dissenting. The object of this suit is to subject the defendant, .HMazier, whom the plaintiff’s allege to be their debtor, to the penalties and forfeiture of privileges consequent upon a fraudulent surrender of property; and to annul the payments made by him to other creditors, his co-defendants, and recover from them the amounts which they have received unjustly and by preference. The petition was filed three days after the surrender made by Mazier had been accepted by the District Judge for the benefit of his creditors.
A writ of arrest was issued against the insolvent debtor, but ineffectually; and eight out of the other defendants were cited in the latter part of September and begining of October, 1857. In the meantime, and previous to the citation being made on any of these parties, a provisional syndic was appointed, a meeting of creditors held, their deliberatoins homologated without opposition, and a syndic appointed, who qualified immediately. On the 27th of October, a judgment by default was entered against all the defendants, except the insolvent debt- or, who had not been arrested, and Vignerie and Cardillac, upon whom citation could not be made, as appears by the return of the Sheriff. But the day previous, the syndic had filed a petition oí intervention, in which he adopted the allegations of the plaintiff’s petition, praying for judgment accordingly. There was no prayer for the citation of the defendants, nor were any steps taken to have them cited to answer the intervenor’s demand.
Some of the defendants filed seperate peremptory exceptions, claiming the dismissal of the action and of the demand of intervention on the ground, among others, that the surrender having been accepted, individual creditors could not institute such an action. The court below having decreed that the plaintiff’s action and the intervenor’s demand be dismissed, they have both appealed from that decree.
In order to arrive at a correct conclusion touching this matter, it is necessary to keep in view the two-fold character of this suit. With regard to the creditors who are sued, it is the nature of a revocatory action; whilst, in relation to the insolvent debtor, its object is to have him deprived of the benefit of the insolvent laws, and subjected to the penalties attached to a fraudulent surrender. The cession having preceded the institution of this suit, and none of the defendants having been cited previous to the appointment and. qualifying of the syndic, the revocatory action could not have been brought by the plaintiffs in their *150individual capacity. After a surrender, the syndic alone has that right, under the Act of 1855, p. 436, sections 22 and 24; for its provisions are merely the reenactment of the Act of 1840, p. 134, sections 11 and 14, and are not derogatory to Article 1965 of the Civil Code in that respect. 4 An., 365. Neither can the plaintiff’s action be maintained by the aid of the intervention filed by the syndic, upon which no legal steps whatever appear to have been taken. C. P. 393. Besides, the intervention does not give character to the suit: “ the Judge cannot refuse to admit it, but must pronounce on its merits, at the same time that he decides the principal action. C. P. 394. It is the duty of the intervenor to be always ready to plead, or to exhibit his proof, in order not to retard the principal suit, for the reason that he has a seperate remedy to enforce his rights. C. P. 391. ' Had the petition of intervention been served'on the defendants, this might perhaps have saved the action thus improperly brought by the plaintiffs in their individual capacity; but, as the matter now stands, there is nothing before the court. The exceptions pleaded in this case are peremptory and fatal to to the action. I think, however, that the Judge a quo erred in dismissing the action as regards the insolvent debtor, Mazier, who had not- been made a party to the proceedings in the court below.
I am, therefore, of opinion, that the judgment of the court below ought to be affirmed, with costs, reserving to the appellants the right to proceed against the insolvant.
Merrick, O. J., concurred in this opinion.