1 Rob. 231 | La. | 1842
The plaintiffs are appellants from a judgment dismissing an attachment of the defendant’s property, and appellees from one discharging a rule which the defendant had obtained, calling on them to show cause why he should not he relieved from the arrest of his person. The attachment was obtained on the usual affidavit, that the defendant had ‘ departed from the State,, never to return;’ and the first judge has considered his return since, as conclusive evidence of his intention to return when he departed; at least he has presented it to us as such in his judgment, It is true that the defendant has shown that he has been at resident of the city for about five years, and carried on business as a merchant; that during that time he has been in the habit of absenting himself every year during the sickly season, leaving an agent, or clerk to attend to his business. We feel no hesitation in saying, that if no suspicious circumstances existed, we should concur in the opinion of the first judge in dissolving the attachment ; but the case of the defendant is that of a person charged w-ith having, with the aid of one of the tellers of the hank, ac~
On the first ground, the judge informs us that the allegations are attempted to he disproved by the late return of the defendant to this State, and his forbearance to avoid his arrest after he had notice that an order had been issued therefor. To this, he has in our opinion, very correctly given no weight, and has considered the allegations of the parties supported by the following circumstances, to wit: that it is not shown that the defendant has any business which will require his continued residence here, nor that he has any other property with him.- Lastly, the defendant’s counsel urged that the plaintiffs ought to have shown the insufficiency of the property attached to discharge the debt. He relies on the case of Ferguson v. Foster, 7 Martin N. S., 521. The District Court correctly concluded, under the authority of that case,that as the defendant had not put the plaintiffs upon the proof, by making the previous attachment of sufficient property, aground of
It is therefore ordered, that the judgment making the first rule absolute, he reversed, and that our judgment he, that the said rule he-dischaiged, and that the judgment discharging the second rule he affirmed-. The defendant paying -costs in both courts, on each of the rules.