Millaudon v. Foucher

Bullard, J., delivered the opinion of the court. The view we have taken of the merits of the case, renders it unnecessary to examine the questions argued at the bar, touching the jurisdiction of the court under the plea of domicil. None of the notes sued on vyere due according to their tenor at the inception of this suit, and the plaintiff in his affidavit swears only to the existence of the debt, and that the defendant has left the state never again to return. The act of 1826, amendatory of the Code of Practice, requires in cases where the debt is not yet due, the further averment under oath, that the defendant is about to remove his property out of the state, before said debt shall become due. Act of 1826, section 7. Code of Pr This seems to us a fatal objection, unless the debt by operation of law and the act of the defendant had become due, at the time the attachment was levied. In the petition filed the day after the writ of attachment issued, the plaintiff alleges that the defendant had become insolvent and had absconded, and that by reason of such insolvency and absconding, all his debts became due and exigible. This leads to the inquiry, under what circumstances and for what causes, does a debtor lose the benefit of the term stipulated for the payment of his debt 1 Article 2049 of the Louisiana Code declares, that “where-ever there is a cession of property either voluntary or forced, all debts due by the insolvent shall be deemed to be due, although contracted to be paid at a time not yet arrived; but, in such case, a discount must be made of the interest at the highest conventional rate if none has been agreed on by the contract.” The provisions Code, article not9’merelyUan actual, but dedared insolvency or inability eW?eJadvoiuntary or forced surrender of his property, for the :?=oS fore the debtor loses the benefit of his term, d¡u!,htaken^and dule”med t0 te This article of the code requires not merely an actual insolvency or inability to pay debts, but a surrender of property either voluntary or forced, for the common benefit of creditors. The general rule is, that what is due by contract at a particular time, cannot be demanded before the expiration of the intermediate time; and the article above recite<l creates exceptions, to wit: in cases where an insolvent debtor has made a surrender either voluntary or „ , T • , . .......... torced. u is not enough, in our opinion, that the debtor be ^solvent circumstances, and although in relation to certain classes of persons, their absconding may authorise a forced . 1 M , surrender; yet, until such proceedings be had, there is no foi'ced surrender within the meaning of the code. Attachment laws must be strictly construed, and no , , essential formality can be dispensed with. The plaintiff places, himself in this case in a dilemma. If his debt was not ^ue> not Pursue the formalities required by law to entitle him to an attachment. If it was due by operation of law, then the law requires a concurso among all the creditors and an administration of the property for their common benefit, and does not authorise a creditor whose debt is not in fact due, to gain an advantage over other creditors whose debts are actually due, by seizing on sufficient property under his attachment to pay the whole of his demand, without submitting to the defalcation contemplated by the article of the code above mentioned. In cases of surrender the creditor cannot proceed separately. It is true the old Code contained a much broader rule on this subject and provided, that “the debtor can no longer claim the benefit of the term after he has failed, or after he has by his own act diminished the securities given by the contract to his debtor.” Old Civil Code, page 276, article 88. This article appears to have been omitted in the amended code, and the one first above recited substituted for it. The provision in the old Code is copied literally from article 1188 of the Code Napoleon. Under these dispositions it has been ruled by the Court of Cassation, that the sale by the debtor [587] of a part of the premises mortgaged for the security of the • debt by the contract, operated a forfeiture of the term and the whole debt becomes due and demandable, although the creditor may have received the whole price of the part sold in the proceedings instituted by the purchaser to purge the mortgages. 10 Sirey, 139. The act of absconding, under that provision, may perhaps have operated a forfeiture of the stipulated term by diminishing the security of the creditor. But it appears to us, that the latter clause of the article of the old Code referred to, has been repealed by the Louisiana Code, Tbe two provisions cannot exist together, and courts of justice are not authorised to create new exceptions not recognised by law. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled and reversed, the attachment dissolved, and that there be judgment against the plaintiff as in case of a non-suit, with costs in both courts.