Emanuel v. Mann , 14 La. Ann. 53 ( 1859 )

Merrick, C. J.

Tho appellant’s counsel state the case as follows :

“ In this case the plaintiff sued out an attachment, when Beers & Bogart intervened and claimed the goods as vendors, having the right of stoppage in transitu, and bonded the goods soized, on which they were put in possession of the goods. On the trial of the case, the claim of the intervenors was dismissed, and subsequently a rule was taken on the surety on the bond of the intervenors, J. Wright, to show cause in ten days, why he should not pay the amount of the judgment, &c.; to which he replied, that the rule is premature, as there has never been an execution against his principal, and cites; as authority, Godman v. Allen et al., 8 An. 381.”

The defence to this action is purely technical. By intervening and bonding the property attached, the intervenors have relieved it from the lien of the attachment, and removed it from the jurisdiction of tho court. Now, if they can defend themselves on the bond, they will defeat plaintiffs’ claim altogether. In construing the obligation of Beers & Bogart, and Wright, their surety, we must look at tho law and ascertain on what condition the property was to be delivered to them. It was on condition that they would satisfy such judgment to the amount of the value of the property attached, as might be rendered against the defendant in the pending suit. Acts 1852, p. 155, sec. 1. The condition of the bond, as written, is that the defendants or intervenors shall satisfy such judgment as shall be rendered against them, or either, in the suit pending to the extent of the valuation of the property released. The principal obligation was, therefore, to satisfy whatever judgment should be rendered against the defendant, and it was the duty of the intervenors so to word their obligation, as the condition, on which the property was to be delivered them. They cannot, therefore, be heard to construe their obligation so as to defeat the law. Slocumb v. Robert, 16 La. 174 ; 7 An. 570.

Having failed in their intervention, they and their surety are responsible upon the bond. The return of nulla bona on the execution against the defendant, Mann, is sufficient, and the intervenors could not defeat plaintiff’s demand by paying the costs on the intervention or requiring an execution against themselves. The case cited in 8 An. 381, differs from the present in this, that no judgment had been rendered against the third opponent.

Judgment affirmed.