Tyson v. Lansing

Martin, J., delivered the opinion of the court. .The plaintiffs are appellants from a judgment setting aside an attachment, which they had obtained against the defendant, whom they allege resides out of the state, and who intended to remove his property out of the same, before the maturity of a note which he had given to them. The defendant moved to have the attachment set aside, on the following grounds : First. The affidavit shows that neither of the parties is a resident of the state, and that the debt is not due. Second. That the defendant is domiciliated in the parish of St. Martin, in this state, and has valuable real property therein. Third. And that he is not suable in any other parish than that of his domicil. , It is no ground °sfsu°ngeetann at-defendant reside fortife oath may taken by ari agent of the piaimiff, and ab-statedo/tííe dely'^nhorSeTan attachment, oty^Tto^the issuing an attachment before the debt is due, prjyjdee¿?or under the act of The plaintiff in an attachment suit, may give a new bond and substitute a new surety, in order to make the first one a witness on the trial, when no liability has accrued under the fiwst bond. The act of 1826 provides, that when- the debt is not due, an attachment may issue on the affidavit of the creditor, of the existence of the debt, and of either of the circumstances mentioned in the first, second and third numbers of the article 240, of the Code of Practice. The first circumstance is, that the debtor is about permanently to leave the state, or has left it, never again to return, without the possibility of obtaining or executing a judgment against him ; the second is, that he resides out of the state; and the third is, that he conceals himself to avoid being cited and forced to answer to the suit intended to be ° brought against him. I. It is clear that.it is no good ground of objection, that both parties reside out of the state, for the law expressly provides that the oath may be made by an agent when the plaintiff is absent, arid the residence of the defendant out of the state, is stated as a circumstance authorizing an attach- , , 7 y. _ . , , 7. • ¶ ment to issue. Code oj Practice, article 244. Neither can it be objected under the act of 1826, that the debt is not yet due. II. The testimony shows that the defendant was at St. Augustine, in Texas, and had a store there about the time of issuing the attachment, and that he had a family residing at Newtown, in the parish of St. Martin ; also a house and lot, and slaves, together with other property there, and in other parts of the state. The plaintiff asked leave to substitute another bond for that on which he 'had obtained the attachment, with the view to render the surety in the first bond a competent witness for him. This was objected to on the ground that a liability might have already accrued, and the surety could not be relieved from it without the consent of the defendant. The objection was sustained, and the plaintiff’s counsel took his bill of exceptions. It appears to us the District Court erred. It has been the practice of this court to allow the substitution of a new bond, when one of the obligors is wanted as a witness. This has, however, never been done when a liability had already accrued. If this was shown to be the case in the present [448] instance, it would be proper to consider whether this circumstance ought to prevent the substitution. But it is not shown, nor is it urged, that any liability has accrued. Where the plaintiffhas been improperly deprived of a witness to support the allegations in his petition and to rebut the testimony of the defendant, the cause -will be remanded. As the plaintiffhas been improperly prevented from availing himself of the testimony of his bondman, in order to support the allegations of his petition, and to rebut the testimony offered by the defendant, in support of the second ground of his motion to set aside the attachment, it is our duty to afford him the opportunity of doing so. III. The conclusion to which we have come on the second, renders it unnecessary to examine the third ground, upon which the motion to set aside the attachment is founded. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed, and the case remanded, with directions to the district judge to allow the plaintiffs to substitute a new'bond for the former one; the appellee paying the costs of the appeal.