delivered the opinion of the court.
Plaintiff alleges, that he is a creditor of the defendant Bowmar, in the sum of three thousand five hundred and six dollars, on a note or due bill; that after said debt bad become due and demandable,said Bowmar, being in insolvent circumstances, fraudulently acknowledged himself to owe to the defendant, Abercrombie, the sum of ten thousand one hundred and thirty-five dollars, to secure which he executed, in favor of said Abercrombie, a conventional mortgage on his property ; by virtue of which, an executory process having issued, all the property mortgaged was seized and advertised for sale, to satisfy the pretended and simulated claim of Abercrombie ; he further states that said acknowledgment and mortgage, were made for the purpose of defrauding Bowmar’s creditors, and placing his property out of their reach and pursuit. He prays for judgment against Bowmar, for the amount of the note sued on, that Abercrombie be also cited in the same suit; that the note and mortgage consented to by Bowmar in favor of Abercrombie, be cancelled and avoided, as fraudulent and simulated, and that an injunction do issue in order to preserve the property seized, until the final deposition of the case, &c., &c. Plaintiff afterwards amended his petition, and prayed judgment against Bowmar for the additional sum of one thousand dollars.
The first step taken in the cause by defendant, was to move for the dissolution of the injunction on certain grounds by them filed ; which motion was sustained by the district judge, who dissolved said injunction, and condemned the plaintiff to pay to the defendant Abercrombie, ten per cent, damages on the amount of the judgment enjoined, and two hundred *368dollars special damages. The District Court afterwards rendered judgment in favor of the plaintiff, against Bowmar, for four thousand five hundred and six dollars; and the defendant, Abercrombie, havingfiled certain exceptions to the plaintiff’s petition, and an answer to the merits, in which he pleads the general issue, and a special agreement to dismiss the action, the case was tried before a jury, who returned a verdict in favor of the plaintiff, annulling and setting aside the note and contract of mortgage ; and the defendants having in vain attempted to obtain a new trial, the District Court rendered judgment in conformity with the verdict; from which judgment, the defendant, Abercrombie, took the present appeal.
Where an attorney at law appears for and represents an absentee, in all the proceedings in a suit, he will be presumed to have a$ecl throughout with full authority from his client.However erroneous may have been the judgment of the lower court, dissolving the injunction and mulcting the plaintiffin heavy damages, we are now precluded from affording him any relief, as he did not appeal from said judgment in due time, nor did he pray in his answer that it be amended or reversed.
A question was raised in the argument, in relation to the right of R. F. M‘Guire, Esq., to have represented the defendant, Abercrombie, before the District Court; and it was suggested that said defendant, being an absentee, ought to have been represented by a curator ad hoc; that Mr. M'Guire had never been appointed as such ; that when he appeared for the appellant, he was under the impression that he had been so appointed, and that, therefore, said appellant is not bound by the proceedings and judgment appealed from. On examining the record, we have found that R. F. M‘Guire, Esq., as the attorney at law of Abercrombie, obtained the order of seizure and sale, which was afterwards enjoined ; that after the injunction was issued, he filed and signed the exceptions thereto as the attorney of the appellant, and as such obtained the judgment for damages against plaintiff. It is true, he subscribed the exceptions to the petition, as curator ad hoc; but the answer to the merits, the motion for a new trial, the petition of appeal, and the appeal bond, are all signed by *369him as the attorney of ihe appellant; and we are bound to presume that he acted from the beginning as he is yet acting, as the attorney at law of the defendant, Abercrombie, with full authority from his client. '
Everyactdone tlie^mentofdeof jjj* eventual right property°of the sPec.ts such beLávo¡ded.ehU° jn the ,-evo«atory action to aside a mortgage, made in forsfitfsaotaeprove that the mart-was aware insolvency; agaSnst°f &the mortgage as givanftaUm^njury othei-tmfreditors is sufficient.*369The present action is based on the articles 1964-65, and subsequent articles of the Louisiana Code; and on the well recognized principle, that every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor, is illegal, and ought, as respects such creditor, to be avoided. II Louisiana Reports, 221. According to those laws, two sorts of fraudulent contracts made to the prejudice of creditors, whilst their debtor is in insolvent circumstances, can be attacked by any one of them. 1st. Whenever, on the eve of bankruptcy, preference is, given to one creditor over the others, and 2nd, when the contract, made without consideration, is absolutely fraudulent and simulated. In this case, the principal ground of complaint on the part of the plaintiff, is not only that the appellant obtained an undue preference over said plaintiff, but that the note and mortgage were contracted with the view of defrauding Bowmar’s creditors, and that the whole transaction was fraudulent and simulated. The plaintiff relies particularly on the articles of the Code above quoted, and also on the cases reported in 4 Marlin, N. S., 649. 2 Louisiona Reports, 18. 4 Idem., 248. 11 Idem., 521. The evidence found in the record, shows that Bowmar executed the note and mortgage in favor of the appellant, in May, 1837, and Bowmar himself appears to have caused the act to be recorded in the parish of Ouachita ; the debt fell due on the 20th of July following, the note was protested on the same day, and, without waiting for any length of time to elapse, an order of seizure and sale was obtained on the 24th of the same month. Bowmar owed a great many debts at the time he executed the mortgage, and among others, the claim ... , . on which plaintiff obtained judgment against him ; and although it is not perhaps satisfactorily proven that the appellant knew, at the time, tiiat he was in insolvent , . . stances, this may perhaps be inferred from the general facts *370of the case ; however, as the act of mortgage is here attacked as fraudulent and simulated, we are not disposed to say that it was necessary to prove, in a positive manner, that the appellant was aware of the debtor’s-being on the eve of bankruptcy : proof of the absolute fraud alleged against the act, and of the injury resulting therefrom, are the legal requisites to raaintain that action, Louisiana Code, 1973; and as these facts were left to the jury, we are unable to say that they came to an incorrect conclusion in declaring that the trans-O-Ction, between the two defendants, was fraudulent and simulated.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.