cure papers, to attend a motion in court, it is not necessary that the affidavit should state him to be duly certificated. If the fact be otherwise, it should be alleged on the other side. To justify the arrest of a party on the ground of deviation, it must clearly and distinctly appear that there was a substantial deviation.—Williams v. Webb, 5 Scott's New Rep., 898. (1843.)

ASSENT.

A party's assent will be presumed, who has received notice of an arrangement for his benefit.-Berly v. Taylor, 5 Hill, 577. (1844.)

ASSIGNMENT.

What passes to the assignee, in the assignment of a contract?

Nothing but what the assignor is legally entitled to by virtue of the contract. A mere gratuity does not pass to the assignee.-Munsell v. Lewis, 4 Hill, 635. (1843.)

One who takes by assignment, an unnegociable instrument, or a negociable instrument when it is past due, succeeds only to the rights of the assignor, and is affected by all the equities against him.-Moody v. Sitton, 2 North Carolina Rep., p. 382, (1843.)

Will an assignment under an insolvent or bankrupt act, pass any interest in a chose in action, which was before voluntarily assigned by the insolvent?

It will not; even when there has been no notice to the debtor or subsequent assignees.-Muir v. Schenck, 3 Hill, 228. (1843.) •

To what does an assignee of a chose in action take it subject?

To all equities existing against it at the time of the assignment, though he have no notice of such equity.-Miner v. Hoyt, 4 Hill, 193. (1843.)

Can the assignee of a personal contract sue for a breach of it in his own name?

He cannot, even though the assignment was made with the consent of the defendant; but to give such right there must be an express promise by the latter to be responsible to the assignee.-Jessel v. The Williamsburgh Insurance Company, 3 Hill, 88. (1843.)

ATTACHMENT AGAINST ABSENT AND ABSCONDING DEBTORS IN LA.

13

ATTACHMENT AGAINST ABSENT AND. ABSCONDING

DEBTORS IN LOUISIANA.

The formalities prescribed by Art. 254 of the Code of Practice, which requires where the defendant has no known place of residence, or conceals his person, or is absent, or resides out of the State, that the sheriff shall serve the attachment and citation, by affixing copies thereof to the door of the parish church of the place, or to that of the room where the court in which the suit is pending is held, stand in the place of citation, and form the basis on which all subsequent proceedings must rest, and their omission will be fatal. Service of citation on the defendant, is the first step to be taken.

The remedy by attachment is a harsh one, and those who resort to it must comply strictly with the requisites of the law.-Albigence WALDO PUTNAM V. THE PRESIDENT AND DIRECTORS OF THE GRAND GULF RAIL ROAD Banking COMPANY.-Robinson's La. R., vol. 3., p. 232. (1843.)

Appeal from the District Court of Madison, Curry, J.

Dunlap, for appellant.

Stacy, for the defendants.

MORPHY, J.-This is an appeal from a judgment dismissing pro ceedings instituted under our attachment laws. The suit was brought and an order granting an attachment obtained on the 4th of February, 1842; several persons were made garnishees, and regularly cited at different times. The sheriff annexed to the return he made on the 7th of February a list of the effects attached, but failed to serve the attachment and citation on the defendants, who are non-residents, by affixing copies of the same on the door of the parish church, or that of the room where the court in which the suit was pending is held. On the third of May following, the plaintiff took a judgment by default; whereupon the court on the same day, appointed an attorney at law to represent the absent defendants. The attorney moved for the dissolution of the attachment, on the ground that all the proceedings in the case were null and void, no legal citation having been served, as required by law. The judge, in our opinion, properly sustained the motion. We have repeat edly held that the formalities prescribed by article 254 of the Code of Practice, stand in place of a citation, and that they form the basis on which all the subsequent proceedings in the cause must rest; the omission of them must, therefore, be fatal.-Code of Prac., 206; 10 Mart., 472; 7 Mart., N. S., 160; 8 ib. N. S., 351; 8 La., 587; 2 ib, 18. A service was attempted to be made on the 6th of May, of the writ which was issued in February, long after it had been returned into the clerk's office, and after the motion to dismiss the proceedings had been made. This could not, in our opinion, cure the radical defect, which rendered null and void all that had been done in the suit, after the filing of the petition. The first step to be taken was to serve process of citation on the defendants, in

the manner required by law.-Code of Prac., art. 254, 256. As to the motion of plaintiff to annul the appointment of the attorney to represent the absent defendants, as prematurely made, we think that when the plaintiff had proceeded to take a judgment by default, it was high time that the former should have been provided with counsel, pursuant to article 260 of the Code of Practice. We are by no means disposed to relax any thing of the strictness and rigor with which we have heretofore construed our attachment laws. The remedy they provide is, in itself, a harsh and extraordinary one, and those who resort to it have no right to complain, if they are held to strict compliance with all the requirements of our statutes on the subject.

