
    
      ROWLETT vs. SHEPHERD.
    
    The notice in the 735th and 736th articles of the Code of Practice, is that which the Sheriff is to give to the defendant, before seizure.
    Appeal from the court of the first district.
   Martin, J.

delivered the opinion ofthe court. The plaintiff appealed from an order for setting aside a writ of seizure and sale.

The counsel for the defendant and appel-lee urges; that the writ was properly set askjft ° ' 1 r —because,

The act of isas has repealed those parts of the former laws ne e to prove the consideration of assignment tainedawrit_ of seizure.

The rity of a swom attor ney is always

Sustprecede the only'n’o-brforeqUpayd-forced by a ure, by an as-signee.

That part of the old code, which required the olTh before a issued,^repealed.

• • 1. Issued without any previous notice to , ^ , the defendant.

% The plaintiff was an assignee, and had 1 ° n0 rjor|jt to the writ, as he did not prove he had © 7 r any consideration to the assignor.

3. The authority of the plaintiff’s agent , was i not shown.

4. No notice of the assignment had beeti to the debton

5. The oath was not taken by the party, ^ut % his agent

On the first point, the Code of Practice, 735 and 736 is relied on. We think the notice there spoken of,is that which the sheriff is to give before a seizure. For the eode requires, that besides the ordinary delay, the defendant should have further time, in propor- ’ r r t]on to the distance of the residence of the Judge to whom the petition is presented,

II. On the second, the counsel relies on Nichols vs. De Ende, vol. 3, 310. Wray vs. King, 10 Martin 220. Cur. Phil. Executante, n. 18.

In the first case, we held that when the ídaiátiffis not the defendant’s original ^ ° itor, he must produce authentic evidence of his own title to the debt; and on the other, that a writ of seizure ahd sale could not issue in favour of ah indorser on parol proof of the indorsement. The Cutio, Philipiea, indeed, requires that the plaintiff, before he obtains the 'writ, should prove the amount he paid to the assignor, in some other manner than the confession of the assignor. This we take to be á rule of practice which is now repealed by the act of 1828.

III. The same book requires the Judge, before he grants a writ of seizure and sale, to consider si la execucion se pide, en virtud de poder del acreedor. Pedimiento, n. 13. In the present case the petition is signed by a sworn attorney, who,till the contrary be proved, is always presumed not to act without being employed. Hayes vs. Cuny, 9 Martin, 87.

IV. The notice required by the Civil Code 613 to the debtor, of the assignment of the debt, has for its object, to prevent his paying it to the assignor, or the creditors of the latter from seizing it. The demand which must precede the seizure is the only notice required before enforcing payment by the assignee.

Grymes for plaintiff—Slidell for defendant.

y That part of the Civil Code 3361, which reqU¡re<j an 0⅞⅛ from the plaintiff is repealed by the Code of Practice 734, which provides that he may obtain a writ of seizure and sale on a simple petition.

We think the writ in the present case ought not to have been set aside.

It is therefore ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, the writ of seizure and sale reinstated, and the case remanded for further proceedings according to law, the appellee paying costs in both courts.  