have been practised in the courts of succession in Louisiana, under color of the civil law privileges, upon the estates of deceased persons, imposi tions upon the commercial creditors of the North, and upon the heirs and personal representatives here, such as are without parallel in the records of the jurisprudence of any other civilized country on the face of the earth. But, dismissing the subject of privileges upon the property of persons deceased, with this cursory consideration, let us briefly review the more prominent of those which arise in the daily contests between the creditors of an insolvent.

First, of course, in the order of preference, come the "law expenses." If the debtor be absent from the state, leaving no representative, and his property is attached, the court, upon this suggestion, appoints an attorney to represent him, whose duty it is to corrrespond with the defendant, and to whom time is given for that purpose. The fee for this attorney, whether subsequently employed by the defendant, or not, is awarded by the court, and constitutes a very important item in the "law expenses" privileged upon the proceeds of the property attached. It is said, that this system of appointing attorneys to represent absent heirs and absent defendants, which in past time has been most outrageously abused, and under which creditors and heirs have been subjected to wholesale plunder, has been reformed by the new constitution.

Then come in the privileged claims which in every case may arise, and some of which in every case do arise.

First, is the privilege of married women. This is a subject of such vast importance, that it deserves and must receive a separate article for its consideration. Suffice it to say here, that the Northern merchant, in giving credit to the merchant of Louisiana, cannot ask questions of more vital consequence to his interests than these: Are you a married man? Is there an ante-nuptial, notarial contract between yourself and your wife? For such is the law, that the married woman may sweep into her possession every dollar of the property of her insolvent husband, leaving not a shilling for his creditors, without regard to the nature or privileges of their claims.

But suppose that this privilege does not arise. Next comes that of the lessor and most careful is the civil law in establishing and protecting the privilege of the lessor. For the amount due or to become due to the lessor, upon the lease of the building in which the property attached or seized is stored or kept, he has a privilege upon its proceeds, taking precedence of the attaching and every other creditor. He may claim this privilege by intervention in the attachment suit, in any stage of the process. He may enforce it by a provisional seizure" of the property deposited in his building, (unless the property be owned by some other than the lessee, and the building is avowedly leased for the storing of such property,) and he may follow the property in whose hands soever he can identify it, for fifteen days after its removal from his premises. This is but a passing glance at the privilege of the lessor.

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Next comes the privilege of the vender. This privilege is oftentimes of vast importance to the creditor. It is a privilege attaching to the specific property sold, for the payment of the unpaid purchase money. In cases in which it may be enforced, it sets at nought the vigilance of the ordinary attaching creditors, and it may be set up and enforced in the same manner as that of the lessor, either by original suit, or by intervention in the orig

inal suit, in all cases where the specific property is capable of identification as such, or remains in the possession of the vendee, or where he has not parted with it in good faith, and for a valuable consideration.

It will at once be seen of how great importance this civil law privilege to the vender may be to the Northern merchants, in their creditor relations with the merchants of Louisiana.

Another privilege, of much importance to the mercantile community, is that of the consignee, commission merchant, or factor, upon the property of the principal in their hands, for the payment of their expenses, commissions, and advances, and for the general balance due them. This claim takes precedence of that of the ordinary creditor, and may be enforced in like manner as other privileges. The salary of the clerk, and the wages of the laborer in the employment of the debtor, are privileged claims upon his property, or its proceeds, taking precedence of those of the general creditors.

By the civil code of Louisiana, many privileges are created of particular, and not general, application. Of such are the privileges of contractors, artizans, mechanics, laborers, and the furnishers of supplies and materials, upon the buildings by them designed or constructed, or upon which they have labored, or for which they have furnished the materials. Of this nature, also, are the privileges of the overseer, and furnisher of plantation supplies, upon the last and growing crop, or its proceeds, for the payment of their salaries, and the liquidation of their accounts. Of these privileges upon this specific property, nothing can take precedence, save the necessary expense for its preservation, transportation, and conversion into money. A large class of privileges created by the Louisiana code, and those which are of the most frequent application in contests for preference, are those upon vessels, and especially upon steamboats. These are oftentimes sufficient to absorb the entire proceeds of a steamboat, which has been sold at the suit, and upon the attachment of one of the ordinary creditors of the owners-leaving the attaching creditor, and all others whose privi. leges are not established by law, nothing to satisfy their claims. Thus, a mortgage upon a steamboat-though the first mortgage-if she is to be subjected to the application of the Louisiana laws, by navigating the river which washes her shores, is inadequate security for the payment even of a small debt. Your security is dependent upon her good or ill success in obtaining freight and passengers. This you cannot insure. If she is unfortunate, the expenses of navigation are enormous, and soon overwhelm the property. These are all privileged claims, as between themselves, according to a classification of priority fixed by law, but all taking preference of the ordinary or attaching creditor, or the creditor who, by contract of pledge or mortgage with the debtor, has acquired a special property in the vessel. These are the salaries and wages of all the officers, and men and women employed on board-the workmen who have labored in the construction and repair of the vessel-those who have furnished materials and supplies-those who have furnished wood-and those who have furnished provisions. These privileges must be claimed within a certain time prescribed by law, or they are lost, and the claims fall back into the class of ordinary debts.

