Pandelly v. His Creditors

delivered the opinion of the court.

This is an opposition to the appointment of syndics, on the ground that the nomination was not legally made before the notary. The 18th section of the act of 1817, relative to *393voluntary surrenders, .authorises such opposition within ten clays after the appointment of syndics. Before we proceed to examine the particular objections to the proceedings had before the notary in this case, we will remark that the preceding section of that act requires that a copy of the prods verbal of the deliberations of the creditors, should be filed in court, and it shall no longer be necessary to proceed to the homologation of such deliberations. The appointment of syndics does not require the sanction of the court, and in case of opposition, the question is not whether the proceedings shall be homologated, but whether the opposition shall be sustained; or, in other words, the opposing creditors must show that the persons returned by the notary, as syndics, were not. elected by a majority of legal votes.

It appears by the notary’s return that creditors representing an amount of one hundred and seventy-two thousand five hundred and eighty-five dollars, voted for Bein and Le Car-pender. The next highest candidate is C. Samory, who received votes to the amount of ninety-six thousand seven hundred and eighty-one dollars. The opposition cannot be ° J 1 r sustained, unless the opposing creditors show that the syndics returned, received so many illegal votes as if rejected, would leave them with a minority. It cannot be pretended that the whole proceedings are to be annulled, because some illegal voles were received. Such votes may be rejected, but if the syndics returned as elected have still a majority, independently of them, the opposition grounded on the illegality of the election, must fall. The opposing creditors-must, therefore, show that Bein and Le Carpentier received illegal votes, representing more than seventy-five thousand eight hundred dollars of debts, the difference between the vote of Samory and theirs.

The opposition in this case rests mainly on the principle1 contended for by the counsel, that no oath by proxy, can legally qualify a creditor to vote for syndic, and that the pretended powers of attorney,- produced by such proxies, are insufficient.

That the debt may be proved by the oath of an agent or proxy, in these .preliminary proceedings, has often been recognized .by this court, whenever the proxy swears to the fact, as of his own knowledge. There may be cases in ... ° J which the principal is personally ignorant of the existence of debt, as when sales are made by factors for and in the name of principals living abroad. We cannot admit the principle contended for by the opposing creditor, that the p0Wev 0f attorney should contain or express authority to swear for his constituent. In the case referred to by him-in . T . . _ . _ w _ , ^ ,. the Louisiana Reports, 425, Foucher vs. His Creditors, we held that an agent could not make the oath required from an insolvent debtor as preliminary to his surrender, and to obtain a stay of proceedings against his person and property. It is manifestly impossible for an agent to swear that the insolvent has withheld no part of his property from his creditors. That is a matter which the insolvent alone can know. There is a great difference between swearing for and in the name of another, and swearing in support of anothers rights upon facts within the personal knowledge of the affiant.

But it is contended, on the part of the syndics, that no objection was made before the notary to that mode of proof, and that this court held that the case of Seghers vs. His Creditors, 10 Martin's Report, 54, that they would not listen to objections which the opponents had an opportunity to make before the votes were received, and failed to make.

To this the counsel for the opposing creditors answers: 1st. That in the case alluded to there had already been a meeting of the creditors, and the proceedings had been homologated without opposition; and 2nd. the creditors since the promulgation of the Code of Louisiana, are no longer required to meet all at the same time, but may appear successively before the notary, and that they have no opportunity to make objections.

It does not appear to us that the first answer is satisfactory, or that the cases can be well distinguished. By the homo-logation spoken of in that case, could only be meant that no *395opposition had been made, because the statute as we have seen does not, require that the proceedings should be expressly sanctioned by the court. If no objection is made before tbé notary, the only inquiry on an opposition is, whether- the notary erred in permitting persons assuming to be creditors , to vote. He has before him the bilan containing a sworn list of the creditors, and he is bound to require that the debts should be sworn to before any person is permitted to vote. Any evidence which satisfies him of the authority of ah agent, is prim& facie good, and when no objection is made we do not well see how he could take upon himself to refuse a vote. He is not to decide on the reality of the debts, and if he did, it would not conclude the creditors.

But it is said further that no opportunity is offered to make objections, as the creditors are now permitted to appear successively and vote. The statute contemplates a meeting and nothing prevents the creditors from all coming together, or any one of them who may have an interest in so doing, from remaining and making objections as they come forward to vote. If they chose-not to make any objections at the time, and afterwards make opposition, they must show that persons voted who had in fact no right to do so, and the burden of proof is on the opposing creditor. If we deviate from the rule settled in the case alluded to, we transfer the •contest relative to the syndicship from the notary’s to the court room. The case of Planters' Bank vs. Lanusse, also referred to in 10 Martin, 690, is entirely different, from this. That was a case of forced surrender, which the court decided was not governed by the act of 1817. The principle recognized in that case, that the claims of creditors on which they vote, may be investigated previously to the homologation of the appointment, is confined to cases of forced surrenders according to the Spanish law; hut even in that case it is coupled with the condition that the notary must record the proofs each party presents, and return it to the court. The statute of 1817, required only ex parte evidence of- the debts, previous to voting for syndic.

Ify the majority in amount required for 'the election of syndic, we understand, not an absolute majority of all the votes given, but when there are more than two candidates a majority in the popular sense of the word, that is the highest number or plurality of votes; such is understood to have been the Spanish law, and recognized by this court, in 4 Martin's Report, 307.

The opposition in this case, is to the legality of the proceedings, so far as the election of Bein and Le Carpentier as syndics, is concerned. It is not, therefore, important to inquire into the legality of votes given to other candidates.

it is in our opinion only on opposition to a tableau of distribution, that the validity and relative rank of the debts is to be tried finally and contradictorily between all the creditors, and the law does not contemplate such a scrutiny as preliminary to the nomination of syndics. Suppose creditors did not attend the meeting of creditors, it could not be pretended that they would on the final question upon the tableau, be precluded from contesting the claims of those creditors who •had attended and voted, and whose votes had been afterwards declared legal upon an opposition like the present.

According to this view of the case, and of the law which is to govern cases of this kind, even admitting that the objection is well taken to the right, of Millaudon to vote on his claim, for unliquidated damages arising ex contractu, and that the vote of Reynolds, Byrne & Co., ought to be rejected as double and inconsistent, still Bein and Le Carpentier would remain with more votes than any other candidates; and in our opinion, the opposing creditors have not made good their opposition.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District- Court be annulled and reversed; the opposition overruled and dismissed, and that the costs of. the opposition in the court below be paid by the opposing .creditors, and those of the appeal to be paid by the estate.