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Presumptive Evidence of Fraud.

3505. [R. S. 1804.] If a debtor, who has voluntarily surrendered his property to his creditors, or has been proceeded against for a surrender, shall have given within the year an unjust advantage or preference to any one or more of his creditors, by payment or otherwise, or shall have anticipated the payment, or provided for the payment of a debt not due, the effect whereof shall be to injure the complaining creditor; or shall purchase property for cash, the delivery whereof shall be made to him, and then shall sell or dispose of the same without paying his vendor; or shall remove the same beyond the reach of such vendor, or shall conceal or cover the same in any manner so that his vendor cannot render the same liable, or shall fail to pay over money received or collected for, or deposited with him for another; or shall have made a conveyance, transfer, mortgage or pledge of his property, to the prejudice of the complaining creditor, any such act shall be held presumptive evidence of fraudliable, however, like all other presumptions to be disproved.

Arrest of Debtor.

3506. [R. S. 1805.] Any creditor who may justly believe that he has good cause of complaint, may appeal to a competent judge, who may, thereupon, order the arrest and confinement of the party complained of, until he shall give bond, in a sum to be fixed by the judge, with one or more solvent sureties residing in the State, conditioned for such party's appearance to answer the petition and abide the final order of the court thereon.

Interrogation of Debtor.

3507. [R. S. 1806.] Upon an accusation of fraud, the creditor who shall have brought the same, shall have the right to interrogate the insolvent debtor, and to put to him such written questions on the state of affairs, and the several transactions in which he may have been engaged, as he shall think proper; and the debtor shall answer in writing, in a pertinent and distinct manner; and every insufficient answer on his part shall be construed against him.


3508. [R. S. 1807.] If the jury, summoned for the purpose of deciding on the accusation of fraud brought against the insolvent debtor, declare in their verdict that he has been guilty of fraud, the insolvent debtor shall forever be deprived of the

laws passed in favor of insolvent debtors in this State, and shall be sentenced to imprisonment for a term not exceeding three years; and if it shall appear that the debtor has only been guilty of conferring an unjust preference or advantage upon another bona fide creditor, whose demand was actually due, such defendant may be relieved from imprisonment by paying the complaining creditor, or repairing the injury or fraud complained of; and in case the jury or court shall find the charges against the debtor unfounded, and that he has proceeded, without reasonable ground of suspicion, they may impose such damages against the party complaining as may be reasonable and just.

The creditor who may proceed against his debtor under the provisions of this and the three preceding sections, may, in the same action, proceed against the party in favor of whom the defendant may have made the sale, mortgage, pledge, assignment or payment complained of; and the court may render judgment against such third party, according to law.

Unjust Preference.

3509. [R. S. 1808.] Any debtor who shall, within three months next preceding his failure, have sold, engaged or mortgaged any of his goods and effects, or shall have otherwise disposed of the same, or confessed judgment, in order to give an unjust preference to one or more of his creditors over the others, shall be debarred from the benefit of the insolvent laws, and the said deed or act shall be declared null and void.

If the purchaser of such property shall prove that the property was either sold or engaged to him for a true and just consideration, by him bona fide delivered at the time of such deed, then, and in that case, the sales and mortgages shall be declared valid.


3510. [R. S. 1809.] All defaulting receivers of public funds of any kind, and all unfaithful depositaries shall be deprived of the benefit of all acts passed for the relief of insolvent debtors; also all those whose losses shall have been occasioned by gambling, dissipation or debauch.

Appointment of Syndic by Judge.

3511. [R. S. 1810.] If, on the day appointed for the meeting, the creditors, although duly summoned, do not attend, or refuse to appoint a syndic, it shall be lawful for the judge, on

a certificate of the notary or other public officer, in whose office the meeting was held, stating that the creditors did not attend, or would not appoint a syndic, to authorize the sheriff to perform in every respect the functions of syndic, unless any of the creditors should choose to take that charge, in which case the judge shall appoint the creditor for that purpose, on his giving bond with good and sufficient security according to law.

Syndic May Sue.

3512. [R. S. 1811.] The syndic, without any authorization from any court for that purpose, is authorized to sue and be sued in everything which respects the rights and actions which may belong to the insolvent debtor, and which may concern the mass of creditors; and finally he shall make a distribution of the proceeds of the property, agreeably to the discretions of the court.

Property How Sold.

