Tallamon & Dessommes v. Cardenas , 14 La. Ann. 509 ( 1859 )

Yoorhies, J.

The question presented for adjudication in this case is, whether a non-resident debtor residing in a foreign country, can bo arrested under the provisions of the Article 212 of the Code of Practice, as amended by the Acts of 1840 and 184V, when about leaving this State permanently. There would be no difficulty in this matter, were it not for the 3d section of the Act of 1855, (p. 42), which reads : “ that no non-resident shall be arrested in this State, at the suit of a resident or non-resident creditor, except in cases where it shall be made to appear by the oath of the creditor that the debtor has absconded from bis residence.”

This Act, of which the above is one of the sections, is entitled An Act relative to persons arrested and imprisoned for debt; and, in its last section, repeals “ all laws or parts of laws conflicting with the provisions of this Act, and all laws on the same subject-matter except what is contained in the Civil Code and Code of Practice.” Sec. 9. Tho provisions of the Act of 1840 and 184V, which relate to the subject-matter under consideration, are consequently repealed notwithstanding the discrepancy which exists in the French and English texts of the 3d section of the Act of 1855. The English text prevails.

The 212th Art. O. P. gave the right of arrest to any creditor, whose debtor was about to leave the State, even*for a limited time. This last clause was modified by the Act of 1840, so as to apply only to debtors about departing permanently from tbe State. Another modification was introduced by the Act of 184V, p. 63, sec. 1, with regard to debtors, who were citizens of another State ; they were subject to arrest only in case they absconded from their residence. In giving effect to the Article of the Code as amended by these two statutes, the rule was that any creditor had the right to arrest any debtor about departing permanently from the State, except when such debtor was a citizen of another State, in which case the right of arrest accrued only when the latter debtor absconded from his residence. A non-resident debtor from a foreign country might therefore be arrested although not absconding, when about to leave the State permanently ; so much was left then of Art. 212 C. P., after the restrictions imposed by the Acts of 1840 and 184V.

Prom this it will appear that the section 3d of the Act of 1855 is in conflict with the Article 212 of the Code of Practice upon the subject of the arrest of foreign debtors ; and yet the 9th section provides expressly that the Act is not intended to repeal the provisions in the Code of Practice. In order to give effect to both, the rule might be laid down that a foreign debtor may be arrested in two events ; 1st, when about permanently leaving the State; 2d, when absconding from his residence. But that provision of the 3d section of the Act of 1855, which reads, that no non-resident shall be arrested in this State except he has absconded from his residence, must give way to the 212th Art. O. P. in case of a foreign debtor about permanently leaving this State.

In thus giving effect to the Art. 212 C. P , it has not escaped the attention of the court that the Act of 1855 has repealed the two Acts of the Legislature amending that Article, and that the repeal of these two Acts has not re-instated the Article of the Code of Practice in its original state. “ The repeal of a repealing law does not revive the first law, unless it be so particularly expressed.” 0. C. 22 and 23. And the same rule may be laid down as to the amendment of laws, which, after all, is often but a partial repeal.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed.

It is further ordered, that the plaintiffs do have judgment against the defendant Antonio Cardenas, for the sum of six hundred and three dollars, with legal interest thereon from the twenty-third day of November, A. D., 1857, till paid.

It is further ordered, that the decree quashing the writ of arrest, issued on behalf of the plaintiffs against the defendant Antonio Cardenas, be set aside and annulled; and that the plaintiff’s right of recourse on the bond furnished for his appearance by the said Antonio Cardenas, with Paul Pouillot as his security, be, and is hereby recognised.

It is further ordered, that the defendant pay the costs in both courts.

Land, J., took no part in this case.