Kimball v. Plant , 14 La. 10 ( 1839 )

Rost, J.,

delivered the opinion of the court.

The plaintiff, being a citizen of the state of New-York, proceeded by attachment against the defendants, who were at the time a commercial firm established in that state.; a garnishee was cited, and credits to a sufficient amount to satisfy the claim, were attached in his hands, on the 28th of November, 1837.

Subsequently, the defendants came into court, by the counsel appointed to represent them, and for answer, said, that on the 16th November, 1837, they had in the city of New-York, and according to the laws there in force, made a general assignment, in trust, to Dennis Perkins and Robert T. Putnam, both of New-York city, for the benefit of all their creditors, without privilege or preference, and that the plaintiff was cognizant to the assignment, and a party to the proceedings therein, and could not, on that account, maintain his action : they, also, pleaded the general issue ; and before trial, the trustees intervened and resisted the plaintiff’s claim on the same grounds. The Parish Court gave judgment in favor of the plaintiff, for that part of his claim which was proved, and dismissed his action for the balance. The trustees appealed.

An assignment by a debtor in New-York of his property in trust, for the benefit of all his creditors,wherein credits in Louisiana are assigned, cannot defeat an attachment levied on those credits, by even a New-York creditor, before notice of the assignment to the garnishees. An assignment or transfer of debts, rights and claims takes place by delivery of the titles, but the trans-ferree is only possessed as respects third persons, after notice has been given of the transfer, to the debtor.

The claims of the plaintiff, not admitted in the court below, were based upon bills of exchange protested in New-York. The court refused to admit the protests, and notices of protests, in evidence, without proof of the signature and seal of the notary; and, as if we were of opinion that he erred, we would remand the whole case to be proceeded in, according to law. We consider the conditional application of the plaintiff to amend the judgment, as waived; and the only question which it is necessary to examine, is whether a voluntary assignment, made in New-York, by a commercial firm established there, and wherein credits in Louisiana are assigned, can defeat an attachment sued out by a New-York creditor, and executed upon those credits, before notice of the assignment had been given to the garnishee.

That question is settled by positive taw. Articles 2612 and 2613, of the Louisiana Code, provide, that in the transfer of debts, rights and claims to a third person, the delivery takes place between the parties by giving up the title, but that the transferee is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place.

It is not pretended that the debtor had notice of the assignment, when he was cited as a garnishee; nor is it shown that the plaintiff was cognizant to the assignment, and a party in the proceedings thereto, when process issued. The assignment, cannot, therefore, affect his rights.

The authorities taken from the common law states, and from England, cannol apply here'.. We have a fixed rule, which we all understand, and which we must obey. The judgment of the Parish Court is well founded in law, and must be affirmed.

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