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Syllabus.

they meant “as evidence of criminality ;” and that the same construction had been given to similar words in prior statutes ; citing In re Henrich, 5 Blatchford, 414, 424, and In re Farez, 7 Blatchford, 345, 353. We concur in this view.

Since the close of the oral argument we have been furnished with a printed brief on the part of the appellant, which we have examined, but we do not deem it necessary to make any further observations on the case. The order of the Circuit Court is

Affirmed.

SALOY v. BLOCII.

ERROR TO THE CIRCUIT COURT OF THE

UNITED

STATES FOR THE

EASTERN DISTRICT OF LOUISIANA.

No. 92. Argued December 18, 19, 1889. – Decided May 23, 1890.

Saloy, being the owner of a plantation in Louisiana, leased it to P. B.

Dragon and Athanase Dragon. The Dragons arranged with Bloch to furnish them with goods, supplies and moneys necessary to carry on the plantation, for which he was to have a factor's lien or privilege on the crops, which were also to be consigned to him for sale. Saloy contracted before the same notary as follows: “And here appeared and intervened herein Bertrand Saloy, who, after having read and taken cognizance of what is hereinbefore written, declared that he consents and agrees that his claim and demands as lessor of the aforesaid · Monsecours plantation' shall be subordinate and inferior in rank to the claims and privileges of said Bloch as the furnisher of supplies or for advances furnished under this contract; and that said Bloch shall be reimbursed from the crops of 1883 made on said place the full amount of his advances hereunder without regard and in preference to the demands of said Saloy for the rental of said plantation; provided, however, that three hundred and fifty sacks of seed rice shall remain or be left on said plantation out of the crop of this year for the purposes thereof for the year 1884;" Held, (1) That under the laws of Louisiana the privilege or lien of the land

lord over the crops of the tenant was superior to that of the

factor; (2) That the effect of Saloy's agreement was only the waiver of that

priority, and that it did not commit him in any degree to the ful

filment by the Dragons of their agreements with Bloch; (3) That if Saloy asserted his privilege by taking possession of the

Opinion of the Court.

crops, (which he did,) he thereby became liable to account to Bloch, and that this liability could be enforced by a suit in equity,

to which the Dragons would be necessary parties; (4) But that he was not liable therefor to Bloch in an action at law, to

which the Dragons were not parties.

The case is stated in the opinion.

Mr. Assistant Attorney General Maury and Mr. E. Howard McCaleb for plaintiff in error.

Mr. George A. King for defendant in error.

Mr. William S. Benedict and Mr. Charles W. Hornor filed a brief for defendant in error.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is an action on contract brought in the Circuit Court of the United States for the Eastern District of Louisiana, by Simon Bloch, a subject of the Emperor of Germany, against Bertrand Saloy, a citizen of Louisiana, to recover the sum of $6266.23, with interest and costs, alleged to be due from Saloy to the plaintiff.

In his petition the plaintiff avers that on the 26th of January, 1883, he entered into contract with P. B. Dragon and A. Dragon, by act before a notary, to furnish funds necessary for the cultivation and furnishing of necessary supplies to a plantation in the parish of Plaquemines, in said State, known as “Monsecours," for the year 1883, in consideration of the interest and commissions stipulated to be paid in said act ; --that said plantation was leased by the Dragons from said Saloy, and that Saloy appeared in said act and made himself a party to said agreement, bound himself by said act and said agreement to carry out the terms and conditions thereof, and did waive and remit, in favor of petitioner, any and all superior rights and claims that he had or might have against said plantation, its buildings, etc., and the crop to be raised thereon during the year 1883, as the lessor or landlord thereof, to the

Opinion of the Court.

end that said land might be cultivated, the advances paid back to petitioner, and after payment of all legal claims, charges and expenses, the balance received should be paid over to said Saloy, the landlord.

The petition then stated that Saloy, in disregard of his contract, did, in December, 1883, proceed by action in the 24th District Court in and for the parish of Plaquemines, to a suit and seizure of the buildings, the growing crop, and the crop in process of manufacture on said plantation, and placed the sheriff in possession of the same, to the damage of petitioner exceeding the sum due him; that he, Saloy, afterwards obtained an order of the court to bond the property seized, and sold the same and converted it to his own use, without paying petitioner the balance due him for his advances under said contract; which balance was shown by a detailed account annexed to the petition, by which it appeared that Bloch had received only $23,336.10 net proceeds of the produce of the plantation, and had advanced in money and supplies (including his interest and commissions) the sum of $29,602.33; leaving a balance in his favor of $6266.23.

