2 La. Ann. 763 | La. | 1847
The judgment of the court was pronounced by
The defendant having obtained an order of seizure and sale, was restrained by an injunction. Relief was properly granted as to a portion of the claim. A payment of $1005 had been made on account, and should have been credited.
Whether the payment of $1005 to Brownson, the original creditor and the assignor of Maskdl, was prematurely made, is a question which cannot be raised by .the defendant. He stands in the stead of Broionson, who having been paid in part, could not have an order of seizure and sale for the entire amount. M.askelVs responsibility, in his capacity of executor of Dough, to other parties for the amount paid to Brownson, is a subject not properly before us, and which cannot be blended with the consideration of his rights as the assignee of Brownson• Wo are of opinion, however, that the injunction was improperly perpetuated against the entire claim. For wliat is really due, the seizing .creditor Is entitled to proceed. See 17 La. 508. C. P. 743.
It is therefore decreed that the judgment of the courtbelow be reversed, and that the said Maskdl have leave to proceed in the execution of the order of seizure and sale for the amount of $1,684 82, with interest thereon at the rate of ten per centum per .annum from the 13th day of February, 1843, until paid, and costs of the .execution of said order of seizure and sale ; and that, as to the yesidu.e of the amount claimed by said Maskdl, the injunction be perpetuated ; the costs of this suit in the court bejow to be paid by said Maskdl, and those .of this appeal to be paid by tho appellee.