
    No. 2708.
    N. Bauer v. N. Antoine.
    "Where property has been attached and released on bond, and judgment has been rendered, the surety on the bond of release may show, on a rule to make him liable on tho bond, that the property attache*! did not belong to the original defendant at the date of the seizure.
    APPEAL from the Fifth Judicial District, parish of East Baton Rouge.
    
      Posey, J. A. S. Perron, for plaintiff and appellee. White & liobertson, for surety, appellant.
   Taliaferro, J.

The plaintiff, it seems, under a writ of attachment taken out against the defendant caused a seizure to be made on the eighteenth of September, 1867, of a stock of wines, liqu'ors and other personal properly, amounting-, by the sheriff’s inventory and appraisement, to $770 50.' Tlie defendant executed a bond of release according to tho provisions of article 259 of the Code of Practice, and gave, as sureties on tho bond, C. Quintero and James McVay, tho bond bearing date thirtieth September, 1867. ' On the eighteenth of July', 1868, the plaintiff obtained judgment on his claim against the defendant for $705 75, with interest and costs. On the twentieth of February, 1869, execution issued on this judgment, and was returned “no properly-found.” The plaintiff subsequently proceeded by rule against McVay, one of tho sureties, to show cause why he should not be condemned to pay the amount of the judgment which plaintiff had obtained against the defendant, Antoine.

Tho surety alleged for cause that the property attached byr plaintiff did not belong to tho defendant; on the contrary, that one Rickcrt., oí New Orleans, was the owner by a notarial act of sale dated the seventeenth of September, 1867, and who was the possessor thereof in good faith at the time of the seizure; that the plaintiff had knowledge of this act of salo, which, the respondent avers, was recorded on tho fifteenth of October, 1867.

On trial of tho rule, judgment was rendered against the surety-, and ho has appealed.

Before proceeding- to trial the defendant in rule moved to continue the case to procure witnesses by which he expected to prove that the ownership of tho property was not in the defendant at the time the seizure under the attachment was made. This motion was supported by tho usual affidavit. The court refused to grant the continuance, on tho ground that the testimony, if obtained, would be inadmissible, as the surety on tho bond could not be allowed to show that the property attached did not belong to the defendant. To this ruling of the court tho defendant in rule reserved a bill of exceptions, as he also did to a subsequent refusal by the court, on the same ground, to permit the defendant to introduce the notarial act of sale from Antoine to. Rickcrt.

We think there is error on the part cf tho court in declining to receive flic evidence tendered by the surety. In 2 R. R. page 512, Judge Morphy, as the organ of the court, said : “It has been frequently held, that tho giving of a bond is no waiver of a party’s right to show that the facts on which an attachment has been obtained aré unfounded, or that the property attached does not belong to the defendant.” This ■doctrine has been steadily maintained by subsequent decisions. 2 An. 154 ; 9 An. 3(31.

Wo think tho case should be remanded.

It is therefore ordered,- adjudged and decreed that tho judgment of the district court be annulled, avoided and- reversed. It is further ordered tliat this case be remanded, with instructions to the court to admit evidence on the part of the defendant in the rule, going to show, that the defendant in the original suit was not the owner of the property released by the bond at the time it ivas attached. It is-further ordered that the plaintiff and-appellee pay the costs of this appeal.  