Brother v. Saul

Spofford, J.,

with whom concurred, Lea, J., dissenting. Upon the authority of the cases of Saul v. His Creditors, 5 N. S. 569; Devlin v. His Creditors, 2 La. 361; Canizo's Syndic v. Cuadra, 2 L. 459; and Shaw, Syndic, v. *226Newton, 3 L. 528, I think the judgment appealed from in this case, should be affirmed.

The pretended pledge of the bank stock was void as to other and even subsequent creditors of Conrey, and it invested Saul with no privilege upon the stock, under the Articles 3124, 3125 of the Civil Code, which were in full force at the time.

There is certainly an equity in favor of the defendant, but no stronger equity than existed in favor of the pretended pledgees in the analogous cases cited above. So well settled was the judicial construction of Article 3125, that it was found necessary to change the law by the legislative enanetment “ concerning pledges,” approved February 12th, 1852, (p. 15.) That Act would have been unnecessary, if the courts already had power to relieve creditors who had attempted to secure themselves by taken pawns, in disregard of the provisions of Article 3125.

As the Act of 1852 can have no retrospective operation, I think we are without power to relieve the defendant, notwithstanding the hardship of his case.