delivered the opinion of the court.'
This action is brought to recover a balance of $418 34, due’ on a promissory note drawn by Louis Schmidt ’to the order of and endorsed by defendant. The defence'set up was that defendant has long since made a voluntary surrender of his property to his creditors, and by a supplemental petition has placed plaintiff on his schedule. The "Judge ordered that this suit should be transfered to the Parish ‘ Court in aMd for the Parish and City of New-Orleans, there ,to be cumulated with the proceedings of the concurso., The plaintiff appealed.
The note sued on became dup and' was protested only on the 28th of March, 1840, being the last of four notes given by the maker in payment of- a lot of ground purchased by him in April, 1837. At a sale made in November last,, of the property surrendered to his creditors by Louis Schmidt, plaintiff became the purchaser of this lot for the sum of $280; thus reducing his claim against defendant as endorser to the surtí now demanded. The surrender of property which defendant pleads in bar of this action was madron the 19th of March,' 1838, and the proceedings were finally homologated on the 28th of March, 1840. No where in these proceedings is any mention made of the plaintiff, or even of the note on which: *466this suit is brought. They are clearly then as to him., res ¡nfpr anos acfat and can in• no manner affect his rights; although plaintiff could, not he considéred as an absolute creditor before the protest of the note and due notice to defendant as endorser, yet he was a Contingent and conditional creditor, and as such, sho’uld have been- carried on the schedule and made a Party to ^ concurso. Such was the doctrine of the Spanish ]aw fr0m which we have derived in a great measure our prin- - . . . . , and manner of proceeding m cases of insolvency; Febrero, Part. 2, Book 3, chap. 3, No. 14. If it be objected tfrat u^er the statute of 1817 defendant was bound to set down on his schedule only the names of his absolute creditors and that plaintiff became a creditor long afterwards, the de-fence set up cannot then avail defendant because this suit is brought to recover a debt which has accrued since his failure, and from the payment of which it could not exonerate him. This case can hardly be distinguished from those of Bainbridge vs. Clay, 3 Martin, N. S. 262; and Thomas et al. vs. Breedlove and others, 6 Louisiana Rep. 575. We can see no proper ground for the order transferring this case to the Parish Court. fraTe held, it is true, that if the insolvent be sued by a 7 7 J creditor, not on the bilari, his suit will be cumulated with the proceedings which the insolvent has commenced, but it is evident that this can be done only while the concurso is still pending; 4 Martin, N. S. 624. In the present case, the proceedings of the concurso were at an end long before the insti- ... . . tution of this suit. No-cumulation was therefore possible nor could any useful purpose be answered by it; as to the supplemental petition presented by the insolvent even had it been notified to' plaintiff, it sürely could not have made him a party to proceedings which had alrea’dy taken place, and of which fre had received no kind of notice whatever. It has been held that a creditor who is not put on the hilan and duly cited to attend a meeting of the creditors is not bound by the proceed, *n5's’ even if he is placed on .the tableau of distribution, but declines receiving his dividend ; 6 La. Rep. 578.
The holder note^iiot8 yet plated11 on*1 the hilan of tine insolvent debtor, as a Creditor,diü0annd made a party to the concurso. cannot^be"made a party to the insolvency ol his debtor,^if he placed on the suplemental * afterl°the insPl-vent proceedings are closed and homoiogat- So a creditor ¿íthe hilan and bound by the insolvent proceedings even if he Is placed on distribution1 but fifg^'hisre<livl-dend.*467It is therefore ordered that the judgment of the Commercial Court be reversed, and that this case be remanded for further proceedings ; the appellee paying the costs of this appeal.