The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-05-24
Supreme Court Of Louisiana.


There particular form required in giving notice of the
transfer of debt Where mistake is made in the
tce of transfer in relation to the amount of debt bear
ing mortgage by the notary who served the notice, but
reference is made therein 10 the Act by which the debtor
granted the mortgage, specifying the notary before
whom it passed the date and the of the par
ties such notice will be held valid if the mistake not
calculated to misead the debtor to create any doubt
in his mind to the party to whom thencefoh he
to hold himself liable. Where party has become in
solvent and made cessiO bonorum under the Act of
Feb o. 1877. the filing of petition by his credi-
tors, who Joined in the c0nc0ars0 for the purpose of
provoking a new surrender the ground that he has
since then to better fortune does create inca
pacity the former nsolven to ALLEVIATE, and the newly
acquired property cannot be thenceoh considered to be
eustodiG egis. Until Judicial investigation is had
and decree is pronounced, the liability of the dis
charged nsovent is matter in pals. Where party.
who had previously taken the benefit of the insOlvent
laws, subsequently Acquires mortgage claim, which he
transfers to bona fde purchaser who notifies the debtor
of the transfer attachments and sequesations by the
old creditors of the insovent in the hands Of the debtor,
made after the service Of notice b. the purchaser the
debtor cannot reOact to defeat the right of such
purchaser. An attorney at law who files petition
behalf of certain parties for the benefit of the insoyent
laws and signs his their attorney, will be pre-.
sumed to have acted by their authorization, unless the
contrary be proved
A. Appeal from the Fifth District Court Of New
Orleans. :. No. 1345. .SLIDELL, j.. In 1874
Preston gave a mortgage in favor of G. w. Boyd
$1,000. This debt was reduced by payments TO
$500, and in August, 1877, Boyd transferred the
debt and mortgage to Pympton. Preston having
refused to pay the accruing interest, Plympton
brought suit against him in The District Court OF
Jefferson. Defendant answered that Boyd had
made Cessio bonorWn in 1920; but, having sub
sequenty come to better fortune, his creditors had
instituted proceedings against him to compel new
surrender, had obtained an order appointing the
Sheriff syndic and had cited Boyd by service upon
his agent, Florance, in March, lS47 !; that in l848
the creditors had procured in the District Court of
New Orleans, an order to sequester all Boyd's
property, under which, notice of seizure had been
served upon Preston that other creditors of Boyd
had seized the debt in Preston's hands under at
tachment; that the transfer to PlymptOn was
without legal consideration and simulated and
was made for the purpose of defeating BOyd's
creditors.
Plympton, upon being met by this defence,
brought second suit in the Parish of Orleans, in
which the syndic. the suing creditors and Preston
were made parties. He alleged the validity of
Boyd's transfer and the invalidiiy of the preten-
giving bond, an injunction against defendants,
which he prayed might, after due proceedings, be
made perpetual.
The Court first directed lis attention to the trans
fer made by Boyd to Plympton, the reality and
good faith of which have been attacked. After
the Court concluded by declaring they had not
found any thing which would authorize the belief
that it was simulated or cast suspicion upon the
good faith of PIympton. He was therefore re-
garded a purchaser in good faith and for a val
liable consideration.
1t was agreed that Florance's knowledge of the
institution of suit to compel new surrender,
which knowledge he derived from the service of
citation upon him the attorney in fact of Boyd,
must he deemed by legal construction the know
ledge of PlymptOn, who, upon closing his bargain
with Boyd, constituted Florance his agent to take
charge of the mortgage claims for him when trans
ferred, and he superintendent the preparation and
execution, at New Orleans, of the notarial trans
fer The Court was of opinion that the knowledge
of Floranee did not affect Plympton with construc-
tive notice. The notice did not come to FlOrance
while he was concerned for Plympton, but before
sec. 40; Story's Equity, sec. 4OS; Lvermore on
Agency, vol. 2, p 237 Russell on Factors, IS.
For the purpose of giving validity to this transfer
against third persons, it was necessary that notice
of the transfer should be given. This, the Court
thought, had been sufficiently done. The notice to
Preston by the notary, the 9th October, lS47 is
in the following words:
NEW ORLEANS. Path Aug, 47:-Sr: am requested
to inform you that BY passed before the 18th
". Boyd sold and transferred unto Ralph Pympton Of
Boston Mass The balance Ct mogase executed BY you
li the ash june is4 for $500 Your OFT sefS
ITO IT. Preston. Esq. D. l. RICARDO Not.Pub."
Admitting the sum stated (S25OO) to be discre-
pancy, as the mortgage as reduced was $500, the
Court held that the mistake not of such i'm
portance as to affect the validity of the notice.
The code (26l3) has not prescribed any particular
form of the notice. The following authorities were
also quoted: Thomas Us. Callihan, ~ S. 1872 ;
Gillett Us. Lands, II L. R. 472; Story on Notes,
sec. 349; Mills Us. Bank of the United States, ii
Wheaton 43l and the Court held that applying
L l. Al 4.
impossible to say that the defendant was mised,
or could have had any doubt to the party to
whom he to hold himself liable. demand of
payment by Boyd, after the notice, would ungues
tIonably have been met by REFUSAL
As the attachments and sequestration were all
posteror to this notice, they could not, in them
selves retroact so to defeat the right Of bona
fde purchaser So that the Court was thus brought
to the main question in the case, and that was,
whether the institution of the suit prior to the trans
fer for the purpose of compelling Boyd to make
new surrender, created a legal incapacity on his
part from that date, to ALLEVIATE his property In favor
of bona Gde purchaser
Plaintiff strenuousy urged that G. w. Boyd was
not party to the insolvent proceedings in 1920.
The title of the suit was VIM. Boyd and Son ps.
Their Creditors" 1t was in evidence that G. w.
Boyd was the son of WIN. Boyd The petition in
that case describes VIM. and G. w. Boyd as the
petitioners, and is signed by member of the bar
TONERS. The Court said that, in the absence of
proof that the attorney at law was not authorized
to appear, the Court would concede that G. w.
Boyd was party to the insovent proceedings, and
by reason thereof, became discharged from his
partnership liabilities, subject to the legal condition
of future liability in the event of his coming to
better fortune. The Court then quotes from the act
of 1877, which was the law in force when the dis
charge was granted, the passages relating to the
debtors discharge, and the nature of his liability on
coming to better fortune.
Waiving the consideration of the question
whether Florance, who discaimed the right to rep
resent Boyd, was competent under his power OF
attorney 10 be the medium of the citation of his
absent principal in suit of this extraordinary
character the Court proceeded to consider the ef-
feet of the suit as though Boyd himself had been
personally cited in March, lS47.
Per curiam: 'tThe law of 1917 was certainly
conceived as much in spirit of mercy to the debtor
as of Justice towards his creditors. The policy of
the law must undoubtedly be respected in the one
sense as in the other and it seems to us that the
doctrine contended for by the defendants, that by
the mere filing of the petition an incapacity to
ALLEVIATE at once attaches, and the newly acquired
property of the insolvent is deemed to be thence
forth custodd legis is repugnant to the spirit of
the art and IN general nrincDtes Until iudcial