
    
      SMITH & AL. vs. ELLIOT & AL.
    
    East. District.
    June 1814
    An attachment cannot be quashed on an inquiry into the merits.
    This was a suit oft a note oí fatnd oí the &j fendants.,, in- which art attachment was obtained and executed on some property of theirs, On their the attachment was quashed and the suit dismissed.' *
    r_ To- the opinion of the Court, in this respect, the plaintiffs took a bill of exceptions which is fbllows. - ■
    Be it remembered that,, on this fourth day of May ⅛ the year 1814, the defendants, by their counsel,moved tothe Court dismiss the attachment issued in this case, and in support of the said motion, they proved by two witnesses the following facts to wit: that, at the time the note mentioned in the said plaintiffs’ petition, was signed by Elliot and Brazeal, they were copartners in trade,, residing and carrying on commerce at Gibson Pbrt in the Mississippi Territory -r that Elliot has ever since, and still does reside there, that Brazeal moved off with his family from Gibson Port, about one year since, and it is1 generally-reported and believed at Gibson Port, and it is believed by the said two vVitnesses that the said Brazeal then moved tcf the Parish of Natchitoches in ⅝ the State of Louisiana, and that he has. ever since and still does reside there and when he was so moving, he declared his intention to. settle Mraself at the Salt Works for Ae purpose of raanu-factoring salt. The defendants’ counsel further pro-disced in evidence its support of the said motion the note mentioned in the said plaintiffs’ petition opon Ais testimony Ae defendants, by their counsel,- insisted that the said attachmentought to be dismissed and dissolved : whereupon the plaintiff's hy their counsel required the opinion of the Court, fiipon t he question of law -whether upon this-testimony the said attachment ought to -be dismissed and dissolved ; and the said Court -did then -aid. there give their opinion, upon the said question of -law as follows to wit. »
    Coísís-iBERING Aat when parties residing -oat -:f Ae state taake application for Ae 'pr@tectknv.aiul benefit of our laws., they, cannet be allowed to take * only such part of them as may answer Aeir purpose, but that they are bound' to confer ns Aem-selves to Aeir whole iatatt and provisoes, and ½ this case especially to our Civil Code upon the extinction of obligations p. 288, ⅞⅛. 14.7.
    Thast Ae petition for attachment is founded ©a, a promissory note, to order, payable Nipón -demand; and that though the plaintiffs and Elliot^ ©ae of the defendants, live yet and carry on bush aess as they did at the time, in the same -place of the -Mississippi Territory where Ae said note was consented, and of course where payment ©f it was > t© be demanded, there ⅛ nevertheless, no legal mmior evidence that such previous 'demand kss been-made : that the debt .cannot be considered as . due before the demand specified in the promissory note, and therefore the attachment cannot reach it : that, from the whole, it might appear that it was made for the purpose of vexing and harrassing absent defendants, in making the tribunal of this state the subservient tools of the tricks, which the inhabitants of other states or territories would play upon each other 5 and in defeating thereby the rules and laws of a liberal and prosperous trade between them. Considering finally that the facts.on which the attachment in this case was founded were not truly stated since it appears by'testimoay that one of the defendants Brazeal .lives now and has continued to live in this state, for at least one year possessing considerable property. The Court, upon the whole, order and decree that the attachment jn this case shall be dissolved.
    And the said plaintiffs being dissatisfied with the said opinion of the Court upon the said question of law did then and there except to the same and pray that this their bill of exceptions be signed, and it is signed accordingly,
   By the Court.

This is an appeal from the decision of the Parish Court of the Parish ofN'ew-Qrleans, by which the Judge of that Court dismissed an attachment sued out agreeably to the provisions of an act of the Legislative Council of the late Territory of Orleans, regulating the practice of the Superior Court.

The dismissal took place after argument, on a rule to shew cause, \yhy the attachment should not be quashed. In the act above cited, there are two modes pointed out, by which, the defendant to an attachment may release the property attached : one by proving to the satisfaction of the Court or Judge, who issued such attachment, that the facts, on which the same was founded, were not truly stated: the other, by giving bond, to the sheriff with sufficient surety, to defend the suit and abide the judgment of the Court. It appears from the record sent up to this Court, and the opinion of the Judge, to which the plaintiffs in the Court below have excepted by their counsel, that the Judge has founded his decision on a belief, that the facts stated on the part of the appellants are not truly stated, or that they are not such as by law will authorise and support an attachment.

The reasoning of the Judge in support pf his decision (if in any situation of the cause it might be considered as sound and conclusive) would certainly have been more, properly applied in giving judgment on the merits, tljan on the motion of the defendants^ counsel to quash the attachment, nor do we consider the law cited by him more applicable to a decision on a motion of this nature,

The counsellor the appellees insists., that the dismissal oF an attachment is 'not such a- final decision as contemplated by the law organising the Supreme Court, from which an appeal may be takers. In cases where the defendant makes his appearance to'the . suit and answers regularly to the plaintiff’s petition, and the attachment should afterwards be dismissed for want of regularity or on account of proof to tire satisfaction of the Court that the facts on which it was founded were faisdy stated, perha'ps the decisions of dismissal would not authorise an appeal, because the cause might still go on to final judgment on its merits ; but this is by no means clear.

Wt are of opinion that situated, as the present ease ’ was before die Parish Court, the decision made fey the Judge of that Court must be considered so far final as to authorise an appeal from it; for the .appellants will otherwise be without redress, as they cannot regularly and safely proceed,farther ¿a the -Court below. Harper vs. Creditors, ante 322.

There can.be ¡to doubt of its being a general principle of Jaw (that partners are bound, jointly and severally* &y their partnership -contracts; and that they .tnay be sued all in the same action, or-separately--.

If citizens of a different state or territory are ¿Bowed the privilege of suing- their debtors in this state,, wild may have contracted obligations and who reside elsewhere in the usual course of proceedings, when-found within our jurisdictional limits, which we'believe cannot be contested, certainly no good reason can be aljedged, why they should not enjoy the benefit of extraordinary privileges, allowed to suitors, by laws, such as the one under which the present action is commenced.

The. appellees, as appears by the petition ahei affidavit annexed, reside without the limits of tlie state, so . that the ordinary process of the courts cannot reach them : a circumstance, which in the case a citizen of this stat.e would authorise an attachment against his property, and we are of opinion that the rule is applicable to persons in tfye situation of the appellants.

It is, therefore, ordered, adjudged and decreed that the judgment of the Parish Court be reversed and annulled and that the cause be there'placed in the same state and condition in which it was before the rendition of said judgment or decisroUi  