Marr v. Lartigue

By the Court. Admitting that, as the counsel for the plaintiff contends the praetorium pignus gave to the plaintiff'a lien, which enabled him to repel the rest of the defendant's creditors; as this mode of relief, or the corresponding process, has originally come to us from the French or Spanish [99] law, it follows, if our statute provides only a mode of relief, leaving the effect of the process to be ascertained by the existing laws, as neither prenda nor the saisie-arret, entitled the plaintiff to the strong lien which is now claimed, the court must say that the property attached must be considered as part of the general fund, from which all the creditors are to be paid. Such was, however, the law at Rome. The praetorium prignus did not avail to the creditor, so as to enable him to exclude his co-creditors. Nec sibi quiquam adquirit cui praetor permittit: sed aliquid ex ordine facit, et ideo coeteris quo-que prodest. Dig. l. 42, tit. 5. l. 12, and in note 54. Uno crediturum misso, omnes alii creditores missi intelliguntur. By our act of assembly the goods aie not to be withheld from the defendant, till he gives security to pay the debt, but to defend suchs suit and abide the judgment of the court. Such a security, says Villadiego, is required in the tribunals of Spain, upon the praetorian prenda : fianzas de estar in de-recho et judicatum solvi, In the present case, had the defendant relieved himself from the seizure, he would have given security to defend the suit and abide the judgment of the court. Coulti the penalty of the bond have been recovered, when afterwards, and before [100] judgment, the proceeding were staid, so that no judgment could be obtained and the debt became by law, or the consent of the necessity of the creditors, reduced in its amount, and payable out of a certain fund only? Attachment dissolved.