New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1859-12-07
err RrvE 90 IzR7' DECISIONS. (


Ths following cases were adjudged in this Court
On monday Dccember5 5, 1s59--five Judges present:
E,,usor. Syeuenso,, & CO., dppelQees vs.. VIM. B.
e,nfut a as dDpelldnts. Appeal from the Fourth
District Court of New Orleans Opinion OF the
Cont By Judge Land. The plaintiffs obtained q
ind3Tncut against the defendant in the parish OF
Madison, for the sum Of $l77l s., and afterwards
instituted this suit on their Judgment in the Fourth
District Court Of this city, and on the allegations
that the defendant was an absentee from the State,
and that tho Liverpool and London Insurance Com
pany and the Sun Mutual Insurance Company were
Indebted to the defendant, caused process of at
tachmeat and garnishment to be issued, in pursu-
ance Of their petition.
on che plaintiffs to show cause why the writ of at
tachment should not be set aside and quashed and
this suit dismissed on the ground udt an attachment
cdanot legally issue after Judgment and taat The en,
scra. among other grounds, which it is unnecessary
for us to notice, as We consider this gronnu alone
sufficient to dissolve the attachment, and DISMISS
the suit for the following reasons
i. Because Judgment creditor mas no Tigne'
under our attachment laws, to proceed against the
property of his debtor by process 81 satiachmsh.
His remedy is by writ Of eri facas fSE the coilec
ton of his Judgment. G., part col
entitled to the process of punishment, before the
passape Of the act Of the 10th March, 1889, page
! los and the act Of the 10th March, is40, page ~
7 amendatory thereof; and the psainlIs da NOT
n
pying for and causing writ of ifacias to issue
| on their Judgment, as they were bound to DO, IN
order to avail themselves Of the remedy given by
these statutes. Parties resortng TO the renegy 81
attachment or Rarnishment have ever been held to
q strict compliance with all the formaities pre-.
scribed BY law, under pain Of nulity. Feather
ston.h VS.. Compton. Sd A. $50. Judgment reversed.
a. q. Games, appoaee, KS. Page, Bacon q Go.
1t al, appellants, L. NJ. BuIo,1, iateyUeu0,s--Ap-
peal rom the Third District Court Of New Orleans
Opinion Of the Court given BY Judge Cole.-The
plaintiff attached funds in the hands Of James Con-
molly s. Co., as property OF defendants, Page,
the Sixth District Court Of New Orleans, in the
hands of James Connolly & Co., as property Of
Page, Bacon & Co., and obtained judgment for
$500 and costs, with privilege on the property
attached the rights Of the various parties to be
ascertained contradictorily in the suit of A. L.
Gaines vs.. Page, Bacon & Co. There is no dispute
between the two attaching creditors, Gaines and
Frishy the former having first attached the funds.
The controversy is between the two attaching
creditors and the assignee Of the defendant L.
N. Barlow, who intervenes and claims the funds by
virtue of an assignment executed in New York on
the Sd Of April, 1856. Only one member of said
firm of Page, Bacon & Co. signed the deed of as
signment. The District Court said / am salts
fed that under the laws Of New York, expounded
by the highest tribunal of that State, such an as
signment is invalid; and if it be without effect at
the place OF its execution, it is imperative every
where; and therefore the pro- erty has not been
Invested out of the firm Of Page, Bacon s. Co., and
the assignee acquired no title under the assign
ment." 8 Sanford S. G., 2S4 0 Sanford S. c., 293;
5 Law Reporter $780,
| copy of the assignment is in evidence, with
the dispositions of three Witnesses (practisng law
yers in the city of New York; who prove its exc
cution and delivery, and state that in their opinion,
the assignment is in accordance with the laws Of
the State Of New York as to form, and legally
valid, both in form and substance, under the laws
of that State. s
| 1t is unnecessary to express an opinion whether
one member of a firm can, in New York, make such
| an assignment without showing authority from the
other parties, as the case must be remanded.
On the trial of the rule why plaintiff should not
be first paid out of funds in the hands of Connolly
d Co., the assignee offered to prove assignment by
COPY of the original act. The District Judge adj
mitted it, He erred. The assignment is private
acts in existence and under the control Of Bar
low.
