Gottschalk v. Her Creditors

Mathews, J., delivered the opinion of the court. The only question presented by this case, appears somewhat novel. It is, whether a woman, not a public trader or merchant, has a right to claim the benefit of our insolvent laws, which authorise a cession of property, for the [438] benefit of creditors, by a debtor who may find himself in emkaiTassing. circumstances ? This question was decided in the affirmative, by the court below, from which the opposing creditors took the present appeal. The legislative acts of the state, which are the only laws in force, since 1828, on the subject now under consideration, make no distinction, as to the right of debtors to surrender their property, on the score of sex. But it is contended, on the part of the appellants, that in consequence of the humane and gallant disposition of our laws, which exempt women from imprisonment, on account of contracts, they are not entitled to the benefits secured to honest and unfortunate debtors, by a cessio bonorwn. Such interpretation, would certainly exhibit palpable discordance with that benevolent feeling, which dictated the rule, exempting women from personal arrest and imprisonment, on account of civil obligations, and unless the law be express and imperative in denying this right, it ought not to be so construed as to produce such an incongruous effect. The reasoning in favor of the negative proposition, that women have no right, under our laws,-to make a surrender of their property, for the benefit of their creditors, as used by the advocate in the present instance, .is somewhat syllogistic in form. The insolvent laws, as shown by the 1st section of the act of the 20th March, 1817, and by the provisions of the act of 1826, on the same subject, were passed for the purpose of enabling debtors to avoid imprisonment, by surrendering their property, &c. A woman cannot be imprisoned, on account of her debts; therefore a woman has no right to make a surrender. This mode of reasoning certainly receives aid from the maxim cessante ratione cessat el ipsa lex; and were it shown, that this is the sole benefit and relief intended by these laws, the reasoning would be very forcible, if -not conclusive. But, - on reading the section of the act referred to, the cession of goods has the effect, not only to prevent imprisonment, it also releases the debtor from all proceedings against his [439] person. This latter clause, if it have any meaning different from the exemption from imprisonment, must mean a release from all personal actions; so that a person, who does all things in his power to pay his creditors, by a fair surrender of property, may not be harrassed by a multiplicity of suits. This in truth, under circumstances of impossibility to make payment of all his debts, by a debtor, is the only means of giving effect to that provision of our code, which declares the property of a debtor to be a common pledge to all his creditors. The effects of a surrender of property, in practice, has always been, to stop all judicial proceedings against the ceding debtor, except such as are carried on in the concurso. Amarried woman, separated in property from her husband,and who is not even a public trader or merchant, has the right to claim the benefit of the insolvent laws, which authorise a cession of property, for the benefit of creditors, by a debtor* in embarrassed and insolvent circumstances. We are unable to perceive any cogency in the reasoning, based on the impossibility of punishing a woman, ceding her property as a debtor, by imprisonment, on account of fraud in the surrender. The same difficulty would exist, in making her act honestly, in pursuits by creditors separately, when she refused to make a cession of her property. Indeed, a willingness shown, to give all up for the benefit of the mass of creditors, is at least prima facia evidence of honesty and fair dealing. The law does not positively and expressly inhibit women from surrendering their property to creditors, neither can such inhibition be made out, by just reasoning from the context of the law. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs, to be paid by the appellant.