3513. [R. S. 1812.] The property ceded, excepting incorporeal rights, shall be ordered by the court to be sold at public auction, at such times and places and upon such terms and conditions as may be determined by the creditors; and incorporeal rights, actions and credits may also be sold by public auction, by virtue of an order of the court before which the proceedings are depending, to be made upon the petition of the syndic, setting forth the reasons which may render such a mode of disposition advisable.

Reference to Proceeds.

3514. [R. S. 1813.] The syndic, for the purpose of effecting the sale of the property assigned, shall be authorized to give a release of the mortgages existing on the property in favor of any of the creditors. He shall keep in his hands the proceeds, subject to the same rights in favor of the mortgage creditors, which they had in the property itself.


3515. [R. S. 1814.] In case of vacancy in the office of syndic, by removal or otherwise, a meeting of the creditors to fill the vacancy shall be ordered.

Tableau of Distribution.


[R. S. 1815.] When the time arrives when a dividend shall be declared, or the syndic shall be called on by any

creditor to make a showing of the amount of funds in his hands, if it shall appear that the syndic has funds to distribute, he shall make out a tableau of distribution within ten days next following the day of filing the statement of his account in the clerk's office, containing the names of the several creditors of the insolvent debtor, and mentioning the sums which are due to them respectively; and the tableau shall besides contain the distribution of the sum to be divided among all the creditors in following the order of privileges or mortgages, if any they have, or proportionately if they are ordinary creditors; and the syndic shall deposit the tableau in the clerk's office; the clerk shall notify the creditors thereof according to law.

Suits Anterior to Failure.

3517. [R. S. 1816.] All the suits which may have been brought anterior to the failure, shall be transferred to the court in which the insolvent debtor shall have presented his schedule, and shall be continued against his syndic.

Fees of Attorney for Absent Creditors.

3518. [R. S. 1817.] The fees of the counsellor who shall be appointed to represent the absent creditors shall in no case be paid by the mass of creditors, but shall be levied on the amount which shall be recorded for the account of the absent creditors; provided, that in no case shall the fees exceed the sum of two hundred and fifty dollars. (Amd. Act 69, 1898, p. 93.) Syndic's Commissions.

3519. [R. S. 1818.] The creditors may, in their deliberation, at the time of electing a syndic, determine the rate and amount of the commissions to be received by him; and such determination shall be valid and binding upon the syndic who shall accept the trust.

In no case shall the syndic be entitled to receive greater commissions than at the rate of five per centum upon the net amount of money received; when the commissions of the syndic have not been fixed by the deliberation of the creditors, commissions shall be allowed at the following rates, to wit: five per cent, upon a sum not exceeding fifty thousand; three per cent. upon sums above fifty thousand and not exceeding one hundred thousand dollars, and two per cent. upon all sums exceeding one hundred thousand dollars. And provided further, that the commission shall be allowed only on such sums of money as shall actually come to their hands, or be disbursed and distributed by them.

Discharge of Arrested Debtor.

3520. [R. S. 1819.] Any debtor who may be imprisoned under a writ of arrest, and against whom no charge of fraud is pending, may be discharged from arrest by making a surrender of his property to his creditors.

See R. S. 981.

Syndics Must Deposit Funds.

3521. [R. S. 1820.] All executors, administrators, curators and syndics, shall deposit all moneys collected by them, as soon as the same shall come into their hands, in one of the chartered banks of this State, or in one of their branches, allowing interest on deposits, if there be one in the parish. They shall keep a bank book in their official name and shall on no account withdraw the deposits, or any part thereof, until a tableau of distribution shall be homologated, or unless ordered by a competent court, and then only to pay such debts as may be ordered for payment. On failure to comply with the provisions of this section, they shall be condemned, jointly and severally, with their securities, to pay to the use of the estate twenty per cent. interest per annum on the amount not deposited or withdrawn without authority, besides all special damage suffered, and shall be dismissed from office.

Rule on Syndic to File Account.

3522. [R. S. 1821.] Any creditor or other person interested may, at the regular sittings of the courts in New Orleans, and in the country, as well during the vacation as the sitting of the court having jurisdiction, file in the clerk's office a motion to know whether any executor, administrator, curator or syndic has any funds; and he shall be bound, within ten days, to file a true statement of his accounts and his bank book, if he has one, showing the amount of funds collected by him, and on failure so to do, shall be dismissed from office, and pay ten per cent. per annum interest on any sums for which he may be responsible.




3523. [R. S. 1823.] There shall be appointed by the Governor of the State, by and with the advice and consent of the

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