delivered the opinion of the court.
André Marchesseau, a creditor of this insolvent, appeals from a decree setting aside an order of court made a few days after the filing of the schedule, on appellant’s affi*338davit, made in pursuance of article 223, of the Code of Practice. This affidavit sets forth that the insolvent had received, as a depositary, two boxes of ready made clothing of the value of two thousand five hundred dollars, and that he refused to give them back to affiant, saying that he had alrea(ty delivered them up. These circumstances were in no way calculated to induce the belief that insolvent intended to depart from the jurisdiction of the court, to secrete his Person from his creditors. They only disclose the nature of affiant’s claim, and insolvent’s refusal, to satisfy him. Such an oath, showing only indebtedness and refusal to pay, could safely be made on every occasion, and cannot, therefore, be considered as a compliance with the above cited article. , 1 . - But passing* by the insufficiency of the affidavit, we entirely concur with the judge below, that, even if the order of arrest ha<^ properly issued, the debtor was entitled to his discharge, The arrest'authorized in cases of this kind has, for its object, io secure the presence of the insolvent within the jurisdiction of the court, until the homologation of the proceedings on his surrender. In this case no accusation of fraud appears to have been made against Toutain by any of his creditors. From the moment, therefore, that the proceedings were duly homologated, the insolvent was entitled to be discharged from imprisonment, under the twenty-seventh section of the statute of 1817, on the subject of-voluntary surrenders. But the appellant contends that Toutain is not entitled to the benefit of our insolvent laws, being, as he alleges, an unfaithful depositary. This he should have established contradictorily with the insolvent on a charge of fraud, or in a direct action, for the return of his alleged deposit; but from his own showing he could have supported neither; for, in a petition filed after the arrest, he alleges that these boxes bad been given to the insolvent as a pledge for the payment of a sum of money, and prays that they be sequestered by the sheriff, on the allegation that he had discharged the debt, thus falsifying his own affidavit made the preceding day.
An affidavit thein'soNenthas received, as de-property "which liverfupeSto° the claimant, u in-tain an order of circumstancesSe are in no way calculated to induce the belief iÍTabout to'de-Jurisdiction l*of the court, or se-from his credit" 01’8,It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.