9 La. 22 | La. | 1835
delivered the opinion of the court.
This is a case of insolvency. The insolvent debtors seek the reversal of a judgment of the Parish Court, which rejects' their claim for a reduction of the sum for which a bond was •required of them on their application to be discharged from' imprisonment, under an order of ■ arrest which issued on an affidavit made by one of the creditors, suggesting fraud, according to the provisions in the ninth section of the act of 1817. 2 Moreau's Digest, 426.
The parish judge required bail to the full amount of all the debts, according to the schedule, after deducting the value of -the property surrendered.
The counsel for the insolvents, in the argument of the case, advanced the following positions and grounds:
1. The sum due to the creditor who provoked the arrest, ought alone to have been considered in fixing tbe amount of the security to be given.
2. The affidavit of the creditor obtaining the order of arrest, cannot be of any avail to any of the others.
3. This creditor cannot be considered as‘acting, for the benefit of the mass of creditors.
4. The proceedings before the notary have been homolo-gated as to the creditors who did not suggest fraud.
On the affidavit of a creditor, an order is to issue for the arrest of the insolvent, and the sequestration of any property he may have failed to surrender. This act is for the benefit of all the creditors, and not for that of the applicant alone: otherwise the sequestration should not be made of property, exceeding in value the amount of the debt. The sequestration when once made, is irrevocable, unless on payment of the debts of all the creditors; for all of them are interested therein.
The person of the insolvent may, indeed, be discharged from imprisonment on giving security; but as his arrest was ordered for the benefit of all the creditors; and the penalty of the bond should be large enough to secure the performance of the condition, which is to indemnify the party interested, in case of its breach. The parish judge was, therefore, correct in taking into consideration all the debts of the insolvents ; and the affidavit on which the order of arrest was granted, inured to the benefit of all the creditors.
As after a cessio bonorum, the property of the debtor is protected from the attacks of any individual creditor on his own account, it follows that all the measures he may regularly resort to, in order to secure any part of the property, must be available and benefit the mass of the creditors.
So under the 11th section of the insolvent law of 1817, already referred to, the conviction of fraud upon the-accusation of one creditor, has the effect to deny and preclude the insolvent debtor from the benefit of the insolvent laws of this state ; and as the condition of the bond is, that the insolvent shall remain within the jurisdiction of the court, until the definitive judgment of homologation of the proceedings had, under the surrender of his property, the judge, in fixing the amount of his security, properly disregarded any partial homologation..
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs in both courts.
