
    Robert Loughery v. M. Crooks.
    Where the defendant, after being arrested for debt, has given bail and absconds from the State before the service of the petition and citation, the plaintiff may proceed with the suit by having a curator ad hoc appointed, upon whom service of petition and citation can be made.
    APPEAL from the Second District Court of New Orleans. Lea, J.
    
      J. Dunlap, for plaintiff,
    contended : The only ground taken for defence in the district court and in this court, is the exception for want of citation, and to the capacity of the curator ad hoc to defend the suit. The case of Zacharie v. Blandin, 4 L. R. 83, is cited, as in point. The opinion of the district judge, placing cases of attachment and arrest on the same footing, is a sensible and just construction of the law.
    In Blandin’s case, it is true, citation was served (without petition) before he absconded. But it has been often decided, that citation is bad, unless accompanied by petition. For the citation requires defendant to comply with the demand contained in accompanying petition. So that there is really no distinction between this case and that of Blandin. But the court had such jurisdiction by the arrest, as to bring the case under the articles of the codes providing for curators ad hoc to persons against whom suits are instituted. A suit may be well said to be instituted when defendant is in court under a writ of arrest, which writ notifies him that the plaintiff demands of him a specified debt. It amounts to a judicial demand ; to citation itself. A writ of arrest specifies the debt claimed; citation does not. This appeal is evidently for the benefit of Pardo, the bail, with whom defendant had deposited funds to pay the plaintiff’s claim.
    
      Grandmont, on the same side.
    
      T. L. Bayne, for the defendant,
    contended: The party sought to be made defendant in this cause is arrested as a debtor. He gives bond as the law directs, conditioned that if he should depart the State without leave, his securily shall pay to the sheriff the amount for which definitive judgment shall be rendered in the cause. Upon furnishing this bond he is released. No service of petition or citation is made upon him. The plaintiff provoked the appointment of a curator ad hoc, and has the petition and citation served upon him. The curator excepts to the jurisdiction, on the ground that the debtor is not legally before the court.
    There are but two modes of obtaining jurisdiction; by process in personam, and in rem. In a personal action, the person is reached only by a service of petition and citation personally or at the domicil. In this case no such service has been made.
    In an action in rem, jurisdiction vests through the property seized. The debtor is reached through his property, and the power of the court is complete.. Can the bond filed in this suit be assimilated to property. Is it such a representative of the property of the debtor as to give the court jurisdiction in rem ? The bond, on its face, professes to represent nothing until judgment is obtained. Definitive judgment against the debtor is made a condition precedent. No objection arises on the part of the security until such judgment has been rendered. Of what value then is this bond as a basis of jurisdiction or of judgment? a bond which represents neither the person nor the property of the debtor. The court have decided, in the case of Shultz v. Bis Creditors, 8 L. R. 172, that a debtor arrested and released on bond, is neither in the custody of the court, or of his bail. Under such circumstances, a legal service of petition and citation cannot be made upon an appointee.of the court, or upon the bail. Wall v. Wilson, 2 L. R. 170.
    Even if this bond can be in any manner assimilated to an attachment bond, the record shows no such service of petition and citation as would form a basis for judgment. Article 254 C. P. points out the formalities that stand in the place of citation; and these form the basis upon which all subsequent proceedings rest. The omission of them is fatal. C. P.206. 3 L. R. 18. 12 R. R. 461.
    In some of the earlier cases, especially in the case of George v. Fitzgerald, 12 L. R. 606, the court intimated that a curator might be appointed for a person of another State, who had neither agent, residence, nor property in Louisiana; and that service of petition and citation upon such curator would bring the party into court. This alarming doctrine we understand the present court to have distinctly overruled; and after reviewing the whole question, the law on this point has been clearly enunciated in Dupuy v. Hunt, 2d Ann. 564. The court there restricts the power of appointing curators ad hoc to cases in which the absentee leaves his property without an administrator or agent, or in which it is attached at the suit of a creditor, or in which an absentee becomes a necessary party to a suit between other parties lawfully before the court! This doctrine is reiterated in Peterson v. McRae, 3d Ann. 101. Jacobs et als■ v. Sartorius. And in the latter case the court repeats the principle that pervades all the decisions, that the service of the writ of arrest does not dispense with the necessity of service of petition and citation.
   The judgment of the court was pronounced by

Preston, J.

On the affidavit of the plaintiff, that the defendant was about to depart permanently from the State, he was arrested and gave bond and security not to depart from the State of Louisiana, as required by law. A petition was filed, and a copy with citation issued according to law, but could not be served because the defendant had left the State.

A curator ad hoe was appointed to him to defend the suit, upon whom the petition and citation was served. He excepted, that the defendant was not before the court by the service of the petition and citation, as required by law. The court overruled the exception; judgment was rendered against the defendant, and the curator ad hoc has appealed, and assigns the ground taken in the exception for error.

The fourth section of an act approved the 25th of March, 1828, provides that, in cáses where arrests are demandable upon the plaintiff filing the proper-affidavit in the court, it shall be the duty of the clerk to issue forthwith the process required without any petition being then presented ; but the usual petition shall be filed on the day succeeding that on which the said process shall have issued. And the sheriff shall immediately proceed to execute the process.

The plaintiff complied with this law, and the sheriff executed the process. The defendant was arrested and gave bond not to depart from the State, but did immediately depart. Could he defeat the remedial effect of the law by this breach of his bond? We think not. Under this law the suit was commenced, and he was made a party by his arrest. Having absented himself, it was proper, under articles 191 and 195 of the Code of Practice, to appoint a curator ad hoc to defend him in the suit, and to have the petition and citation served upon the curator. The ease does not differ substantially from that of Zacharie against Blandin, 4 L. R. 155. For the defendant in that case having absented himself before service of the petition, it was held that the service of the petition and citation on a curator ad hoc was sufficient.

It cannot be denied, that the late Supreme Court of the State decided, in the ease of Wall v. Wilson, 2 L. R. 171, and in the case of Slocomb et als. v. Bowie et als., 13 L. R. 10, that the defendant might defeat the suit by departing from the State, in violation of his bond, before the service of the petition and citation upon him. They considered the personal service of citation and petition on the defendant indispensable to further proceedings, because citation is the basis of the suit, and a judgment is void which is not preceded by its service. This reasoning is unsatisfactory. The legislative authority which established the principle invoked, has, by the act of 1828, made the arrest of the debtor the commencement of the suit and basis of the proceedings; and the articles of the Code of Practice we have.quoted, provide a reasonable mode of citation.and service of the petition if the defendant absents himself.

If it were otherwise, the legal exercise of the remedy given by the act of 1828 would be the very means of defeating its efficacy, and the defendant would be enabled to defeat the very object of the act by entering into an obligation not to do so. We cannot so construe a remedial statute, which should be effectual when the plaintiff complies with its requisitions, or countenance the evasion of a law by violating a solemn obligation not to evade it.

The judgment of the district court is affirmed, with costs.  