
    
      POYDRAS vs. HIRIART.
    
    Appeal from the court of the fourth district
    a copy of. a mortgage, not made by the proper of-fleer, will not suffice in an action against a third possessor un-^ethe *old
   Porter, J.

ti •• ¿*1 delivered the opinion of the court. This is an hypothecary action in which J (j,e plaintiff prays for an order of seizure and 1 1 J sale of a certain slave, described in his peti. tion, on which he claims a right of mortgage and seeks to enforce it on the property in the hands of the defendant, a third possessor.— The court below gave judgment of non suit against the plaintiff, from which he appealed.

The proceedings in the case were commenced under the government of the late Civil Code, and have been conducted in reference to the rules therein prescribed in relation to actions of this kind. According to these rules a plaintiff who desires to have mortgaged property seized in the hands of a third possessor, must produee a copy in due form of the act mortgage and a judgment against the principal debtor. See O. Code, page 460, art. 43*

In the present suit the plaintiff produces a record of the proceedings and judgment, by him obtained against the principal debtor, and amongst these proceedings is found a copy of the instrument of mortgage as transcribed by the clerk of the court before which said proceedings were carried on. This is clearly not a copy in due form as required by the code. It is only the copy of a copy, and consequently not directly certified by the officer intrusted to keep the register of mortgages.

But to supply this defect, the counsel for the appellant insists on the intervention of the present defendant, in the suit commenced and carried on against the principal debtor. The object and the sole object of that intervention as shewn by the record of the proceedings which look place in the case, was to obtain relief by the intervening party against a sequestration’ by virtue of which his slave had been seized. We believe it to be a circumstance which does not change his situation from that of an ordinary third possessor of mortgaged property. The plaintiff failed to make out his case, by not producing a copy of the mortgage in due form ? and the judge a quo acted correctly in non- ... suiting him.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.  