
    
      WATSON & AL. vs. PIERPOINT.
    
    Appeal from the court of the parish and city of New-Orleans.
    The property of a merchant, who lias a store in the state, ttr.d is accidentally absent on a vcy* ag-e to the Unit cd States, cannot be attached, as that of á non-resident.
    The petition stated that the defendant was indebted to the plaintiffs on a promissory note, that he resided out of the state, but had property in it, whereupon process of attachment was obtained, on the affidavit of one of the plaintiffs, and levied on a quantity of dry goods in the hands of the defendant’s agents.
    A motion was made for a dissolution of the attachment, and witnesses were examined in open court.
    Noyes deposed that he knows the defendant, and came to New-Orleans in the same ship with him, on the 9th of November 1818. Tl^ defendant has carried on business, as a merchant, ever since that time, and has kept a store in Canal-street, where it is still kept, and left the city for New-lurk on the lOth of July, 1819, leaving ins store under the care of his boy, and . . , „ _ , , . . . having appointed W. It. Palmer his agent, with the avowed intention of proceeding to New-York on business, and returning in the fall, and it was so understood by his neighbors.
    W. ¡1. Palmer, having heard the above testimony, deposed he believes the facts to be true $ that he expects the defendant every day, and believes he would have been back before the present time, had he not been prevented by the sickness prevailing in New-York.
    The parish court dissolved the attachment, and on the appeal,
    
      Workman, for the plaintiffs,
    assigned for error, that the attachment was dissolved, although it appeared in evidence, as it does now appear on the record, that, when it was laid, and long after, the defendant was absent from the state.
   Mathews, J.

delivered the opinion of the court. This is a case in which the plaintiffs obtained an attachment against the property of the defendant, who was absent from the state. The attachment was afterwards dissolved, on the disproval of the facts by the latter, in conformity with the provisions of our attachment laws; whereupon the plaintiffs appealed.

In support of this action, in its present form» the appellants contend that any kind of absence. of the defendant from the jurisdictional limits of the state will authorise a proceeding by attachment against his property. They rely on the act of the territorial legislature, in 1807» w hich provides that 44 in all cases, when an attachment is prayed for, against a debtor, absent from the territory, the plaintiff shall, previous to bis obtaining the attachment, give bond, &c.” 1 Martin’s Digest, 518, n. 3.

Workma n for the plaintiffs, Morse, for the defendant.

This law must be taken and construed in conjunction with the o^ber acts on the «ame snb-jert. Tt seems to have heen intended for the benefit of the defendants, in cases of attachment, and does not enlarge the privilege granted to the creditor, in case of the absence of the debtor.

The kind of absence or rather non-residence, on which an attachment may be supported, is well defined in the act of 1805, § 11, Í Martin’s Digest, 51S, n. 1, and in our opinion does not embrace the present case.

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