Tufts & Hobart v. Casey

Same Case — Ox a Re-hearing. Buchanan, J. This was a proceeding by sequestration of the property of an absconding merchant or trader, by three of his creditors, under the Act of 1826 ; which Act was held by us, in the ease of Levois v. Gerke, not to have been repealed by the Act of 1855, relative to the voluntary or forced surrender of property. The appellant, M. Abrams, had instituted a suit by attachment against Casey, previous to the sequestration issued in this suit, and had seized under said attachment, on the 22d of April, 1858, the household effects and furniture of said Casey, then in his residence on Canal street, in the city of New Orleans. The pro *260 porty thus seized was still under seizure when the sequestration was issued in this case. It was taken possession of, together with other property sequestered, by Henry Renshaw, appointed syndic at a meeting of Casey’s creditors, and was sold by him for the sum of $3,251 85, as appears from his tableau of distribution filed in court. The appellant opposed the said tableau, claiming to be paid the proceeds of the property attached by him, by privilege. From a judgment, refusing such privilege, Abrams appeals. A preliminary question is raised in this court,, which was not made by the pleadings in the court below, to wit, that Thomas J. Casey was not a merchant or trader, within the terms and meaning of the statute of 1826. The argument of the counsel of appellant on this point is, that it was not necessary for him to object to the proceedings on this ground; but that it should have been shown affirmatively by the sequestering creditors, that their debtor, Casey, was a merchant or trader. We are of opinion, that it was for the appellant, or any other party interested, to make the specific objection, and thus to have given the plaintiffs in the sequestration, or the syndic appointed by“ the creditors, an opportunity to prove that Casey was in fact a merchant or trader, as they have sworn, in suing out the writ of sequestration. The question not having been raised in the court below, it might operate as a surprise upon the appellees, to allow it to be raised for the first time here, as no evidence can be offered in this court on the subject. We proceed, therefore, to examine the merits of the controversy, on the assumption that the proceedings of appellees have been regular under the statute of 182G. The case of Levois v. Gerke, 12 An. 828, is not to be understood as having assimilated the proceeding by sequestration under the sixth section of the Act of 29th of March, 1826, to a surrender, either voluntary or forced. That case was the subject of two decisions, as the report shows. In the first decision, it was held by the majority of the court, that the proceeding by sequestration of the property of an absconding debtor under the Act of 1826, came within the term of “ a forced surrender of property,” and that inasmuch as it had not been reenacted and incorporated in the Act of 14th of March, 1855, “ relative to forced surrenders and the mode of making the same,” it had been swept away by the repealing clause of the latter Act. But two Judges, composing a minority of the court, were of the opinion that the proceeding in question was not in eifect either a forced or a voluntary surrender ; and of that opinion was a majority of the court, upon a re-hearing granted. The doctrine, as finally settled in Levois v. Gerke, is, that the proceeding by sequestration under the Act of 1826, is a peculiar remedy, which supplies an hiatus in our preexisting legislation, and distinct from the insolvent laws, although pursued in the ulterior stages of the remedy, in a manner resembling the settlement of insolvent estates under the statutes relating to voluntary and forced surrenders. We feel bound, therefore, to say, that the sequestration sued out by the plaintiffs and appellees, did not take away or impair the rights acquired by the appellant under his prior attachment. The appellant, by his attachment, acquired a privilege on the property seized, which entitles him to a privilege and preference over the other creditors of Thomas J. Casey. C. P. 722; 3 Rob. 106 and 276; 6 An. 444. *261 The attachment had not ripened into a judgment, at the time of the sequestration. But the appellant has made, contradictorily with the appellees, proof of his debt satisfactory to the court below and to this court. It is, therefore, adjudged and decreed, that the judgment heretofore rendered by this court herein, be set aside and avoided ; and it is now ordered, adjudged and de. creed, the the judgment of the District Court be amended as regards the appellant, Mordecai Abrams ; that the tableau of distribution filed by Henry Renshaw, syndic, be corrected, by placing thereon the said appellant as a creditor, for four thousand nine hundred dollars, with legal interest from 12th of April, 1858, until paid, and costs of said Abrams’ opposition in both courts, with first privilege and preference for three thousand two hundred and fifty-one dollars and eighty-five cents, proceeds of the property attached in the suit of said Abrams against Thomas J. Casey, and now in the hands of the syndic of Casey, appellee. Merrick, C. J., took no part in this decision.