
    
      BRADBURY AND FOSTER vs. GEORGE W. MORGAN. OGILVIE ET AL. INTERVENING.
    
    APPEAL FROM THE COURT OF THE FIRST DISTRICT.
    For the government of judicial proceedings in the United States courts within the limits of Louisiana, its laws directing the mode of practice in the courts of the state, passed prior to the 26th of May, 1824, must be looked to as the legitimate rules of practice in those of the United States, and not those rules of practice which may have been subsequently introduced by the legislative power of the state.
    The act ot the legislative council of the territory of Orleans, declaring that the personal property of a person against whom a fi.fa. shall have been directed, is bound by the delivery of the writ to the sheriff, was not changed until the adoption of the Code of Practice.
    The plaintiffs obtained judgment against Paxton & Co.’ in the court of the United States, on the 23d January, 1830, for $4709, which was signed on the 3d February following’ and on the same day ajl. fa. issued. In part satisfaction of said judgment, Paxton & Co. transferred to plaintiffs by no-torial act, a judgment in their favour in the parish court, for the parish of Orleans, against C. C. Hofner and brig General Morales, for the sum of $1455. The brig was sold by virtue of the last mentioned judgment, and the proceeds in the hands of the defendant (the Sheriff) was held by him subject t© a fi. fa. in his hands, which issued on a judgment obtained in the court of the first district by Ogilvie & Co. and Armstrong, against Paxton & Co.
    Eastern District,
    June 1831
    This suit was brought against the sheriff to recover the funds in his hands, accruing from the judgment obtained by Paxton & Co. against iofner, and assigned by them to the plaintiffs. Ogilvie & Co. arid Armstrong intervened and claimed in virtue of the fi. fa. in their favor in the hands of the sheriff. Notice of the assignment was given to the attorney in fact of Hofner, on the 24th March, 1830, and to the attorney in fact of the purchasers of the brig General Morales, whose notes for her price were held by the defendant, on the 16th April, 1830, and notice to the defendant on the same day-it being the day before the notes fell duç. The ft. fa. in favor of the intervenors was received by the sheriff on the 13th February, 1830, which was anterior to any notice of the transfer of the judgment from Paxton & Co to the Plaintiffs. There was judgment for the intervenors, and the plaintiffs appealed.
    Pierce, for appellants,
    made the following points.
    I~t. No execution could issue on the judgment obtained by intervenors, before notice of the judgment.-C. P. art. 624.
    2d. James Gourlay & Cp. or C. C. Ilofner, were the persons to whom plaintiffs were bound to give notice.. Ilof-ncr was the debtor, he owed the judgment to Paxton & Co.; notice was given to his agent here on the 24th March-at that time, and indeed at no time was any notice of interve-nors execution given to him-the debt due by him to Paxton & Co. was transferred to plaintiffs, and he notified before any seizure made known to him. Or say, James Gourlay & Co~ to be the debtors, (they having bought the vessel, Homer's property, that was sold to satisfy this judgment of Paxton & Co. vs. Hofuer); notice was given to them of the transfer to plaintifib, and no notice was given by the intervenors of their execution to them.
    The code is express, that the transferree is possessed as to third persons, after notice has been given to the debtor of the transfer having taken place: — the sheriff was not debtor.
    The 1i. fa. of plaintiffs was prior to intervenors and gave J J l i. O a lein. Hanna vs. His Creditors, 12th Martin, 66. Morgan was notified before the money came in his hands.
    
      Sterrett, contra.
    1st. The fi. fa. of the intervening party reached the hands of the sheriff before notice of the assignment. The fi. fa. bound all the personal property of Paxton on the receipt by the sheriff. Bainbridge vs. Clay, 4 N. 8. p. 56.
    2d. The fi. fa. did not operate a lein in the hands of the U. S. Marshal.
   Mathews, J.

delivered the opinion of the court.

