February, 1833. MAYOR ETC. OF NEW-ORLEANS vs. RIPLEY ET ALS. them is to pay eight thousand five hundred dollars? We think EASTERN DIS. not; because from the terms of the obligation, it is to be performed not by one of the obligors, but by all of them. Until the matter was stirred in this case, we thought it was of universal understanding, that an obligation expressed in the terms just given, created a joint, not a joint and several obligation. But we are told that no case can be found where such a decision was given. If none such could be found, the cause might be sought for in the fact, that the effect of such a contract was, perhaps, rarely questioned before. Chitty tells us, "that when a promissory note is made by several, and expressed, we promise to pay, it is a joint note only; but if signed by several persons, and begins I promise to pay, it is joint and several. Chitty on Bills, ed. 1819,351. A cause was decided in Pennsylvania, on a bond in these words: "We do bind ourselves, our heirs, executors, administrators, and every of them," &c. It was held a joint, not a joint and several obligation. Wharton's Digest, p. 90. And there are a great many cases in the books, which clearly proceed on the idea, that such words create a joint obligation, because they turn on the effect of other words being added to them, which make the engagement one in solido. A number of them are collected in Bac. Abridgment, vol. 5, 164 to 166. But be the authorities in that system of jurisprudence what they may, we are of opinion that under the provisions of our Code, the words "we promise to pay, do not express an obligation that each one of the parties signing shall pay the sum which is promised by all. ven as collateral of a third person, does not subject the makers to the laws of sureties. We do not think there is any weight in the objection, that an obligation githe obligation, in this instance, having been given to secure security for a debt the payment of a debt due by others, it must be subject to the law which governs sureties. The proof adduced, shows, that the parties signing it were not bound for the principal debt. The engagement was independent of it, and received as collateral security. It was contended, that the defect of not joining all the co-debtors in the suit, should have been pleaded by way of February, 1833. EASTERN DIS. exception, and that it was the duty of the defendants at the same time to show that those who were not sued were amenable to the jurisdiction of the court. BRUNET vs. DUVERGIS, SYNDIC, ETC. Admitting the regular practice to be, that this matter should be pleaded in limine litis, we do not see how the plaintiffs could be benefited by the recognition of the rule. All the obligors were made parties, in the first instance, to the suit. It is sufficient for The plaintiffs, after issue joined, discontinued as to some, and gation, to show, by doing so left the defendants no remedy but to take advan the sued on an obli that all the co obligors are not tage of it at the trial. As the general rule is that all must made co-defen dants, and and the be sued, and the exception, if it be one, is that the co-debtors plaintiff must establish the facts cannot be brought before the court, we think it is sufficient which make the case an exception. for the defendants to show that all are not made parties, and that it is the duty of the plaintiffs to establish the facts which makes their case an exception. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. BRUNET vs. DUVERGIS, SYNDIC, &c. APPEAL FROM THE COURT OF THE FIRST DISTRICT. If a sale of property by an insolvent be fraudulent, his syndic cannot treat it as a nullity, but should bring an action to have the contract annulled. Creditors, at the time of the sale only, can dispute its validity. This suit was brought by a minor, assisted by her natural tutor, to recover two slaves. The defendant was the syndic of the plaintiff's natural tutor, who had become insolvent in his own capacity, and as a member of a commercial firm. The February, 1833. BRUNET tutor, in making his surrender, had placed the slaves in ques- EASTERN Dis. tion upon his schedule as part of his estate. By public act, annexed to the petition, it appeared that the slaves were purchased by the plaintiff, in her own name, assisted by her natural tutor. The syndic alleged that the slaves were purchased with the funds of the firm, or of the natural tutor, when in insolvent circumstances. The plaintiff had judgment, and the defendant appealed, with respect to one of the slaves. Potts, for appellant, contended: 1. That this was a purchase of real estate with the partnership funds, and could not be alienated by one partner without the consent of the other, to his injury. Richardson vs. Packwood, 1 N. S. 290. Simmons vs. Parker, 4 N. S. 200. 