Judgment affirmed.

Will attachment lie against a non-resident if he is in the State at the time it is sued out?

It will. Bryans v. Dunseth, 1 N. S. 412. An attachment, though the domicil of the defendant were not within that jurisdiction, may legally issue against the property of an absconding debtor who leaves the State never to return, for debts that are due, against any property of his, within the jurisdiction of the court that issues it.

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Millauden v. Foucher, 8 L. R. 589. It will lie against a debtor who has obtained a respite, and who is suspected of an intention to remove his goods. Pecquet v. Golis, 1 N. S. 439. And it will lie in action for the value of books delivered to be bound, if they are not returned. Turner v. Collins, 1 N. S. 369. So, it will lie against the property of an absent partner on a suit against a gain established out of the State, although one of the partners may reside in the State. Smith, et al. v. Elliott, et al. 3 M. R. 370. And it will lie against a partner's share in the partnership property in a suit against him individually. Cucullu v. Munzenill, 4 N. S. 183. And it will lie in a suit against a carrier for failure to deliver the goods entrusted to him. So it will, in all cases of obligations arising from contracts, express or implied, for the payment of money or delivery of goods. Hunt v. Norris, et al. 4 M. R. 528. So, to where a debtor has failed and no order has issued to stay proceedings against him, the creditor may attach before a debt is due. Fisk v. Chandler, 7 M. R. 30.

The act of 1826 declares that in cases where the debt is not yet due, and the creditor swears his debtor is about to remove his property out of the State, before said debt becomes due, "an attachment may issue," Desha v. Golomans, 12 Louis. R. 272, but it does not apply to steamboats and vessels, which, from their nature, must necessarily be taken from their State in their regular business. Russell, et al. v. Wilson, 18 Louis R. 367.

Third persons who have funds and effects of the debtor in hand may be cited to answer upon interrogatories, and if the garnishee has funds of the debtor, the creditor, after judgment against the debtor, may pursue them by judgment and execution against the garnishee. Proseus v. Mason, 12 Louis. R. 16.

If the garnishee be a consignee of goods, and has made advances on em, he may claim a preference as a creditor of consignor, if the attachent be levied while the goods are in transitu, and before delivery to the signee. Wilson v. Smith, 12 Louis. R. 375. Gardiner v. Smith, 12 uis. R. 370.

The foreign attachment lies, though the creditor and debtor reside of the State. Flower v. Griffith, 12 Louis R. 345. 5 Miller 300. -son, et al v. Lansing, 10 L. R. 447.

Attachment lies in cases where the amount of damages is sworn to, 1 when such amount does not depend on a party's estimate of the ongs inflicted on his person, reputation or feelings. Cross v. Richard2 N. S. 323. Baune v. Thomassin, 6 N. S. 564.

But attachment will not lie against a party only te.nporarily absent m the State. Watson, et al. v. Pierpont, 7 M. R. 414. Nor in an ac, by one partner against another for his share of the partnership gains, ore any liquidation of the accounts, because the plaintiff cannot ear positively to the amount of the sum due to him. Levy v. Levy, et 11 L. R. 581. Nor will it lie against a non-resident executor. Dusv. Yerby, 1 N. S. 380 Nor to compel the delivery of a specific g. Hanna & Syndic v. Loring, 11 M. R. 276. Nor where the debt ot yet due and the debtor resides out of the State. McClintock, et al. Cairnes, 5 N. S. 452. Nor will it lie because the debtor conceals, self to avoid a criminal prosecution. Evans v. Saul & Wise, 8 N. S. .Nor in a suit by minors against their tutor who has left the State, y must have a curator ad hoc, named to defend him. Collins v. Patm, 3 L. R. 245. Nor will it lie at the suit of the endorsor of a note, yet due, and whose liability has not become absolute. Taylor v. Ene, 13 L. R. 64.