Enough has been said upon this subject to manifest clearly enough the very great difference which exists between the laws of Louisiana and the other States of the Union, in a matter so material to the relation of debtor

and creditor; and enough to indicate the importance of a more extended information upon this subject in the mercantile community, than now exists. But that portion of the civil law of privileges which is, when considered in its various phases and in all its influences, of the highest impor tance, is that which grows out of the civil law of the domestic relation of husband and wife. A review of this subject must be reserved for the next article.

Art. VIII-LAW OF DEBTOR AND CREDITOR IN ALABAMA.

NUMBER II.*

In the article preceding this, we have given a practical, but brief ex position of the principles of law in Alabama, directly affecting the relation of debtor and creditor. In this, which follows, we propose, in plainly defined divisions, to consider what may be denominated collateral provisions operating upon the rights and remedies of this relation. If we have not done so previously, it may be well here to mention that the common law rule is followed in Alabama in all cases, except so far as the peculiar arrangements of the local institutions, and positive statutory enactments, determine its inconsistency.

OF FRAUDS.

Fraud in Alabama, which is usually considered in controversies arising upon deeds of trust or mortgages, grows out of expressions on the face of the deed, or from extrinsic facts proved with respect to the motive and conduct of the parties. This fraud may be fraud in fact or fraud in law, positive or constructive fraud. The latter species is that act which the law declares to be fraudulent, without inquiry into the motives, but which carries irresistible evidence of fraud. Great inadequacy of price, however, though indicative of it, would not be regarded in general as evidence of fraud. But in equity, all acts, omissions, or concealments, involving breaches of legal or equitable duty, trust or confidence, and working injury, or effect. ing undue advantage, amount to fraud. Fraud truly is a question of law; but when the evidence of fraud is furnished by parol, in connection with a deed, fair on its face, it becomes a mixed question of law and fact. Fraud may be made out not only by proof of it in fact, but by the insertion of clauses and stipulations in the deed inhibited by the rules of law. So it may be the result of fair inferences, as where creditors known to the parties capable of being hindered and delayed in the recovery of their debts, are in truth hindered and delayed in consequence of the act. Thus, if a debtor in an insolvent condition, with judgments against him, and others about to be obtained, sells his entire estate to his father-in-law, providing for the payment of only a portion of his debts, and giving a credit for the remainder of the purchase money of from seven to twelve years, the law will presume a fraud, because the tendency is to hinder and delay creditors. The retaining possession by the grantor, after an absolute sale, is also evidence of fraud. When in such case the contract is declared void for fraud, it is void from the beginning; and the deed will not be permitted to stand as security to the grantee, for responsibilities incurred, or advances made. If, nevertheless, the grantee has in good faith made ex* For No. I., same subject, see Merchants' Magazine for December, 1846, (Vol. XV., No. 6, page 580.)

penditures of money on the trust property, he may be entitled to reimburse ment with interest.

In considering questions of fraud upon the face of the deed and upon extrinsic facts, there arise often questions as to the possession of property, and especially of perishable estate.

The possession of the property in the grantor, if consistent with the deed, is not a badge of fraud; nor would an inference of fraud arise from the mere fact that the property was to remain in the trustee's possession, until he should choose to sell, or be required to do so by the beneficiaries. But still a possession by the grantor for three years, coupled with other unexplained circumstances, might be so considered. And there is no doubt that an execution creditor may compel creditors secured by trust, or mortgage, to close the trust, and distribute the surplus. By statute, also, a creditor may advance the mortgage debt, and have the benefit of the deed; or force the sheriff to levy, on suggesting a fraud, and executing a bond of indemnity.

