1 La. 425 | La. | 1830
delivered the opinion of the court. This suit is by attachment, and brought on a protested bill of exchange which
The cause was one previous to the present appeal before this court. The judgment of the district court was then reversed, and the ease remanded to be tried de novo.
The evidence on which the last judgment has been rendered in the court below, is fully spread on the record, to the admissibility of which several bills of exceptions were taken. But before examining them, or the merits of the suit; it is necessary to dispose of the claims and pretensions of certain intervening parties, Otis Loomer and Co. and others. The first attachment levied on the property of the defendant, was that of the plaintiffs Gasquet and Co. Afterwards the same goods were seized at the instance of other creditors, under attachments issued subsequently to that of the plaintiffs. Finding that Gasquet and Co. had obtained a preference on the property of the defendant, by the priority of their attachment, the other creditors then intervened with the avowed purpose of defeat
js true, that in. cases of attachments, a contention and scuffle, for the property of the debtor, takes place among the attaching creditors, very similar to that which occurs in a concurso; but the rules by which these two species of judicial proceedings are governed, differ from each other. In relation to legal procedures against debtors not known to be insolvent, no sound distinction exists between su‘ts Prosecuted in the ordinary mode by c,tati°n? anc* those which are pursued by atiachment. We therefore conclude that
The first objection made on the part of the defendant, to the correctness of the proceedings which took place in the court below, is to the permission awarded to the plaintiffs to amend their petition. His counsel insists that this amendment was illegally permitted on two grounds. 1. That it changed the nature of the action. 2. That according to the Code of Practice amendments are not allowable until after issue joined. As to the first of these grounds it is wholly untenable. The suit was brought on a bill of exchange, and in declaring on it, a mistake was made as to ' the amount for which it had been' drawn. An amendment by which- this mistake is J rectified,- most clearly, produces ho; change* 4/1 ° in the nature of the action. The second ground of defence- assumed against the ad- .... 0 missibility of this amendment, appears so novel, that it might be well passed unnoticed, were it not for the indefinite manner in which the subject of amendment is treated by the.
The only bill of exceptions in the cause which requires examination, according to the
In the present instance, interrogatories were filed on the part of the defendant, and answered by the witness, and should it be admitted that the examination took place on a day different from that mentioned in the notice to the defendant, this cireum-stance ought not to prejudice the plaintiffs.
The notice was an act of mere superero-nation on the part of the commissioner, and ° . cannot do injury to those things which were legally done. But by a comparison of the date of the certificate, with that of the caption, it is probable that the latter was put down in error as being the twenty-fifth of the month, instead of the twenty-eight.
Admitting however the legality of the manner in which the commission was executed; it is contended that the testimony does not prove due notice of the dishonor of his bill was given to the drawer, the present defendant. The deposition or answers to the interrogators, seems to have
It is therefore ordered, adjudged and decreed, that the judgment of the court be affirmed with costs.