delivered the opinion of the court.

In this case, the insolvent debtor presented his petition and hilan, or schedule, praying for a respite, and that his creditors *471be convened for that purpose. The respite was refused and the proceedings were, according to law, changed into a cessio bonorum. Syndics were appointed by the creditors, which was opposed by two creditors and the insolvent debtor himself.' The appellants contended that the respite was accorded to the' insolvent, and consequently the proceedings of the creditors, as in case of a cession, were irregularly and illegally carried on against him. The district judge decided against the pretensions of the opponents, and they appealed.

*471The insolvent debtor relies, in order to establish the grant of the respite by his creditors in the first instance, on the rejection of the claims of his creditors in fixing the aggregate amount of his passive debts, in order to ascertain the legal majority .which must concur in granting the respite. It is admitted, that if the claims of the hypothecary creditors are not to be regarded, there was a legal majority in "favor of the respite : so that the only question before the court is, whether the hypothecary debts constitute a part of the aggregate amount of the passive debts of an insolvent who asks a respite, in order to ascertain the required majority.

The insolvent contends, that as the hypothecary creditors were not prevented by the respite from proceeding on their mortgages and obtaining an order of seizure and sale against the mortgaged property of the debtor, they are without interest to oppose the respite. In support of this proposition, aa a aa la ' he has invoked the opinions of several eminent French jurists,

On this point, the court has no difficulty in coming to a decision. " We have textual provisions of law, which we are . A 7 not at liberty to disregard, and which establish the reverse of the proposition contended for. The Louisiana Code, article 3053 requires the votes of three-fourths of the creditors in number and amount, to grant a forced respite, which takes place when the creditors “ do not all agree.” And under the ■a 4 © word creditors, in the Code, hypothecary and-chirographery creditors are certainly included.

The article 3062, provides that privileged'creditors and those who have a special mortgage, cannot be deprived of the right of seizure by a respite; but if the property on which *472they have this privilege or mortgage, is insufficient to pay the whole of their claims, they shall be restrained from proceeding against the surplus, by the terms of the respite.

It is, therefore, not correct. to say that á respite does not affect these creditors.

The insolvent has further urged, that the meeting of his creditors was irregularly called on a notice of ten days, on account of his being mistaken as to one of his creditors wlio resided out of the state, being' represented therein. To this it has been victoriously replied, that he cannot avail himself of any irregularity which was the result of his own error or mistake in requesting that his creditors be convened on too early a day.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.