16 La. 140 | La. | 1840
delivered the opinion of (he court.
The plaintiffs sue on a note of the defendants, Bemiss, Brashear & Co., given for the price of a carriage, and claim a privilege on the carriage as vendors. For this purpose, they brought in the defendant Harman, who had purchased the carriage from Bemiss, his co-defendant, and they claim a rescission of the sale, as having been made in fraud of their rights, as creditors of Bemiss, Brashear & Co., who they allege were insolvent at the time of the sale, to the knowledge of Hannan.
The plaintiffs had judgment on the note.
Dwight & Hartman now intervened, slating themselves to be creditors of Bemiss, Brashear & Co., and also claiming the rescission of the sale of the carriage, on the same ground as the plaintiffs, whose privilege they oppose. They claim the carriage or its price, to the exclusion of other creditors, on the ground that they had judgments against Bemiss, Brashear & Co.
There was final judgment recognizing the privilege of the plaintiffs, rescinding the sale of the carriage by their vendees, and dismissing the petition of intervention. The intervenors appealed.
Their counsel has urged that the privilege ought not to have been allowed. They show that the plaintiffs gave a receipt for the note, at the foot of the account, inpayment of it.
The plaintiffs’ counsel has replied, that the giving of a note for a debt, on an open account, is nopayment of the debt. This is certainly true, but nothing prevents the debtor and creditor agreeing that the note shall he a payment. In this case the note was expressly receipted for, and taken in payment. We have held, that the receipt of a note, for the amount of an account, is neither payment or novation, but that the receipt of a note of a third person inpayment of an account discharges it. We are now called upon to say whether there is a difference between receiving the note of the debtor inpayment, and the receipt of the note of another. It does not appear to us there is any difference. The creditor has an interest in taking a note. It liquidates his debt, facilitates his proof, and enables him to raise money by discount. It was for the creditor to consider whether these advantages were an equivalent for the release of the privilege. The debtor places himself, by giving a note, in duriori casu ; punctuality is more rigorously required and exacted of him. The dread of a protest compels him to exert every nerve to maintain his credit. If he has, or afterwards acquires, a claim against the creditor, he foregoes the right of offering compensation. On this consideration we conclude the privilege was improperly allowed. The words of the plaintiff
The intervenors and appellants claim a preference over the plaintiffs, on the ground that they are judgment creditors, and that they instituted their revocatory action before that of the plaintiffs. Their suit was instituted in the month of February, 1835, and that of the plaintiffs, the 10th of April following. Both suits were brought to the same term of the District Court, and judgments signed on the same day, at a subsequent term. We know of no privilege resulting from a judgment on moveable property, unless execution has issued thereon. In the revocatory action, the Louisiana Code, article 1973, provides that, “the judgment in this action, if maintained, shall be that the contract be avoided as to its effec(s on the complaining creditor, and all the property or ra0ney taken from the original debtor’s estate, by virtue thereof, or the value of such property, to the amount of the debt, he applied to the payment of the plaintiffs.” We think the fair and equitable meaning of the article is, that when creditors-commence the prosecution of their rights about the same time, and use proper diligence afterwards, that one sh°uM not have an exclusive privilege on the property, simply because his suit was first commenced. It would be an . . . unjust interpretation to give the law, in many cases. I he case might be different, if it was apparent that one of the creditors had slept upon his rights, and neglected to assert them with reasonable diligence.
It is, therefore ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed, so far as it decrees that the plaintiffs, M. Walton & Son, have a privilege, as vendors, on the carriage which was sold to Judson Harman; also, so far as it decrees that said carriage shall be given up, or the value thereof, to wit, four hundred and seventy dollars be paid exclusively for the benefit of plaintiffs, and, also, in decreeing the dismissal of Dwight & Hartman’s intervention : And proceeding to give such judgment
