concurring. I concur with Mr. Justice Wyly that the-act of sale and counter letter, construed together, do not constitute and were not intended by the parties to be an actual sale, but merely to-secure the rights and interests of plaintiffs as the merchants and factors of defendant. The only difficulty in the case grows out of the-defendant’s admission on the trial that he did not place the property in controversy on his schedule in bankruptcy because he had disposed of it to the plaintiffs.
The record shows that he made his surrender after the institution of this suit, and it may be that he considered that under article 2453 R. C. C., which says “ the thing claimed as the property of the claimant can not be alienated pending the action so as to prejudice his right,’’' he was not authorized or justified in placing this property on his schedule, and that as the State court had jurisdiction of the question-of its title, it should there be settled. Be this as it may, I can not say that, under all the circumstances, the admission in the evidence (and uot in the pleadings) is such, an estoppel as will conclude his right to-make the defense set up in this case.
The admission, as contained' in the record, is not necessarily an admission of a sale, and if a construction can be placed on it other than such as must convict him of fraud, such a construction should be-adopted, as fraud is not presumed. The words “disposed of” may only have been used by him to mean such a disposition as shown in*, the pleadings herein, and to be settled in this suit.
The counter letter explains the disposition made of the property,. *671and we arc not informed wliat report lie made of it to the bankrupt court. What may be the effect, as to creditors, of his failure to place this property on his schedule, and what his duty was in making his surrender, are questions, in my opinion, not before this tribunal.