Lyons v. McRae

Merrick, C. <L, dissenting'. Sundry judgment creditors of R. W. McRae, caused to be seized under execution fifty-five hogshsheads of sugar of the crop of 1857. The seizure and sale of the sugar appear to have been both made prior to the surrender of R. W. McRae. Claycomb, one month previous to the surrender, filed an opposition wherein he claimed a privilege upon the sugar for barrels and hogsheads furnished to take off the same. The creditors excepted to the opposition, alleging that it disclosed no cause of action. The syndic opposed the trial of the opposition and claimed the money in the Sheriff’s hands as belonging to the assets surrendered. The District Judge considered the opposition and rendered judgment in favor of the opponent, Claycomb, and the other parties appealed. By the sale of the property, to-wit: the sugar, previous to the surrender, McRae’s title to it had been divested. The money made by the sale was no longer under the control of McRae, but the judgment creditors had the right to demand the same from the Sheriff, saving the right of the privilege creditors who had set up their claim previous to the sale. The syndic had no greater right to the proceeds than McRae himself had, and the proceeds could not be carried into the surrender and become subject to the commissions of the syndic, and the costs and charges of the surrender as well as those of the Sheriff in making the sale. The surrender is but a mode of execution, and the creditor who has completed the one process and made his debt, cannot be compelled to resort to the other. See the case of the succession of J. Walker, 14 An. Campbell v. Slidell, 5 An. 274. The authorities cited in support of the opposite doctrine do not appear to me applicable. In none of those cases had the money been made on execution prior to the surrender as in the present case. Those cases appear to me to be correctly decided, and in no manner conflicting with the recent decision of this court in the case of the succession of T. Walker. Op. Book 30, p. 253. In the case of Canez v. Schooner James McKinley, the sale was made under an order of court, and the property being held in common, the only question was *441 whether the syndics of one of the joint owners of the ship could take into their possession the whole proceeds when one-half belonged to another, and it was held they could not, and they were ordered to pay said one-half into the hands of the Sheriff. 2 N. S. 310, 311. I can see no reason why a creditor who by his diligence has made his debt upon execution should be deprived of his funds by the surrender. The day that the money has been made by the creditor, on execution, he is entitled to be paid by the Sheriff. This is a right which tho law gives him. If he has this right to immediate payment the day the money is made, it is difficult to see in what manner he forfeits the right by any reasonable delay. The right must exist, and the accident of a subsequent surrender cannot deprive the creditor of such right. The testimony in this case was received without objection, and I think‘the judgment ought to be affirmed. Land, J., concurred in this opinion.