Ayles v. Hawley

J. (Slidell, C. J., and Vooehies, J., absent.) The court granted a rehearing in this case, and having considered the points made by the appellees counsel on the re-argument of the cause, are of opinion that the judgment first rendered should remain undisturbed for the following reasons: 1st. It is true as contended by the appellees counsel, that the cessio honorum vested the title of the insolvent in his creditors for the purposes of the cession, as to all property and assets which previously belonged to him, whether specified or not in his schedule; but the plaintiff in injunction, has not shown any legal sale by the syndic of this particular asset, which it appears still belongs to the creditors. The parol evidence of an auctioneer or cryer, is not admissible, where objection is made to establish a title derived ‘by a syndic’s sale made in the course of judicial proceedings. There must be some written evidence to support such a title, and the plaintiff neither alleged nor proved the existence and loss or destruction of such written title and the parol testimony of Phillips having been objected to, was improperly reeeived. It is therefore ordered, that the judgment already rendered remain undisturbed as the judgmont of the court.