EASTERN DIS. would have been compelled to pursue his claim for damages

March, 1833.

BARON

vs. BREEDLOVE

ET AL.

both by public prosecution and private suit. But neither the prior or posterior laws imperatively prescribe it as a duty on him to vindicate the offence as a crime against the public. Perhaps according to the provisions of the old law he could not have enforced his private rights without the aid of a conviction on account of the offence. But in pursuance of the sed by the theft articles of the Code, we are of opinion, that a person who slave, the owner suffers damages by the theft or robbery of a slave, may pro

For damages cau

or robbery of a

may be prosecu

vious to a crimi

ted civilly, pre- ceed immediately and directly against the owner of such nal prosecution, slave and obtain a judgment in the civil suit to ascertain the regularly issue on amount of damages without a previous criminal prosecution,

and execution will

the judgment un

less within three

dition the slave is

days after its ren- and that on a judgment thus rendered, an execution would regularly issue unless the owner of the slave should choose to abandon within three days after the rendition of the judgment.

abandoned.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled; and it is further ordered, that this case be sent back to said court, to be proceeded in de novo according to law, and that the costs of this appeal be paid by the defendant and appellee.

BARON vs. BREEDLOVE ET AL.

APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.

The transcript of the record of an appeal, returnable on the first Monday in the term, can not be filed on the second, the court having sat four days in the preceding week.

The facts are stated in the opinion of the court, delivered by PORTER, J.

March, 1833.

A rule has been taken by the appellant, on the appellee, EASTERN Dis. to show cause, why the transcript of the record of appeal, should not be filed.

WINEPRENDER

The transcript

an appeal return

The appeal was granted on the 14th of February, and HIS CREDITORS returnable on the first Monday of March. The record was of the record of not deposited with the clerk, until the second Monday of able on the first March. The court sat four days during the preceding term, cannot be week.

Monday in the

filed on the second, the court having sat four

ceding week.

The appellant has urged several reasons why the case days in the preshould be taken out of the general rule, but they are not sufficient to authorise us to do so. They show nothing which due diligence might not have guarded against. Let the rule be discharged.

Schmidt, for appellant.

WEINPRENDER vs. HIS CREDITORS.

APPEAL FROM THE COURT OF THE FIRST DISTRICT.

The act of February 22, 1817, confers directly no privilege on undertakers for making and repairing levees,

The 3216th article of the Civil Code gives no preference for making a levee to the prejudice of persons having mortgages or privileges on the land previous to the time when the Code assumed the force of law.

By the old Code no privilege was conferred upon undertakers and makers of levees.

The District Court is not without jurisdiction ratione materiæ in a suit brought by a minor to establish his claim against his tutor, and if no objection on account of personal privilege be taken at the trial, the judgment of that court is in itself valid.

By the tablau of distribution filed in this case by the acting syndic, it appears that after deducting all the costs and ex

April, 1833.

vs.

EASTERN DIS. penses attending the suit, there remained in his hands the sum of ten thousand and twenty-three dollars and eighty WEINPRENDER cents. The claims against the insolvent amounted to fortyHIS CREDITORS five thousand six hundred and forty dollars and eighty-one cents. The syndic ranked all the creditors on the tableau as ordinary creditors, leaving the questions of privilege in regard to the respective claims to be determined by the

court.

Louis Planchard and others, who had been placed on the tableau as creditors for six thousand seven hundred dollars, opposing its homolgation, prayed to be placed on it for ten thousand dollars, with privilege and preference over all others on the proceeds of the sale of a plantation surrendered by the insolvent, and upon which they had made and repaired a levee.

David C. Williams had been placed upon the tableau as a creditor for two thousand dollars. He prayed its amendment by allowing him a privilege over all others on the proceeds of the plantation for ten thousand dollars, the amount of a promissory note, for the payment of which, he alleged, the plantation had been mortgaged.

The minor heirs of Trouard, who were creditors upon the tableau for eight thousand one hundred and ten dollars, claimed to be placed thereon, with privilege for eight thousand three hundred and seventy-two dollars.