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With regard to the possession of perishable property, there are circumstances under which a debtor not appearing to be insolvent, or in failing circumstances, may retain the possession and use of property without the mere fact of some of it being perishable, avoiding the deed itself; but the distinction to be observed in such cases is this-if the reservation to the use of the debtor is positive, or the debtor be in failing circumstances, then the attaching creditor would not be affected by the reservation. distinction with respect to such deeds of trust or mortgages lays also in the fact, whether the management and possession of the property is retained by the debtor, or the trustee. If the debtor retains the possession and use of the property, it would be, we think, a badge of fraud if he were shown to be in a failing condition; but a conveyance of lands, slaves, mules, plantation utensils, corn, bacon, etc., giving the trustee the manage. ment, would not be fraudulent of itself.

It seems to be essential to the passing of title to the trustee, under a deed of trust, and to its validity, that the creditors intended to be secured, assent to it. Until such assent, the deed is revocable by the debtor, and by levy of an execution. The absence, however, of positive assent by the creditors, might not invalidate the deed, if absolute, of all the effects of the debtor, and providing for the benefit of all his creditors without con

dition.

With respect to the consideration of such deeds, when the contest is between a creditor and the trustee, the consideration of the deed is not proved by the recitals of it, or the admissions of the grantor; but must be proved.

It is, doubtless, settled law in Alabama, that a debtor in failing circumstances may prefer a creditor, in executing a deed of trust or mortgage, provided he does not reserve any benefit to himself. Touching the regis tration of such deeds, the statute law of Alabama requires that, if it be of personal property, it shall be recorded in the office of the clerk of the county court where it is, within thirty days; and if lands, within sixty days. If, however, the deed be made in another State, contemplating no execution in this, as to the rights of an attaching creditor, such deed, as to proof, acknowledgment and registration, will be controlled by the laws of that State where made. The local law has also provided for removals of property encumbered by liens from other States, and from one county to

another; declaring, that, in the first case, they shall be recorded in the proper office of the county to which removed, within twelve months; and in the last case, within three. A distinction has grown up out of this enactment as to what is an encumbrance. It is the lien placed upon the property by the owner, and who is himself the debtor to be affected. Thus, it seems, it does not affect an ante-nuptial settlement, or deed or will, made by another person than the debtor, for the advantage of his wife and children, etc.

OF PROCEEDINGS AGAINST THE ESTATE OF A DEBTOR AFTER DEATH.

1. In the case of solvent estates.

An executor or administrator is exempt from suit for six months after the grant of letters; and within two months after the issuance of letters, is required to advertise for claims against the estate to be exhibited. Claims against the estate are to be exhibited within eighteen months after the issuance of letters, or within eighteen months after the cause of action accrues. The requirement does not, however, exist as to debts contracted out of the State; nor to femmes covert, or infants, or heirs, or legatees, claiming as such. In the pleadings respecting the presentation of claims, the six months during which the representation cannot be sued, are not included in the enumeration of months. But if the plea of non-claim be in-, terposed, and a general replication be made, the burthen of proof lays on the plaintiff. If, nevertheless, he specially reply that advertisement was not made, etc., it shifts the burthen of proof to defendant. Presentment of a claim to one of two representatives, is notice to both. But the mere issuance of a writ is not such a presentment as the statute requires. 2. In the case of insolvent estates.

When the estate of a person, real and personal, is insufficient to pay the debts of such estate, the representative is required to file in the office of the court whence issued his letters, a written allegation thereof; and in connection therewith three schedules--one enumerating a statement of all the goods and chattels, and choses in action of deceased, and their estimated value; one a statement of the real estate, its situation, the decedent's interest therein, and its estimated value; one of the various debts due by deceased, and the residence of the several creditors. In not less than thirty, nor more than sixty days, the question of insolvency is heard by the court, notice being by publication or personal service, given to creditors. If no opposition be made, the estate is declared insolvent. An order then issues appointing a day for settlement, not less than thirty, nor more than sixty days. On the day of settlement the creditors meet, and a person is selected, a resident citizen of the State, who acts as administrator de bonis non, or the previous representation is continued. Every person holding a claim against such estate, is bound to file the same in the clerk's office, within six months from the time of the declaration of the insolvency of the estate, verified by affidavit. The administrator or a creditor may contest the claim within nine months after the estate is declared insolvent. A settlement shall be made within not less than nine, nor more than twelve months from the time the estate is declared insolvent ; and the estate is ruleably divided among the creditors, from time to time, as assets are in hand. A suit pending is not abated on plea of insolvency, but the suit is tried on the merits; and if judgment is recorded, it is certified to the Orphans' court as a claim.