Goodman v. Allen

6 La. Ann. 371

• Court: Supreme Court of Louisiana
• Decided: April 15, 1851
• Status: Published

Opinion

The judgment of the court was pronounced by

Slidell, J.

The plaintiffs in these suits having attached the steamer New ‘Hampshire, John Carroll brought suits to enjoin the proceedings against the vessel, which he alleged to be his property, and not the property of Allen and others, the defendants in attachment. The court ordered all the suits to be consolidated, aud directed the vessel to be restored to Carroll, on his giving bond in the sum of $3200, conditioned for the safe return of the vessel to abide the further orders of the court in the suits. A bond was accordingly given by Car•roll, with Greenwood as surety.

judgment was rendered in favor of the plaintiffs, with privilege on the property; which judgment, although it does not in express terms decide the claim of ownership asserted by Carroll,-may, for the purpose of our present inquiry, •be considered as a judgment against him upon that claim. A fieri facias was issued against the defendants in attachment, to wit, Wm. Allen, George T-Allen and Jacob Forsyth, and was returned nulla bona. The plaintiffs then took a rule upon Greenwood, the surety of Carroll, to show cause why he should not be condemned to pay the plaintiffs the amount of the bond. Various grounds of exception and defence were set up by the defendant in the rule; one of which was, that the rule was irregular and premature.. We understand the practice in case of bonds of this nature to be, that the creditor cannot ask judgment by rule against the surety, without a fi. fa. against, or, at least, a putting in default of the principal. No call, by fi. fa. or otherwise has heen made upon Carroll for the restoration of the vessel or the payment of the bond.

It is therefore decreed, that the judgment of'the district court be reversed, and that the rule.be dismissed as in case of non-suit; the plaintiffs paying costs in both courts.