Fabre v. McRae ( 1859 )

Cole, J.

This suit was commenced by plaintiff against R. W. McRae.

Hall, Rodd <& Putnam, intervened.

Afterwards, plaintiff moved that A. Provosty, Esq., be made a party defendant to the suit, on the ground, that since the commencement of the same, the defendant, R. W. McRae, had made' a surrender to his creditors, and Provosty had been appointed syndic.

The judgment was in favor of plaintiff against the intervenors and defendant.

The syndic has alone appealed.

In consequence of the surrender, any further proceedings in this case ought to have been suspended, and the claim of plaintiff ought to have been cumulated with the insolvent proceedings, and settled contradictorily with the creditors of McRae. Astor v. Syndics of Saul et als., 4 M. N. S. 632 ; Marsh v. Marsh, 9 Rob. 46 ; Posly v. Weems, 4 An. 195; Clark v. Oddie, 4 M. N. S. 625.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, so far as plaintiff and the syndic are concerned, and that this cause be remanded to the lower court to be proceeded with according to law, and that plaintiff pay the costs of appeal; and that the costs of the lower court abide the final termination of the suit.