New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-11-23

having been made party neither to the pro-
ceedings instituted by the relator herein
nor tn The order issued under his applea.
ION for writ of prohibition, the Omission
| is fatal. 60
fled bv the respondent herein be main.
! aimed. and the REALTORS application dis.
| missed. with costs.
ceoroe Winters VS.. p. l.. Coib:-i' Ben.
! n.te secnrity on a release bond.-Plaintif
herein having claim OF Ss7 against one P.
| /, Colby. sued out against this latter writ
| of attachment from the First Justice Court
! for the parish of Orleans, and caused lot
IF Goods belonging to said Colby to be al.
.a.Ied and placed in the custody of the
unstable of said justice court. Subsequent
10 tho rroperty thus attached was restored
~ the nossession of Colby on his having
r;van q release bond, with 2. Bennett as
Security. which bond Is made payable to
one Daniel Crowley, then constable ot said
First Justice Court.
Colby. having failed TO satisfy the ildg.
ment rendered against him for $50 n 1avor
~ q Winters, this latter brought suit
against said T. Bennett security on the
bond above mentioned, and Bennett wss
condemned by the lower court TO pay ths
amoDnt of the Judgment rendered against
Colbv. say $S7 and costs OF suit. From this
;ndrnlent Bennett has appealed. On the
rial of the case. the plaintiff beng asked
nv the counsel for the defendant which ar
ticle of the Code of Practice he brought his
action UNDER whether under article Ia or
under article ll4l: he selected article llA
The defendant, P. Bennett, through bis
connsel. now contends that plaintiff, having
selected to bring his action under article
ll4l. Code of Practice, which applies solely
:, bonds given in cases of seizure under
execution. can not recover under that art.
cle on q bond that has been given under
article 1927 of the same code tor the release
of property attached. He further urges
that the bond sued upon is "a nullity, be.
cause said bond does not come IN.
der either Of the articles OF The Code
of Practice above quoted. 1 am Of
the opinion that the second point
in the defense set up by Bennett, security
on the bond sued upon, is well founded in
law and must prevail. Under the chapter
relative 10 the execution of Judgments
rendered by the justices of the peace, the
constable who, under writ OF execution,
has seized the property OF any debtor, is
authorized by article ll4l OF the Code of !,
Practice to release the seizure If the debtor
execute bond, with a good surety, in y:
double the amount of the judgment, con-
ditioned that the same properly shall be
article Il27 of the Code of Practice, the de-
fendant whose property shall have been
seized, attached. sequestrated or provision.
ally seized, shall OBTAIN a restoration Of
such property if he gives to the justice Of
the peace his bond, with one good security
in double the amount demanded. to satisfy
such Judgment as shall be rendered against
him. From the context of the articles III /
and l14l Of the Code of Practice, it clearly |
bot oh MA
ing against the surety from bonds
given under these two aticles, are not quite
the same. Under article l127, the surety is
responsible tor the amount of the Judgment
that shall be rendered against the principal, +
IN case OF non-payment by this latter; while,
under article l4l, the security is liable but {
5n case that the property seized should not
be forthcoming on the day of the sale; and
If said property is returned to the constable
On or previous to the day of sale. The surety
is discharged from further liability though
the proceeds of the sale be insufficient to
pay the judgment.
In this case the bond sued upon does not 4
come under either Of the two articles above
quoted. 1t does not come under article
ll-1. because, according to the prescriptions
OF that article, the bond required for the
restoration OF the property attached must
Se given 40 the justice of the peace and
N.Y. ~ tiiC tollSidpiC, W satisfy suCu
ncnt as shall be rendered against the de- /
PENDANT. nor does it come under article
ISL. which provides that in case Of seizure
under VIII OF eXecutiuno the constable
sha!S take into his possession the
property seized, unless the debtor shall I
execute = bond, conditioned e'that the 4
o}foperty which has been seized shall be
forthcoming on the day of sale" The
obligation which the plaintiff herein seeks
D.
aond signed by this latter as security to OBJ
Yam the restoration of goods attached N
-aS against Colby; that bond is provided
Sor by article ll27 of the Code I'll Practice,
and not by article Hal. 1t is. therefore, a
Judicial bond, which, in order TO be valid
ara ulndlng, must be framed in accordance
WIN me prescriptions of the law creating
the same. The bond sued upon having been
gwen and made PAYABLE to the "Coustabe
q. .he First Justices Court" hissxesutors,
: onlhlstIators or assigns, is not such
Iond as the article III directs 10 be taken
f"T the release of properties seized by way
q: attachment
According to That ace to Justice % tae
peace Is the only and proper ofiicer to whom
me party whose property has been attached
shuss apply Tor restoration of tue same
Hh complying with the requisites OF the law.
Ale also IL the only and proper officer to
h(eto 'he bond muse be eivvna and no. the |
oasSanleo whom tho law erltisv.is j.e ores
~ }he execution rs shas jGdisisi scr and
aS's wi.o therefore, Sas no legal aspacity :
~ YAK" oS recelVeo under the arr - ~,
: o"e q: Practice . bond o. eYie raeuee of
,he one sued upono There beine 90 law d.
,,eeIHS oS authorizing such al bond 90 be
'dHeh oy and made payable to ehs consta- |
we .hat pond has no legal etiece and can
no De binding upon the security.
A-tte wherefore. the inn = a..