After a petition filed by Mazier for a voluntary surrender of property, but before the meeting of his creditors and the appointment of a definitive syndic, some of Mazier’s creditors instituted this suit, charging him with concealment of property and illegal preferences. The petition sets out in detail the frauds complained of, and concludes by a prayer, that all the creditors named as implicated with Mazier in the several frauds and illegal preferences mentioned, be made parties defendant and cited to answer; that the insolvent debtor, Hypolite Mazier, 'be arrested, &c.; and that the several payments and sales made by Mazier to the other defendants, be annulled and avoided, <fcc.
An order of arrest issued against Mazier, and citations to the other defendants.
As soon as a definitive syndic had been appointed, and before issue joined, the syndic, Cleophas Lagarde intervened in the suit, with leave of the court, adopting the allegations and joining in the prayer of the petition. A default was subsequently taken on motion of plaintiff's counsel, against those creditors who had been served with citation. After this default taken, those creditors filed various exceptions to the original petition and petition in intervention ; of which exceptions, only two require notice.
The first is, that after the cession of property is made by an insolvent, and an order granted staying proceedings, the syndic appointed by the creditors is alone authorized to institute such an action as this.
And the other exception is, that the intervention of the syndic discloses no cause of action, and has not been served upon the defendants.
The first named of these exceptions is based upon the Article 1965 of the Civil Code, which provides, that the action to annul a contract made in fraud of the ■rights of creditors, is to be exercised by the representative of the creditors, when there has been a cession of property. If this were still the law, the irregularity in the institution of the action would have been cured by the intervention of the syndic and his adoption of the allegations of the petition; especially as that intervention was made before any exception taken.
But the law on this subject has been changed by the Act of 1855. The 22d and 24th sections of that Act (Session Acts, p. 436 ; Revised Statutes, pp. 256, 257), are copied from the 11th and 13th sections of the Act of 1840 (Bullard & Curry, 474, 475), and authorized in express terms the institution of a suit like this by ah individual creditor, after the cession of property. See section 21, p. 435 of the Sesión Acts of 1855 and p. 256 of Phillips’ Revised Statutes. And upon this point a radical change of legislation must be specially noticed. The change is found in Article 21st of the Act of 1855, which is identical with the 10th section of the Act of 1840, (Bullard & Curry, 474,) with the exception that the Act of 1840 applies to debtors who have not voluntarily surrendered their property; while the Act of 1855 applies to debtors who have surrendered their property. The cases in 3d Louisiana, 461, and 4th An. 365, which were decisions previous to the Act of 1855, are therefore no longer to be viewed as authority upon this point of practice.
The other exception, so far as it regards the want of sufficient precision or detail in the petition of intervention of the syndic, is not tenable. The syndic therein "adopting all the allegations of the petition herein filed, prays judgment against the defendants as prayed for in the original petition, and for general relief.” Now, the defendants who except, cannot pretend ignorance of the allegations of the original petitiou which the record shows had been served upon them. But it is ex*149cepted, that the intervention has not been served upon the defendants, who except. This portion of the exception can lead to no result, considering' that the exception to the vagueness of the intervention, shows that exceptors have seen and taken cognizance of its contents. Even granting that, under Article 393 of the Code of Practice, defendants are entitled to have the intervention served upon them, what is the legal consequence ? Why, assuredly, only that they are not obliged to answer the intervention until it is served upon them. But no default had been asked for against these defendants upon the intervention, only upon the original petition. Evidently, the plea of want of service of the intervention, is nothing but a dilatory exception, not at all a ground for putting the intervention out of court. We think the defendants have waived service of the intervention, by pleading, as they have done, to its vagueness and insufficiency. ’ ,
The judgment of the District Court is, therefore, reversed; the exceptions filed by the defendants overruled; and the cause remanded, to be proceeded in according to law ; defendants and appellees paying costs of appeal.