2. That whilst the partnership is proceeding, and their affairs unliquidated, one partner cannot by donation inter vivos to the fraud of other creditors, give away the effects of the concern. 3. And therefore, Anathalie Brunet is a mere stake holder, a cestui que trust for the benefit of the partnership, and the creditors of it. Lockett, for appellee. 1. The plaintiff contends, that the syndic had no right to take possession of the slaves in question, as they did. They should have instituted suit to set aside or avoid plaintiff's title first. See the case of Henry vs. Hyde, 5 N. S. 2. The insolvent, at the time the slaves were purchased, was solvent, and had from eight thousand to ten thousand dollars, over and above his debts. Defendants could not then have been injured by the act, even admitting it to be a donation. There is no evidence which shows that the defendants were creditors at the time the sales in question were passed; therefore, under the 1988th article of the Louisiana Code, the defendants cannot succeed in their demand. DUVERGIS, SYNDIC, ETO EASTERN DIS. 3. There is no evidence which tends to show the least February, 1833. unfairness in the transaction, and not a shadow of fraud is pretended, as the case stands upon the evidence of the defendants themselves. BRUNET vs. DUVERGIS, SYNDIC, ETC. PORTER J. delivered the opinion of the court.* The petitioner is a minor, and appears in court by her natural tutor. She sues to obtain possession of two slaves, which the defendant, as syndic of Brunet & Ashton, had taken into his possession. The defence is, that the father, who appears in court as tutor to the child, surrendered the property sued for, as the property of Brunet & Ashton; that payment was made for it out of the funds of the firm, when they were in insolvent circumstances; and that the purchase was made to defraud the creditors of Brunet & Ashton. The bills of sale for the slaves, were executed in the name If a sale of pro- of the petitioner. If the transaction was fraudulent, the lent, his syndic representative of the creditors cannot treat it as a nullity, perty by an insol vent be fraudu cannottreat it as a nullity, but should and take the property into his possession. He should bring bring an action to have the contract an action to have the contracts annulled. 5 N. S. 634. annulled. Creditors, at the Again, no right of action is shown on behalf of the credi time of the sale tors, even if this was a case in which it could be properly only, can dispute its validity. inquired into. It is not proved that any of the creditors were such at the time the acquisition was made. There was judgment in the court below in favor of the plaintiff. The defendant has appealed only in relation to one of the slaves; thus admitting the correctness of the decree as to the other; for the reason just given, we think it should be affirmed as to both. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. *Mathews, J. was absent when this opinion was delivered POYDRAS vs. PATIN ET AL. APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE THEREOF PRESIDING. EASTERN DIS. POYDRAS PATIN ET AL. 5L 127 45 1428 5L 127 51 1059 127 Where the appeal bond is given for the sum ordered by the judge, the appeal is devolutive, although the sum does not exceed by one half the amount of the judgment. It is not absolutely necessary that the appeal bond should be signed by the appellant in propria persona, or by any person for him not legally authorised. A fact is considered established, if proved by evidence which is not the best the nature of the case admits of, but which is received without exception. The plaintiff seeks to recover the amount due upon three promissory notes; of one of which he is the payee; of another, the universal heir of the payee; and of the third, the assignee of the payee. The notes had been given by Gertrude Patin, and her husband, Pierre Abadie. The defendants pleaded the general denial. Judgment was rendered against them. The amount of the judgment was two thousand eight hundred and seventy dollars and forty-one cents. The amount of the appeal bond was three thousand dollars. The bond stated, that "we, Gertrude Patin, widow Berciron, wife of Pierre Abadie, duly authorised by her said husband, as principals; and Hypolite Patin and James Mitchell, as securities," &c. It was signed "Gertrude Patin, by her husband, Pierre Abadie, Pierre Abadie, Hypolite Patin, James Mitchell." Denis, for appellant. 1. This cause is the same that was tried before this honorable court in......................................No.......of the docket of this honorable court. And plaintiff could not be admitted to maintain a second suit on the same cause of action; the first having 5 120 100 |