New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-11-26
COURT RECORD.
WEDNESDAY, NOVEMBER Is. 1874.
First District Court.

Flrst District Court.
INFoRMAT1oNs FILED.
Petty larceny-George Morgan, T. L.
Banks, Isaac Frazier.
HOLLE PRosEQU1 ENTERED.
Assault andsbattery- Goetz. Louis
Bourgs, Joseph Paoletti.
Petty larceny-Willis Henry.
Wounding less than mayhen-John
Smith.
Knowingly receiving stolen goods-F. J.
Flatwell, Henry Name.
ACQUITTED.
Petty larceny-James Kelly. Eugene
Joseph.
Assault and battery-Celestine and AL.
bert Pleasant, Philip and Katie Kramer.
CONVICTED.
Petty larceny-Victorine Jones. Leon
Davis.
SENTENCED.
Assault, etc.-Ann Smith, six months; S.
II. Decker, $50 fine.
Petty larceny-James Derbigny. nine
months.
Second District Court.
Succession of Pierre Ferrar opened.
Filth District Court.
Judge Cullon rendered the following de.
cisiOn:
Everett Lane & Co. Va. E. II. Nc.
Daniels-This cause is before me on q re.
hearing, on the trial of which the evidence
has undergone change as to the identity
of the partnerships of ID. j. Mcdonald Il
Co. and +. H. Mcdaniel & Co. On the
first trial they we're shown to have been the
same. having changed the style thereof,
merely for the purpose of facilitating col.
Al,4 Al Il
place on the fifteenth July, A. d. 1873, the
firm having been dissolved about the first
Of May of that year. The proof is now posi-.
tive that the firms Of ID. J. Mcdonald & Co.
and of L. Ii. Mcdaniel & Co., were separate
and distinct. +. II. Mcdaniel was mem.
her of both. The new firm consists Of E.
II. Mcdaniel and j. B. Mcdaniel: ID. J.
Mcdonald having no interest in it. =. II.
Mcdaniel had, after the dissolution of the
partnership, ID. j. Mcdonald assumed the
liabilities of that firm. On forming the
partnership of E. ii. Mcdaniel & Co. July
Is, 1873, an understanding was had between
the two members of the new firm, in &C.
coriance with which it made a partial pay.
ment on the note sned on, reducing it from
$735 81 to 1853 IS, the sum now claimed by
the plaintiffs herein. Two points are raised
by plaintiffs:
1. That E. Ii. McDaniel's interests in
either firm are liable for the payment of
their claim. and may be. and have been at.
tached.
2 That Messrs. Chaffe, Brother & Son
have no privilege on the cotton consigned
to them by f. H. Mcdaniel e. Co, a part of
the proceeds Of which have been attached
in these proceedings. The first proposition
is doubtless correct. "A creditor may OBJ
tain mandate Of seizure against all species
of property belonging to his debtor, real or
personal, whether it consists of credits OF
rights of action, and whether such property
be in the debtors possession or in that of
third persons, by whatever title the same
be held. either as deposit or placed under
their custody" sit may be attached IN the
hands of third persons by his creditor, in
order to secure the payment of a debt,
whatever may he its nature, whether the
amount be liquidated or not" etc. Z. r..
articles PAL, 2,2.
1t is not necessary to dwell on this point,
nor is it necessary to enumerate the exemp.
tions under OR laws. The fact that the
proceeds attached in this case are assets Of
the partnership can have Id material effect
upon the plaintiffs right. A creditor may
seize the interest Of partner in partner.
ship. and may sell it under seizure. Story
on Partnerships, sections S6l. 263 and au.
thOrities there cited, Rev. &. C., art. 1928;
9 H., 425; 3 An. 3l9.
3 John Chaffe, Brother & Son have no
privilege On tuS COlUoll bt1Zcu HUE AIS pro-
ceeds, because there ia no proof that it was
ever recorded. This proposition as rule is
sustained by c. C.. arts 1878 and 1874; Ma.
poleon Code, art. 2lO6; Paul Dupont, vol. !.
PIP :32 ct seq.
But while the factors, Chaffe, Brother
T. Son. may not have had any privi.
lege as such for advances. etc. for want
OF recording, did they not have prefer.
cnce on this partnership fund. they being
IF ina ;p1r
did. Article 1923. G. c.. declares that ''the
partnership property is liable to the cred.
itors Of the partnership in preference to
those OF the individual partner" and a
similar doctrine is held by Story. sec. 263
1.-The partnership property may be taken in
execution upon separate judgment and
execution against one partner; but the
sheriff can only seize and sell the interest and
right of the judgment partner therein, sub.
.ject to the prior rights and liens of the other
partners and the joint creditors therein" !
See, also, 9 r., 42j; 3 An. 3l9, l2 L., $40:
l3 L., 27g, and many other authorities. to |
the same effect, which think it useless to
cite. But it is intimated that the attach. !
ment proceeding gave Il preference to the !
plaintiffs, ana this appears to have some !
sanction by the decision in Tufts vs.. Casey. |
Is An. p. 253 Yet in P!assan vs. Titus. 20 !
An. 34j, it was announced that 1.-THE at. !
taching creditor ha. no privilege or prefer. /
ence over the property attached until he |
has obtained Judgment" The authorities. !
or rather the deciaiUns Of our courts, are no: |
consistent ON thi. point, and it would be |
difficult to harmonic them. In
Krkman IS. Hamilton, 9 NJ, e97, Judge
Matthews says: II, has already been deter.
mined by this cour.. in several cases. that
before the delivery of the property sold it !
is liable TO be seized by the creditors Of the |
vendor" The garnishee does not
pretend 70 an absolute and exclusive |
right Of property. as in . sale. His
pretensions do not extend to the tn.
tire exclusion Of The plaintiffs right to al.
tacil the tobacco, al would happen in She
case OF a vendee. 10 only insists on his
privilege and preference, as a possessor of
the property Of the defendants. who are in.
ebted to him; and on his just and equita.
Dle claim TO be secured for his acceptance.
Ii he claimed as q purchaser. and showed u
bona fde contract Of sale. made previous ts
the levy Of the attachment, the plaintiff
would fail entirely, for the garnishee was in
Of the property. "NOtwithstand.
nS this clear and evident distinction be
tween the claim Of vendee and that made
by the garnishec, in the present case. let lis
suppose that it may be somewhat different !
10 discern any sound reason why fair pur.
chaser, who has paid the price of the thing
bought, when the sale is unaccOmpanied by I
should be placed in worse situa.
lion than . factor who claims certain liens |
,n the property in his possession. To such
and doubt, If they really do exist.
t might be answered that in relation to