
    
      MORGAN, vs. FURST & AL.
    
    Appeal from the court of the first district.
    If property attached, be ve-leased on bond, they who give the bond cannot afterwards plead that the goods' sheriff had no right in the
   Martin, J.

delivered the opinion of the court The plaintiff" stales, that having levied an at-1 n tachment, as;sfaeri.ff, on a quantity of tobacco 1 J stems, the defendants obtained the release of it, on giving bond to hold it, or its pro- • , , . . - i ,. , ceeds, subject to the judgment ot the court; that the plaintiff in the attachment had judg-merit therefor, and the defendants refuse to deliver the tobacco, or proceeds.

In whatever himself, he is bound. pea¿sa ”anbNj

The answer denies the plaintiff’s legal or equitable interest in the tobacco, and consequently his right of action, and avers that the tobacco was the property of Reynolds, and before attached, was purchased from him by Furst, under an agreement that it should be shipped to Hamburg, cn ¡he joint account of Furst and Reynolds, m d that a part of it was already on board at the time of the attachment; that the amount of the hal|’ was $631, of which Furst has paid $306 for storage on the whole, at the request of the plaintiff in the attachment, who knew all this and agreed to the shipment; that by the last accounts the tobacco could not be sold at Hamburg for costs and charges.

There was judgment for the plaintiff, and the defendants appealed.

The statement of facts shows, that the parties agreed, on the tobacco being attached in the suit of Clark vs. Oddie, that on Furst giring bond, in the penally of $¡9.17, to abide the decree'of the court, the tobacco should {je delivered to him.

Oddie having failed, and Clark being appointed his syndic, the latter obtained a rule-on Furst, to show cause why he should not be ordered to pay the proceeds of the tobacco to him, for the benefit of the mass. The rule was, no cause being shown, made absolute for the payment of the penalty in the bond.

- The property attached was by the final decree of the court in the case of Clark vs. Oddie, decreed to be sold for the payment of the creditors, the intervening claimant (Reynolds) under whom the. present defendants5 claim, having withdrawn his claim.

Devanee, a witness for the defendants, deposed that he is Furst’s clerk, and heard a conversation between Furst and Reynolds, in which it was agreed that 180 hhds. tobacco stems should be shipped to Hamburgh for their joint account; that after shipping a part of the tobacco, the whole was attached by Clark as Oddie’s property, and afterwards Clark and Furst agreed the shipment should go on according to the agreement, and Furst should . , i <* i i i í- „ give bond tor tee tobacco at three-lourths of a cent per pound, and account for the proceeds to whoever should be deemed the owner; and accordingly Furst gave his bond for the value of the tobacco, rating it as above, .and deducting the storage. At the time of this agreement, the tobacco was in Reynolds’ possession, and was delivered to Furst to be shipped, and he was always willing to pay the difference between $631 and 300. He has not yet received an account of sales from Hamburg, and according to the last letters, the tobacco was still on hand. The witness.has access to Furst’s correspondence, and knows the situation of the tobacco.

On the cross examination, the witness declared he was present at a c onversation between Clark and Furst, the particulars of which he does not recollect. He derives his knowledge of the agreement he has stated from Furst; he recollects the former telling the latter not to buy the tobacco, as he, Clark, claimed it. This was after the agreement between Furst and Reynolds. The half of the tobacco at 'he rate specified, amounted to $631, and Fnrst paid $300 for storage on the whole, according to the agreement between Reynolds and Furst, the latter was to take one half of Abe tobacco at three fourths of á cent per pound, and advanced the value of the other half at the like rate, and accounting for the proceeds.

Reynolds, a witness, of the plaintiff, deposed, his agreement with Furst was substantially as stated .by the preceding witness. Furst after the shipment, offered to. take the whole tobacco on his account, paying for the second half at the same rate, as for the first, the money remaining in the sheriff’s hands, subject to the decision of the court. The witness consented to this, and it was accordingly so done.

On the cross examination, this witness declared he did not know Clark, in the agreement made with the defendant. The note given by witness to Spicer, for the tobacco, is still out and unpaid, and the witness has not. received any thing for the tobacco.

The counsel for the defendant, urges that the bond sued on, is not one given by the defendant in an attachment case, according to the statute. Martin's Digest—vide attachments,

, That the defendant had acquired .an interest in the property, before the attachment was laid o» it; the bond was therefore taken, i -i i- ™ , . . , on the understanding or the parties, that he should send the property to market, and account for the proceeds, as appears from the condition. To compel the defendant to pay the value, is to force a sale on him.

There is no proof of notice of the judgment to the defendant, neither was he required to bring the proceeds of the property into court.

The plaintiff’s counsel urges, that the objection to the form of action, was waived below by the pleadings, and cannot-avail here. Duchamp vs. Nicholson, vol. 2. 670.

That the agreement filed in Clark, and Oddie, shows notice to Furst of the decree, and puts him en demeure, if necessary, which is not the case, as the plaintiff now demands the value or amount of the' property, which is the exact amount of the penalty, fixed by the Court at $1200, but reduced by the agreement of the parties, to what Furst’s answer shows to be the real debt. Bryan vs. Cox. vol. 3, 575.

That on the merits the testimony of the first witness is of no weight, for he informs us he derives his knowledge from the defendant as hearsay; and Reynolds deposes the .latter took the property on his own account; it was worth $1262, he had paid $306 for storage, and the balance was $956; for which judment is prayed.

Straivbridge for the plaintiff, Hoffman for the defendants.

We think the defendant having given Ms bond to the sheriff, who delivered him the property attached, cannot urge that the plaintiff has neither legal nor equitable interest. The defendant has given him by his deed, a legal right, and the delivery of the goods raises an equity; in whatever mode a party binds himself, he is, by our law, bound.

The defendant cannot avail himself of any right on Reynolds, while he admits the latter withdrew his claim; neither can he urge property in himself, after having bound himself to hold the proceeds to the order of the court.

The proceedings in the case of Clark vs. Oddie, clearly show notice of the decree, and a demand on Furst

, The testimony of Reynolds, establishes Furst’s liability for a fixed sum; which he bound himself to pay.

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