The petition further states than when Saloy so seized and converted the property, the Dragons were not indebted to him; and the said property was subject to the claim of the petitioner for the balance due him on his said advances; which has not been paid by said Dragons, (who are without means to pay the same,) or by Saloy; and that said acts of Saloy are illegal, unjust and malicious; and that by his taking possession of said crop, stopping the business, demoralizing the hands, and removing crop and machinery, he deprived the Dragons of all power to comply with their contract with the petitioner, and has injured and damaged the petitioner in a sum far exceeding the sum due him by them; and so the defendant, Saloy, is responsible for the said amount due petitioner.

To this petition the defendant, Saloy, filed exceptions: 1st. No cause of action.

20. Plaintiff cannot maintain his action until he has first obtained judgment against the Dragons, who are necessary parties to the suit.

Opinion of the Court.

3d. That the judgment rendered for Saloy against the Dragons cannot be questioned collaterally, but only by appeal or action of nullity to set aside the proceedings, over which this court has no jurisdiction.

4th. The release bond given by defendant in said suit to the Dragons (to get possession of the property) cannot be litigated in this suit.

5th. Exceptor specially pleads the judgment rendered in said suit of B. Saloy v. Pierre B. Dragon and A. Dragon, No. 617 of the docket of 24th judicial district court for parish of Plaquemines, as res judicata of the necessity for, and validity of, the writ of provisional seizure therein issued, etc., (the record of that suit being filed with the exceptions.)

Upon argument, these exceptions were overruled, and thereupon Saloy filed an answer and plea in reconvention. In the answer he first made a general denial of the allegations of the petition, and then denied. specifically that his suit against the Dragons, his tenants, (to wit, No. 617 of the docket of 24th judicial district court, etc.,) was in violation of any agreement made by him with the plaintiff, or that his acts therein were injurious to plaintiff, or illegal, unjust, or malicious, as charged; but he avers that the plaintiff appeared and ratified defendant's acts by furnishing the sheriff funds for cultivating the plantation and harvesting and manufacturing the crop, after the provisional seizure; and subsequently received from the sheriff the amount of such advances, which were paid by defendant.

In the plea of reconvention the defendant set up his title, as landlord, to Monsecours plantation, and the lease by which the Dragons held it from him, being at an annual rent of $4800, secured by notes of $1800 each. He then set out the contract made by the Dragons with the plaintiff, Bloch, annexing a copy of it to his plea. He further stated that the Dragons being heavily in debt, and unable to pay, in October, 1883, two of their creditors sued them, and sequestered and seized 100 barrels of rice and a threshing machine, subject to reconvenor's landlord privilege and that of said Bloch, and reconvenor intervened in that suit to protect his interest, and

Opinion of the Court.

afterwards, in November, 1883, brought the suit complained of by the plaintiff on two of the rent notes held by him, and obtained a provisional seizure of the property subject to his lien as lessor, and obtained judgment against the Dragons for the amount of the two notes, less certain payments made on one of them; and that from the sale of the property seized he only realized, after paying claims of laborers, and costs and charges, the sum of $1258.28, which, being deducted from his judgment, still leaves due to him the sum of $6017. This amount he claims from the plaintiff, Bloch, by way of reconvention, because, as he avers, Bloch received from the proceeds of the crop of the plantation a surplus of more than $7000, over and above all his advances, commissions and other lawful claims.

The cause was tried before a jury on these issues, and a verdict was found for the plaintiff of $3500. Several bills of exceptions were taken during the trial, but, from the view we have taken of the case, it is unnecessary to advert to them. A radical exception taken by the defendant at the beginning, and always insisted upon, is that the action is not maintainable; and that if the defendant is liable at all to the plaintiff, he cannot be made to respond in this form of proceeding, in which the Dragons are not parties, and no judgment is shown to have been recovered against them. We are of opinion that this exception is well taken; and, in order to explain our views, it is necessary to look a little more particularly at the laws relating to the respective rights of lessors in regard to the rents due to them, and of factors advancing moneys on supplies for the cultivation of a plantation, and at the alleged contract on which the suit is founded.

In treating of the subject of privileges, the Civil Code of Louisiana, by article 3217, declares as follows:

“The debts which are privileged on certain movables are the following:

“1. The appointments or salaries of the overseers for the current year, on the crops of the year and the proceeds thereof; debts due for necessary supplies furnished to any farm or plantation, and debts due for money actually ad

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