Tom v. Ernest , 15 La. Ann. 44 ( 1860 )

Cole, J.

The petition represents that André Marchesseau left the city of New Orleans to go to California about the year 1849, and, before leaving this city, deposited in the hands of Marie Louise Duseau a child named Ernest, a mulatto boy and a slave for life, born about the 17th of February, 1848, from a slave named Mary, the property of Samvel J. Peters, Jr., a resident of New Orleans. That afterwards. Marie Louise Duseau entrusted and deposited the child Ernest in the hands of plaintiff, to be maintained and kept for Marchesseau.

That the expenses incurred by petitioner for the preservation of this slave amounted to $570 on the 5th of June 1857, when the said Peters took possession of the slave to keep him until he should be ton years of age. That the said Duseau died in May, 1857, and Marchesseau has never returned from California. That Marchesseau left no agent in Louisiana, and has not been heard of since about eight years, which induces petitioner to believe that the slave Ernest, whom he represented as his property, has since been abandoned by him. ’

That the nature of petitioner’s claim entitles him to a privilege upon this slave; the claim being the expenses incurred by the plaintiff for the preservation of the slave deposited in his hands as aforesaid. That he is entitled to proceedings in rem, that is, against the slave himself, which stands pledged for the debt, by virtue of the privilege attached to his claim. He prays for a writ of provisional seizure, against the slave, and for judgment in his favor for his claim and for the sale of the slave to satisfy his privilege.

The -writ of provisional seizure issued, but upon motion of the curator ad hoc of Marchesseau, it was set aside, and plaintiff appealed.

The District Court did not err. The 4th section of Art. 285 of the Code of Practice provides that provisional seizure may be ordered when the proceedings are in rem. that is to say, against the thing itself, which stands pledged for the debt, when the property is abandoned, or in cases 'where' the owner of the thing is unknown or absent.

A slave is not a thing, in the sense of the preceding 4th section of Art. 285 of the Code of Practice. This Article does not, therefore, authorize the present form of action, and there is no other statute that does.

J udgment affirmed, with costs of appeal.

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