
    HAWLEY vs. TARBE ET UX.
    Eastern Dist.
    
      May, 1839.
    APTEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS.
    The article two hundred and seventy-six of the Code of Practice, presupposes that the affidavit in a case of sequestration, is to he made by the plaintiff; and when he is present, and no proper cause assigned to prevent him, the affidavit of the agent will not be sufficient.
    This is an action to recover from Tarbe and wife, the sum of three hundred and twenty-five dollars on a boarding account.
    B. R. Lyon, agent of the plaintiff, made affidavit, that the debt was due, and a writ of sequestration issued.
    The defendant’s counsel took a rule, for the plaintiff to show cause why the sequestration should not be set aside, as having wrongfully issued on the affidavit of the agent, when the plaintiff, who was present, residing in the place, should have made it.
    2. That the plaintiff has no privilege on the property sequestered, inasmuch as the defendants reside and are domiciled in the place where they are sued.
    On hearing the parties the rule was made absolute, and the sequestration set aside. The plaintiff appealed.
    
      I. W. Smith, for the plaintiff and appellant.
    
      F. B. Conrad, contra.
   Eustis, J.,

delivered the opinion of the court.

In this case a sequestration was obtained at the instance of the plaintiff, on the affidavit of a person styling himself her agent. It is admitted, that at the time the affidavit was made the plaintiff was present in the city, and not prevented by sickness or other physical cause, from making the affidavit herself. The article two hundred and seventy-six of the Code of Practice, pre-supposes that the affidavit in a case of sequestration is to be made by the plaintiff.

The article 276 of the Code of Practice, •presupposes that the affidavit in a case of sequestration is to be made by the plaintiff; and when he is present, and no proper cause assigned to prevent him, the affidavit of the agent will not be sufficient.

Where the plaintiff is present, and no proper cause is assigned for his not making the affidavit, the oath of his agent is, in our opinion, not sufficient to authorise the issuing of a writ of sequestration.

It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be affirmed, with costs.  