’s Digest, p. 492,) it is provided, “ that the surrender of property shall only exonerate the debtor to the amount of the property surrendered, and, in case the said property should have been insufficient, if he acquires other in future, he shall be bound to abandon it until final fayment; provided that his new creditors shall be preferred to the former for their payment on the new property.” Article 2173 of the Civil Code provides, that a cession of property discharges all the debts on the debtor’s hilan, if a majority of his creditors agree to such discharge ; “ but if such consent be not obtained, any one of his creditors may afterwards force a new cession on showing that the debtor has acquired property over and above what is necessary for his maintenance.” It is perfectly clear from these laws, that the legislature never intended that an insolvent debtor should be exposed to be harrassed with suits, after a cessio bonorumy
We have been referred to the 5th sect, of a law of 1840, (B. & C.’s Digest, 473,) under the pretence that it authorizes the present action, as it is therein enacted, that no person can be forced to make a surrender, unless by two creditors, having each personally obtained a separate judgment for an amount exceeding $300; and that, therefore, the law of 1817, and the art. 2173 of
Judgment affirmed:.