Smith v. Logan , 1 Gunby 9 ( 1885 )

Mayo, J.

Where the writ of injunction is served on the sheriff, hut not on the seizing creditor, the injunction will not be dismissed for this ground. The sheriff is the actor whose proceedings are enjoined.

2.An insolvent may give property in payment to reimburse his surety, who has partly paid and partly assumed the obligation which is specified as the price of the sale.

8. Where a transfer is made without price and without intent to sell, even though formal, and accompanied by delivery, creditors of the vendor may seize the property in the hands of the vendee and treat the transfer as an absolute nullity. Where, on the other hand, the sale is real though fraudulent, as where an insolvent sells his property or gives it in payment to one creditor for the purpose of defrauding others, where, in other words, there is a real intention between the parties to consummate a transition of ownership, the sale cannot be attacked collaterally, but only by direct action.

4. The word “ forbid, ” in Article 2658 C. C., does not amount to a prohibition within the meaning of that term as used in C. C. 12 ; a giving in payment by an insolvent debtor is only relatively null. 30 An. 373.