94.

With regard to the affidavit necessary to obtain an attachment, it will be cient if it be so clear, positive and certain, that it will support an indictt for perjury, if false. Cross v. Richardson, 2 N. S. 323. It will be cient, if an agent's affidavit state to the best of his knowledge. Hicks Duncan, 4 N. Y., 314. Bridges v. Williams, 1 N. S., 98, but affit by plaintiff's agent that debt is due, "as he believes," is not sufficient. gh v. Gayne, 7 N. S. 610. In the case of Barker v. Hunt, et. al., 1 M. The affidavit which was made by the deponent did not state self to be plaintiff's agent. And he did not appear to have any knowe of the claim, so the attachment was dissolved. An affidavit to obtain hment may be sworn to before the deputy clerk. Kirkman v. Wier, M. R. 126. In the case of Flour v. Griffith's Heirs, 12 L. R., 345, re the affidavit declared that a sum exceeding two thousand dollars due," the sum due was considered as stated with sufficient certainty to in the attachment for that amount. The affidavit to obtain an attach t for a debt not due, must be according to the act of 1826.-Crooke et Rutherford and Metcalf, 13 L. R., 479.

2

16

GARNISHEE, CREDITOR, SHERIFF, ETC.

With respect to the answers of the garnishee, the garnishee is required to answer interrogatories within the legal delay, or his neglect is to be considered as a confession of having funds of the defendant's in his hands; but this does not prohibit him from answering after the legal delay. Provided no steps are taken in the mean time to fix his responsibility. Still, no recovery can be had against the garnishee without obtaining judgment against the principal debtor.-Proseus v. Mason, et. al., 12 L. R. 16. Tes timony cannot be received to disprove the answer of the garnishee to interrogatories without giving them notice, and such notice must appear on the record. Allyn v. Wright, 9 M. R. 271. Rockwell, et. al. v. Smith, et. al., 1 L. R., 230. The service of the copy of the petition containing the interrogatories and citation are sufficient in the eye of the law, without an order of court directing it to compel the garnishee to answer interrogatories. —Parmley, et. al. v. Bradbury, 13L. R. 353. The appearance of garnishees by counsel on the day of trial is sufficient, it is not necessary their answers should be in writing. The extent of their liabilities to be tested by their answers to interrogatories, when the truth of those interrogatories has not been disproved.-Oakley v. Mississippi and Alabama R. R. Co.: 13 L. R Amendments to the answer of the garnishee to interrogatories can not be allowed. And if the answers are not full, direct, and positive, he is liable to the penalties affixed by law.-Deblane v. Webb, et. al., 5 L. R., 86. The sureties of a garnishee who was held to bail to answer, only bind themselves that he shall answer, not that he shall tell the truth. The condition of the bond is therefore complied with, when the garnishee appears and answers.-Laverty v. Anderson, 4 M. R. 607.

570

OTHER MATTERS IN RELATION TO THE GARNISHEE, CREDITOR, SHERIFF, &c.

The attaching creditor does not acquire greater rights against the garnishee than the defendant himself could possess, in an action against the garnishee. Oakley, et. al. v. Miss. and Alabama R. R. Co., 13 L. R.

570.

A decree that garnishee pay to plaintiff the funds of defendant, is tantamount to a judgment against garnishee. Hanna v. His Creditors, 12 M. R. 32. Garnishees cannot set up a demand in compensation against the defendant in the suit which does not take place by the mere operation of law. Blanchard v. Coles, et. al. 8 L. R. 159.

Until judgment is obtained against the principal debtor, no recovery can be had against the garnishee.-Proseus v. Mason, et. al. 12 L. Ř. 16. Nor can, till judgment final, against the debtor, the plaintiff in attachment obtain funds from a garnishee.-Caldwell v. Townsend, 5 N. S. 308.

A garnishee has no right to interfere in the merits of the case between plaintiff and defendant. Hanna & Lyndies v. Loring, 10 M. R. 508.

A defendant may plead that he has been condemned, as garnishee in another state to pay the debt claimed by plaintiff, and this defence will