The reason given for its non-producton is, that
Barlow may require the original to execute his
trust in New York or elsewhere. If the Courts of
other States would not, under such circumstances,
depart from the rule which requires the production
of the best evidence, there is no reason why our
Courts should not be as stringent in their require
ments. Judgment on rule reversed, aud case re-
manded.
Wm. Fish, appellee, vs.. Johnson Lecine OF a., ap-
1,ellaasts Appeal from Fourth District Court Of
New Oreans.-Opinion of the Court by Merrick,
g. ]. There is motion in this case to dismiss the
appeal, on the ground that two of the obligors to
instrument sued upon have not been made parties
to the appeal. The appellants counselreplies that
it was not necessary, because they were never
cited or made parties to the suit in the Lower
Court. This answer is sufficient. The appellant
is not required to look beyond the record and cite
persons on appeal who were not parties to the
Judgment rendered by the Lower Court
State Of Louisiana, appellee, vs.. Della S,oit, alias
Bridget Fury, appelant Appeal from First Dis.
by Judge VOORHEES,. Judgment of District Court
affirmed
Green, Harding d Co. VS.. j. NJ Ref & Co. The
same vs. r. B. Sykes. The same vs.. Cady d
HOl,nes.-The question was the legal construction
of contract of limited copartnership or stock
company under the style Of the New Orleans and
Florida Steamship Company. Judgment affirmed.
Johs. q. Hanna, appellee, We. Nm. B. Harmon,
appellant, Susan w. Giles, iaterueaor.-Appeal
from the Fifth District Court Of New Orleans.
Opinion of the rtdelivered by Judge Cole. Judg-
ment affirmed. The District Court considered tile
sale of a'horse simulated
s. Y. Cochran, appellee, vs.. z. Cofey, appel
lda-Appeal from Fourth District Court of New
Orleans Opinion Of the Court by Judge Voor-
HES. This case was tried in the Court below be-
fore q jury who did justice to the parties. Judg-
ment affirmed.
z. Y. Brent, Son d Co., appellants, vs.. James s.
Sh0,lse, appellee Iauifaaaa ct all ite10eno,s APPEL
lees-From Third District Court of New Orleans
Opinion Of the Court by Judge VOORHEES, The
plaintiffs, averring themselves to be the creditors of
the defendant, petitoned for writ of attachment,
on the ground that their claim had become due
from the date of the surrender made by their
debtor in the State Of Kentucky, the place of his
residence The oath taken by their agent is first to
the fact Of the agency and then proceeds to state
" that James H. Shouse, to the best of his knowl-
edge and belief is indebted to the said Z. T. Brent,
Son Co. in the full sum of $l0 900, with interest
from July ed, 1857, and that the same is due and
owing and that the said j. H. Shouse resides out of
the State Of Louisiana that neither Of the firm of
II Y. Brent, Son Co., are in this State, but that
The petition states that although the nstalment of
the several bills of exchange signed by the de-
PENDANT have not matured yet these bills have be.
come due and eXigible by the voluntary surrender
and cessiOn of property made by the debtor.
curator al hoe was appointed to represent the
absentee, j. Fl. Shouse; and in the meantime the
firm of Ferguson Goodoe & Hoskins, the defend
ants assignees in Kentucky, filed third opposition
claiming the property in the hands of the gar
nishees by virtue Of the assignment The curator ad
hoe took rule on the plaintiffs to show cause why
the whole proceeding should not be dismissed.
The ground assigned was that at the time of the
filing of the suit and issuance of execution of the
attachment no part Of the plaintiffs, claim was ac
not such as the law requires when the debt is not
duen The District Judge having maintained the
attachment the case was subsequently, put at issue
by the parties, and trial had resulted in judgment
of dismissal. Plaintiffs appealed.
Testing these proceedings by the rule laid down
in the code, and the acts of the Legislature in ref
crence to debts or claims not due at the time, it is
evident that the attachment was sued out wrong
fully; for the plaintiffs have not alleged nor sworn
that their debtor was about to remove his property
out of the State before the falling due of their claim