16 La. Ann. 78 | La. | 1861
This is a suit against the security on a forthcoming bond given by the defendants in attachment.
The defense to the suit is, that there was’ no attachment of the property-bonded.
In the suit of Price, Converse & Co. v. Merritt, Risley & Co., there were two writs of attachment. Under the first, 2047 barrels of flour were seized. They were bonded by plaintiffs, who sold them.
This attachment was dissolved by the District Court, and that judgment affirmed on appeal at the December term 1858. 13 An. 526. The cause was remanded for further proceedings. Prior to the appeal, on a supplemental petition filed, with bond and affidavit, another writ of attachment had issued. (See opinion of this Court in 13th An., page 527.) The return of the Sheriff on this second writ, (dated February 27 1858) was, that he had made general seizures in
This is clearly a forthcoming bond under article 259 of the Code of Practice.
The answer of defendants alleges that the bond has been annulled by the judgment of the Supreme Oourt, reported in 13th Annual. But this is evidently a mistake. That judgment dissolved the first attachment issued in the cause, but did not affect the second writ of attachment. And the Sheriff’s seizure recited in the bond must have been made under the second writ of attachment, which has never been set aside, nor any motion made to that effect.
But it is contended, on behalf of defendants, that this fund was not in the Sheriff’s hands as seized under an attachment at all: — that it was a mere deposit by order of Oourt, and for the benefit of the defendants in the original suit.
This defense does not lie in the mouths of the signers of the bond. They cannot be allowed to gainsay the recitals of their bond, after their liability has been fixed by the judgment and return of execution against their principals. See the eases, lately reported, of Wright v. Oakey, Hawkins & Co., and Mrs. White v. Hawkins et al.
Judgment affirmed, with costs.