This suit is against the sheriff, Morgan, to compel him to pay to the plaintiffs $1455, with interest and damages. They claim the principal sum, as belonging to them by assignment from Samuel Paxton & Co., and interest and damages on account of an illegal detention of it by the defendant. Ogilvie & Co. and Armstrong intervened, and claim this money as having been seized in the hands of the sheriff by an execution which issued on a judgment obtained against the assignors of the plaintiffs. The court below decreed, in favour of the intervening party, and the plaintiffs appealed-

The sheriff in this case is a mere stake-holder. The rights of the other parties depend on the facts as made out by them in a statement agreed; from which it appears, on the part of the plaintiffs, that they had obtained a judgment against Pax-ton & Co. in the District Court of the United States, on the 23d January, 1830, for $4709 91, which was signed by the judge on the 3d of February following; and that a fi. fa. is-ssued on the same day. On the 30th of January, Samuel Paxton, acting for his firm, assigned to the appellants a judgment which Paxton & Co. had previously obtained in the Parish Court of New-Orleans, against one Hofner and the brig General Morales. On this judgment the money now in dispute came into the hands of the sheriff. It does not appear that notice of the assigment was given to the debtors or their agents until the 24th of March, 1830, and the 16th of April of that year. On the part of the interveners, the statement of facts shews that they obtained judgment against Samuel Paxton & Co. in the District Court of the state, on the 19th of January, 1830, for $4827 15; that dfi.fa. issued on said judgment, which came into the hands of the sheriff on the 13th of February following; and that by virtue of this writ, all claims and rights belonging to Samuel Paxton & Co. were seized, previous to notice of the assignment made by them to the appellants, &c.

For the government of judicial proceedings in the U. States courts within the limits of Louisiana, its laws directing the mode of practice in the courts of the state, passed prior to the 26th of May 1824, must he looked to as the legitimate rules of practice in those of the TJ. States, and not those rules of practice which may have been subsequently introduced by the legislative power of the state.

The act of the legislative, council of the territory of Orleans declaring, that the personal property of a person against whom a fi.fa. shall have Wd “ 4 hveiy of the writ to the sheriff was . not changed untii the Code'of°Prac-tiec-

The only doubt as to the correctness of the judgment of the District Court, which can possibly be raised on these facts and the law applicable to the case, is based on the execution which issued from the District Court of the United States. By an act of congress, passed on the 26th of May, 1824, it is ordained that “the mode of proceeding in civil causes in the courts of the United States established in the state of Louisiana, shall be conformable to the laws directing the mode of practice in the District Courts of that state,” &c.

The legislation of the United States having been made in reference to the state law's in force at the time the act was passed, must be considered as embracing their provisions, and not those of state rules of practice which might be subsequently introduced by the legislative power of the state; consequently, for the government of judicial proceedings in the United States courts within the limits of Louisiana, its laws directing the mode of practice in the courts of the state, passed prior to the 26th of May, 1824, must be looked to as the legitimate rules of practice in those of the United States.

In the 14th section of the act of the legislative council of the territory of Orleans, regulating the practice of the superior court in civil cases, it is declared that the personal property of the person against whom a fieri facias shall be directed, shall be bound by the delivery of the writ to the she-rjff w]j0 was required to endorse thereon the day and hour ^ J on which he received it. It is believed that no change was made in this law by the state legislature until the adoption of Code of Practice, whieh took place subsequent to the act of congress of 1824.

Jf the facs were clearly established that the is. fa. which . • . , . r. - , __ • -, ~ , , issued irom the District Court of the United States reached ^le hands of the marshal prior to the 13th of February, 1830, perhaps it would give a lien and preference in favor of the appellants on the fund now in dispute. But there is no evidence shewing when it came into the possession of that officer, and we do not believe that any legal presumption fairly arises from the facts as stated, sufficient to destroy the rights of the appellees acquired under their execution, which was delivered to the sheriff on that day, and operated as a seizure of the money in his hands belonging to the defendants, Samuel Paxton & Co.

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