| La. | May 15, 1848
The judgment of the court was pronounced by
Five attachments were issued at the suit of different creditors, .and were all served on the same day, but at different hours, upon funds of the defendants in the bands of Winston, a garnishee. The attachment issued by the plaintiffs, Tufts ¿j- Hobart, was the last served; that of the appellees, Wills, Wingfield 8f Co., the first served. Tufts Sf Hobart obtained the first judgment, and issued a fieri facias, in virtue of which the funds attached were levied upon. The garnishee declined paying over the money in his hands to the sheriff, on the ground that it had been seized under attachments in four other suits. Tufts Sf Hobart thereupon took a rule upon the plaintiffs in the four other attachment suits, to show cause why the former should not be first paid out of the funds in the hands of the garnishee. The district judge determined that the creditors acquired privileges in virtue of their attachments, and were to be paid by preference in the order in which their several attachments were levied, and the plaintiffs have appealed.
In relation to the facts there is no controversy. It is admitted that the attachment of the appellees was made an hour prior to that of the plaintiffs. The .latter contend that our law creates no privilege in favor of the attaching creditor, but in express terms invests the creditor with a privilege on the property seized under a fieri fiadas ; and that they acquired this privilege in virtue
1. It is true that the term privilege does hot occur in the 264th and 265th articles of the Code of Practice relied on by the appellees; nor was the use of that term indispensable in establishing a privilege. A lawful cause of preferrenceis declared, which is equivalent to the use of the technical term. C. C. 3151. This interpretation was given to those articles in the case of Emerson v. Fox et al., 3 La. 178" court="La." date_filed="1831-10-15" href="https://app.midpage.ai/document/emerson-v-fox-7157610?utm_source=webapp" opinion_id="7157610">3 La. 178; and we think that it is supported, as well by the letter of the law, as by the reasons upon which the right is founded.
We are notaware that the question of priority established between seizures, either under attachments or writs of fieri facias, when made at different hours of the same day, has hitherto been presented to the court of the last resort in this State. We think that the question admits of but little doubt. The 723d article of the Code of Practice provides that, “when several successive seizures are made of the same property, the creditors making them are entitled toa preferenceoverother ordinary creditors accordingto the order of theirseizures.” Seizures made on the same day are not excepted from the operation of the rule. The order of the seizures determines the right of priority. The conservatory measure of attachment being given with express reference to a future judgment and an execution thereon, is necessarily governed by the s ame-rule The seizure under the execution relates back to the date of the attachment, and gives effect to the lien from that time.
It has been repeatedly held that, the general rule that the law admits of no fractions of a day, is amere legal fiction; that it is subject to numerous exceptions; and that, whenever it becomes necessary to determine who of several persons has a priority of right, time may be distinguished with accuracy. In the case of Callihan v. Hallowell, 2 Bags. S. C. Rep. p. 9, the court said that: “ Time is in its nature essentially divisible from years down to hours and minutes; a minute therefore will give priority as essentially in point of time, as a year or a day.” The court, in its opinion, refers to the case of Combe v. Pitt, 3 Burr. Rep. 1423, 1434, in which Lord Mansfield said: “But though the law does not in general allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish. And I do not see why the very hour may not be so too, when it is necessary, and can be done; for it is not like a mathemalical point, which cannot be divided.” See also Simon v. Stalls, 1 Wendell's Rep. p. 593. 11 Johnson’s Rep. 229, Opinion of Mr. Justice Story in The Matter of Joseph Richardson et al, Law Reporter, vol. 6, p. 397. In no class of cases have the subdivisions of the- day been- more frequently recognized than in the conflicting rights growing out of the institution of judicial proceedings, and the execution of writs, from which preferences result. There are cases in which our laws expressly forbid the different hours of the same day from being recognized, as affectiDg.the rights of parties, as in the instance of the inscription of mortgages; but the prohibition must be confined to the cases enumerated, and must be considered as an admission that the rule would be otherwise in the absence of an express enactment.
Judgment affirmed.