McAllister v. Strode

Burnett, J., after stating the facts of the case, delivered the opinion of the Court.

The counsel for the defendant, Beard, has filed no brief and cited no authorities, except the opinion of the Court below, as found in the transcript. The counsel for plaintiff, in his brief, refers to the cases of Bainbridge v. Clay, 3 Martin, 262; Herring v. Levy, 4 ibid., 383, and Clark v. Wright, 5 ib., 122. The statute of Louisiana, for the relief of insolvent debtors, was- passed March 25, 1808, and repealed the previous act, passed July 3, 1805, and various amendatory acts were subsequently passed prior to 1827. 1 Deslix’s Digest, 567. The proceedings referred to in the cases cited, were had under the statutes of Louisiana; and the principles settled will apply, in part at least, to some of the questions arising in this case.

The first question naturally arising in this case, regards the rule of construction applicable to our statute. In the first case cited from Martin’s Reports, the learned Judge, in delivering the opinion of the Court, said: “ The right accorded by law to an unfortunate debtor to cede his property to his creditors, and thereby be relieved from personal arrests and pursuit for debts, may be properly considered a privilege and benefit enacted exclusively for him. To avail himself of such privilege, all the requisites of law should be fully complied with on his part, and so far as he has failed to comply with them, he loses its benefit.”

The same doctrine was laid down by this Court in the case of Cheever against Hays, 3 Cal., 471. In that case, it was held that, “ the Legislature has pointed out the mode by which these persons may escape from the liabilities which misfortune, or their own imprudence, may have brought upon them; to do this, a certain course must be pursued, and unless it is strictly followed, all the benefits of the act are lost.”

From these authorities it legitimately follows—that the rule of strict construction must be applied to the act, and he who asks to enjoy its benefits, must comply strictly with its requisitions. And this rule would seem to be founded in the most manifest justice. When a party asks to be entirely absolved from all future liability upon his honest contracts, and thus to throw upon his innocent creditors the loss occasioned by his own misfortunes, or his own negligence and mismanagement, he should surely comply strictly with the little the law requires him to do. Having enjoyed the result and product of the honest labor of others, and having had all the chances of speculation exclusively to himself, then, when he seeks to throw all the losses upon those who furnished him the means upon which to operate, it is certainly