Pope v. Hunter , 13 La. 306 ( 1839 )

Martin, J.,

delivered the opinion of the court.

This is an attachment suit, and the plaintiff is appellant from the judgment which dismisses it. The attachment was obtained on an affidavit that the sum due was twenty-three hundred and fifty dollars, besides interest, damages, &c. The penalty of the bond is thirty-six hundred dollars. On the day following that on which the attachment, was obtained, the petition was filed, in which the plaintiff’s demand is stated to be twenty-three hundred and fifty dollars, with interest from protest, and four dollars costs of protest, and damages at the rate of ten per cent.

Where an attaching creditor swears that the sum of twenty-threehundred and fifty dollars, besides interest, damages, is due and owing to him, he will he required only to give bond for an amount exceeding by one half the principal sum due, disregarding the interest and damages as too indefinite.

A rule liad been taken on the plaintiff, to show cause why the attachment should not be dismissed, on account of the insufficiency of the bond ; the plaintiff offered to amend his petition, by reducing his claim to one third of the penalty, or to give a new bond, with the same surety, for the difference between the penalty of the first bond, and a sum exceeding by one half the amount of his claim. This was refused, the rule made absolute, and he appealed.

It appears to us the court erred. The Code of Practice requires the attachment bond to be for a sum exceeding by one half that which is claimed. The bond was taken for a sum exceeding by one half that which was stated in the affidavit to be due. The words interest, damages, &c., being indefinite, must be disregarded, because neither the rate of interest, nor the time from which it runs, are stated. The same may be said of the costs, which, however, are covered by an excess of seventy-five dollars in the sum for which the bond was given, over thirty-five hundred and twenty-five dollars,'which is the sum exceeding by one half that sworn to. The bond, therefore, at the time it was given, was sufficient. It is true, that on the next day the petition was filed, in which a larger sum than the one sworn to is claimed. The increase results from an allegation of damages, and a fixation of the rate of interest, and the period from which it began to run.

The law authorizes a plaintiff to obtain an attachment, before he files a petition, for a sum which he swears to be due, provided he gives a bond for a sum exceeding by one half that to which he has sworn. After he has exercised that right, he is to file his petition, and whatever may be the consequence of his claiming a larger sum than that sworn to, this circumstance does not invalidate the attachment. It is now unnecessary for us to say, whether, in such a case, he is estopped from claiming more than the sum sworn to, or whether he may or may not amend his petition.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed, and that the rule obtained by the defendant on the plaintiff be discharged, with costs in both courts.