furnished, and work and labor done, prior to the first of January, 1883, in the construction of the railway, and for which payment has not been made; and that upon this sum, whatever it may be, they are entitled to share pro rata with complainants in whatever fund may remain of the $250,000, after the satisfaction of prior demands upon it. The result is that the cause must be referred to a master to take and state an account of the sums due the several parties under the statutory liens, as stated; and, after deducting these sums and any others chargeable for costs from the fund in court, then divide the surplus that may be found pro rata between Green, Hamilton & Co. and the complainants, and then the sum found due the complainants diYided pro rata between them, according to the amounts respectively due each, and report the result to this term of the court.
ROGERS v. WALKER.
(Circuit Court, E. D. Louisiana. .June 24, 1885.)
LIENS AND PmvrLEGES-UIVIL CODE LA. ART.
3217. The privilege purporting to be given by paragraph 3, art. 3217, Civil Codu La., "on everything which serves to the working of the farm," should be con. strued to apply only to such things as serve to the working of the farm, but do not constitute a part of the farm itself; that is, to movables by nature and destination,-movables serving to the making of the farm, but not belonging t.o the
SAME-WAGES OF LABORERS ON PLANTATION.
The services of laborers on a plantation inure directly to the benefit of those having liens or privileges upon the crop, in preserving the thing on which their mortgage and privilege rested, and therefore were entitled to an equitable as well as a statutory lien on the proceeds of the crop, but they in nowise bene. fited the owner of the land, and their wages have no equitable lien whatever against him, and a very doubtful statutory privilege.
SAME,-MoVABLES AND IMMOVABLES.
The Civil CodA La. arts. 3258-3270, inclusive, contemplate that priVileges bearing on both movables and immovables shall be first satisfied from the movables before resortin't to the immovables; and this seems to be also the equitable rule in marshaling assets.
On Distribntion of Proceeds of Sale vf a Plantation and its Crop. Don A. Caffrey and F. L. Richardson, for plaintiff. Chas. B. Singleton, R. H. Browne, B. F. Choate, and E. D. White, for intervenors. PARDEE, J. The intervention and opposition of Bush & Levert, claiming the laborer's lien and privilege on the proceeds of the plan. tation Bold to satisfy complainant's mortgage, to the extent that such proceeds may be made up from or by the value of the movables by
lReported by Joseph P. Hornor, Esq., of the New Orleans bar..
ROGERS V. WALKER.
nature, but immovables by destination, sold with and as a part of said plantation, will be rejected, because(1) I doubt if, under the Code, laborers on a plantation have any privilege on immovables. The privilege purporting to be given by paragraph 3, art. 3217, Civil Code La., "on everything which serves to the working of the farm," should be construed to apply only to such things as berve to the working of the farm, but do not constitute a part of the farm itself; that is, to movables by nature and by destination,-movables serving in the working of the farm, but not belonging to the owner. This seems clear, because the section of the chapter of the Code containing the article is specially designated, "Of the privileges on particular movables," and because the landlord or lessor is given the same privilege in the same paragraph; and it is absurd to give the lessor a privilege for rents on his own property, constituting, by law, a portion of the thing leased. The privilege in 3217, given for laborers' wages, is exactly the same as that given in the old Code for the hire of slaves; and yet, in the jurisprudence of Louisiana, there is not a reported case that I can find where such privilege was ever claimed on immovables by destination. In the chapters of the Code devoted to "privileges on immovables" and "privileges which em· brace both movables and immovables," no such privilege is referred to. (2) Because the services of the laborers, for whose wages a privilege is claimea., inured directly to the benefit of the intervenors, in preserving the thing on which their mortgage and privilege rested,in fact, as they say in their bill, "prevented the loss and destruction of the crop,"-and therefore was entitled to an equitable as well as a statutory lien on the proceeds of the crop; while the services of the laborers in nowise benefited the complainant, and against him the said wages have no equitable lien whatever, and, as I think, a very doubtful statutory privilege. (3) Conceding that the laborers' wages have, by law, a first privilege on the crop, and on the plantation to the extent of the mules and implements of husbandry thereon, and that intervenors are rightfully subrogated to that privilege, yet, as the Code (articles 3253-3270, inclusive) evidently contemplates that privileges bearing on both movables and immovables shall be first satisfied from the movables before resorting to the immovables, it follows that, when the proceeds of the crop came to the hands of the intervenors, they were bound to apply them to the satisfaction and payment of the laborers' wages which they had paid, and to the privilege of which they had been su brogated, before they can claim a resort to immovables. The rule claimed as above, for the Code of Louisiana, seems to be also the equity rule in marshaling assets. See Fonb1. Eq. 288; Lupton v. Lupton, 2 Johns. Ch. 628; McKI1,Y v. Green, 3 Johns. Ch. 58. (4) Except as above, I can see no advantage in resorting to the equity jurispruclence in relation to marshaling securities, as stated in 1 Story, Eq. Jur. § 538, note, and cases cited; 3 Pam. Eq. Jur. § 1414,
notes, and oases; because, while there may be said to be two funds, there are two liens claimed on each fund. On the crop fund there isFirst, the laborer's lien; and, second, the factor's lien. On the plantation fund, to the extent of the mules, etc., there is claimed-First, the laborer's lien; and, second, the mortgage lien. Rogers says "the laborers have two securities, while I have only one;" and the intervenors, while they are hampered with the fact that they hold both the laborer's and tbe factor's lien, make practically the same claim. It rather seems to be a case for the application of the maxim, qzti prior est tempore, potiar est jure. See Broom. Leg. Max. 263. (5) The fund in court has been brought in by the complainant Rogers to satisfy bis acknowledged prior-in time-mortgage, and the intervenorfl show no superior right or equity; and there is no basis in the case to render any decree, recognizing a concurrent equity. (6) For all the forugoing reasons, I am satisfied that the equity of the case is with complainant, Rogers.
LAFOLLYE and others v, CARRIERE and others. 1
(Circuit COU1't, E. D. Louisiana. March, 1885.)
933, REV. ST. Onder section 933, Rev. St., writs of attachment issued from the federal courts are dissolved, in conformity with state laws, Lv a surrender of property under the insolvent laws of the state.
By the law of the state of Louisiana, as construed by its supreme court, a cession of property made by insolvents dissolves all writs of attachment which have not matured into judgment prior to the cessiC'n; and under section 933. Rev. St., the rule must be the same in the federal courts.
SAME-INSOLVENT LAWS OF LOUISIANA.
The plaintiffs in these suits applied for and obtained writs of attachment against the defendants, A. Carriere & Sons, and under these writs seizure was made of various notes, bonds, and other securities. Subsequently, on the eighteenth of July, 1884, the defendants, A. Carriere & Sons, through E. L. Carriere and C. J. Carriere, surviving partners, made a cession of all their property to their creditors under the insolvent laws of the state of Louisiana. James M. Seixas was elected syndic of the creditors, and he appeared in court and through his counsel moved for the dissolution of the writs of attachment, on the ground that as the effect of the cession of the property of the insolvents was to dissolve all writs of attachment
by Joseph P. Hornor, Esq., of the New Orleans bar.