Eshom v. Lamb , 2 Mart. (N.S.) 219 ( 1824 )

Martin J.

delivered the opinion of the court. The plaintiff charges, that the defendant, Lamb, is indebted to him for work and labour on a bridge, which the latter undertook to build for the police jury of Feliciana-that there is a sum of money, due by the police jury to Lamb, and he has a lien on the bridge for his payment-that the defendant, M'Caleb, is the treasurer of the police jury-judgment is prayed against the defendant, Lamb, and that the other defendant be directed to retain the sum to be decreed out of the monies due to the defendant, Lamb, by the police jury, and pay it to the plaintiff.

East'n District. March, 1824.

Lamb pleaded the general issue, and payment.

M‘Caleb denied that the petition shewed any cause of action against him-urged that as the proceedings are by citation, & not attachment, he could not be called in as a garnishee-that he has no interest in the suit. He denied every allegation which related to him.

The plaintiff filed a supplemental petition, praying that Lamb might be held to bail. This was accordingly done.

The district court, however, discharged Lamb, on the ground that he was held to bail on a supplemental petition. The plaintiff appealed.

In addition to the ground, on which the appellee’s discharge was obtained, his counsel shews that, if the proceedings against the defendant, M‘Caleb, be valid, the subsequent arrest of the appelleee was irregular-by making M'Caleb a party, the plaintiff has hung up the defendant’s funds in his hands, and the post-error arrest is unnecessarily injurious and oppressive.

We supported, in the case of Vidal vs. Thompson, 11 Martin, 23 the decision of the judge of the fourth district, who had declined discharging Thompson on the ground, on which the present appellee obtained his ; and we did not then see any difference there, in praying for bail, in an original, or a supplemental petition ; and we are not now able to discover any.

M‘Caleb has denied that he has any funds, on which the appellee has any claim, and the appellee has not averred that there is, nor made this a ground of his application in the district court.

It is therefore ordered, adjudged and decreed, that the judgment of the district court he annulled, avoided and reversed, and the case remanded, to be proceeded on, according to law. The costs of the appeal to he paid by the appellee.

Watts and Lobdell for the plaintiff, Woodruff for the defendant.