
    Whann v. Hufty, Sheriff, et al.
    The right of a plaintiff in attachment to follow the property attached into the hands of third persons who have acquired rights from the owner after the attachment, depends on the reality of the Sheriff Ts possession under the attachment.
    The possession of the keeper appointed by the plaintiff is the possession of the Sheriff, but if the plaintiff in, the attachment is himself the keeper and suffers the property attached to be taken out of his possession and carried to a distant parish from his own residence, where it is sold without any steps having been taken to regain the possession, he cannot disturb the title of the purchaser.
    from the Second District Court of Now Orleans, Morgan, J.
    
    
      M. M. Cohen, for plaintiff and appellant.
    
      George L. Bright, for defendants.
   Buchanan, J.

Randall McGcmocle, one of the defendants, brought suit against James R. Christian, in the District Court of Iberville parish, by attachment, for money paid to and for the use of Christian's wife, who was the daughter of MaGamoole.

This suit was brought and the attachment levied on the 15th November, 1854, on a slave named Marry, as the property of the defendant Christian. The Sheriff’s return of the writ of attachment is “ Executed by seizing amd attaching," &c. It does not say, in so many words, that he had taken possession of this slave; but we may infer that he did so, because it is proved by a witness, introduced by Mo Gamocle, that the latter was in possession of the slave in November, 1854, as leeeper appointed by the Shm'iff. On the 2’Tth of April, 1855, judgment was entered up in the District Court of Iberville, (which was, however, only signed on the 14th February 1856,) in favor of MeCamoek against Christian, for the sum of .two hundred and seventy-five dollars and sixteen cents ; “ and that the slave attached be seized and sold to satisfy judgment and costs.” Some time in the interval between the rendition of the judgment and its signature, Mrs. Christian, daughter of defendant, MeCamoek, who was living at her father’s house, when the suit was instituted by him against her husband, came from thence to New Orleans to the house of Philo H. Coodwyn, accompanied by the slave Ma/i'y as a nurse. Philo H. Coodwyn was married to another daughter of defendont McCavoek. After staying some time with her sister, Mrs. Coodwyn, Mrs. Christian left to go to her husband, in the parish of Iberville, a reconciliation having taken place between herself and her husband, who, it should have been mentioned, was living in Tennessee when his father-in-law brought suit against him, but had returned to Louisiana pending that suit, in which he made a personal appearance and defence. The night before Mi's. Christian loft. Mr. Coodwyn!s house, the slave Mwry ran away, and told Coodwyn, when found, that she was willing to stay with any one who would purchase her in the city, but would not return to the country. Whereupon, at the instance of Coodwyn, negotiations were set on foot for the sale of the slave Mary, between Christian and the plaintiff, a resident of New Orleans, through Jamies M. Putnam, a merchant of New Orleans, and the holder of a mortgage upon the slave.

The slave Mwry was left in plaintiff’s possession, on trial, for a month previous to the day of sale. The proposed sale of the slave by Christian to plaintiff was a matter of notoriety in the family; and defendant MeCamoek was informed of it in a letter by Coodwyn. MeCamoek replied to this information, that he did not care what Christian did with the girl, but that, if he got judgment, he would seize her.

A power of attorney to sell the girl was sent at first by Christian to Coodwyn, but Coodwyn declined to act, knowing the difficulty that existed. Christian then made his special power of attorney to Putnam, of date the 26th July, 1855, under which the latter sold the slave Mary to plaintiff on the 30th July, 1855, for nine hundred dollars cash.

Putnam testifies that he was on the 30th July, the agent of defendant, MeCamoek, in this city; that up to the date of the sale, McCavoek did not inform him that he had a claim against this slave Ma/ry, which, as agent for Christian, the witness sold to Whann. Had witness known that there was a claim on the part of MeCamoek against Christian on the slave Ma/ry, he would not have passed the act. And Coodwyn states that Whann consulted him about the title before making the purchase; and admits that, although he knew of the attachment, he concealed if from Whann. After this sale Whcmn remained in possession of the slave Mary until the ?th March, 1856, when the Sheriff of the parish of Orleans seized her in his hands, under a fi. fa. directed to him from the District Court of Iberville, in the suit of McCavoek v. Christian, by the express written instructions of McCavoek. The plaintiff has injoined the sale.

Under the above state of facts, respecting which there is no contrariety of evidence whatever, the claim of MeCamoek to make the slave Mai'y liable in execution of his judgment, has as little foundation in law as in equity. There is no doubt that property claimed in a lawsuit cannot be alienated or incumbered pending the proceedings, to the prejudice of the plaintiff or claimant. See C. C. 2428, and the case of Gillespie v. Cammack, 3d Annual. But the right of plaintiff in attachment to follow the property attached into the hands of third persons, who have acquired rights from the owner after the attachment, depends upon the reality of the Sheriff’s pessossion under the attachment, see Goodrich v. Pattengill, 7 An. 664. And we take it also to be correct doctrine that the possession of the keeper appointed by the Sheriff is the possession of the Sheriff But when, as in the present case, that keeper is the plaintiff in attachment himself, who suffers the property attached to be taken out of his possession by the wife of the defendant into a parish distant from his own residence, and there to remain for months, while the defendant is openly, and to his perfect knowledge, offering it for sale, and finally sells it without the plaintiff in attachment interposing any obstruction or taking any steps to re-“ gain possession, as keeper, for the Sheriff, although he had ample opportunity to do so; the case is clearly within the rule of the Roman law quoted by Judge Story in paragraph 394 of his Commentaries on Equity Jurisprudence — “ creditor., qui permitUt rem venire, pignus dimittít.” See also paragraph 385 of the same work, and Marsh v. Smith, 5 Rob. 523.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that the injunction herein be perpetuated, the defendant and appellee, Randall McGamoch, to pay the costs of both courts.  