The judge a quo overruled the opposition of Planchard and others, decreed Williams to be placed on the tableau with privilege for one thousand seven hundred and seventynine dollars and fifty-six cents, and Trouard's heirs with privilege anterior to that of the vendor, for eight thousand and seventy-two dollars. Planchard and others appealed.

Soulé and Dennis, for Planchard, St. Avit, and others.

Daunoy, for Trouard's heirs.

Hennen and I. W. Smith, for Williams, made the following points:

April, 1833.

1. D. C. Williams, is a creditor of George Weinprender, EASTERN DIS. by judgment for ten thousand dollars, with interest thereon from April 3, 1816, till paid, with costs of court, as by record, number 2474 of the District Court, appears.

2. This judgment was on a note of hand, given by Weinprender for the purchase of the plantation which was sold for ten thousand dollars, by the syndics, and D. C. Williams is privileged thereon, as holder of the note, by assignment from the vendor, Trouard.

3. The claims of all the other persons put on the tableau by the syndics, are contested by D. C. Williams, he requires strict and legal proof of their demands; this he contends they have not produced.

4. As regards the minors, Trouards, calling themselves the nephews of A. Trouard; no proof is given of the tutorship having been taken by A. Trouard, nor is there any proof of an inventory of their estate; no estate belonging to them ever existed in Louisiana. No tutorship existed in Louisian; if any existed, the sale of the plantation was prior to such tutorship, and consequently, the tacit mortgage they claim, cannot go back to the land sold by their tutor prior to his appointment. And if any tutorship existed, it was in France, a foreign country; and the tacit mortgage cannot have effect in Louisiana, to the prejudice of creditors, citizens of Louisiana.

5. If any claim in favor of the Trouards exist, they have a tacit mortgage; it can have effect only on the plantation of A. Trouard, sold for ten thousand dollars; the balance of the property sold for six thousand one hundred and seventy dollars, is not liable in any way or event to their claims, as it was the private property of Weinprender, and was never held by A. Trouard.

6. The claims of the undertakers of the levee, must also be confined to the plantation sold by A. Trouard; as in their opposition, they expressly say, their work was done on that plantation.

7. The undertakers of the levee have no privilege on the plantation sold for ten thousand dollars, in as much as the

WEINPRENDER vs.

HIS CREDITORS

April, 1833.

EASTERN DIS. levee they made thereon was washed away before it was ceded by Weinprender and sold by his syndics.

WEINPRENDER 09

HIS CREDITORS

8. The contract for making the levee was never enregis tered, and is not binding on third parties. Louisiana Code, 3239. 1 Martin's Dig. 700, 704. All liens are to be recorded, which have the effect of a legal mortgage. Laws of 1817,

p. 122, sec. 8.

9. The makers of the levee have no privilege superior to that of the vendor. Louisiana Code, art. 3235.

10. The evidence adduced by the opposing creditors was illegal; and being taken subject to all legal exceptions, must be disregarded.

11. D. C. Williams is entitled to a dividend on the whole amount of his judgment, with the costs of court as a privileged

claim.

12. D. C. Williams having a judgment is entitled to be paid by privilege before the chirographic creditors.

13. A division of the proceeds of the land purchased from A. Trouard by Weinprender must be made from the proceeds of the estate belonging to him in his private right, and a distribution be made of the two separate amounts among the respective creditors, holding mortgages and privileges thereon.

14. As there is no privilege or mortgage on the estate of Weinprender sold for six thousand one hundred and seventy dollars, the creditors must share pro rata, in the payment of any balance due them, after exhausting the proceeds of the plantation sold for ten thousand dollars.

15. The judgments, Nos. 595 and 868, offered in evidence by the opposing minors, Trouards, can have no effect against third persons, being res inter alios acta, and should be disregarded, being illegal evidence.

16. The judgments at all events can have no effect beyond their dates, and cannot make any private acts, documents or papers, on which they are founded, of any validity, before the date of the judgments.

17. The undertakers of the levee are not entitled to any dividend. The sole resource they had for their claim, the levee made by them, has been destroyed by the Mississippi.