
    Same Case.—On a Re-hearing.
    
      M. M. Robinson, for the plaintiff,
    having obtained a re-hearing, contended that the judgment of the lower court should be reversed in loto. The tobacco belonged to Caldwell at the time of its removal from the building leased to him by plaintiff. The testimony of Smith shows, that defendant removed it after he was aware that Caldwell had absconded as an insolvent. Defendant having sold the tobacco on a credit, had no right of revendication, (Civ. Code, art. 3196,) and his privilege as vendor was inferior to the landlord’s. Civ. Code, arts. 2675,2679,3184, 3225, 3230. Troplong, Priv. et Hypoth. vol. 1, No. 194. Duranton, vol. 3, tit. 18, No. 87. The resale by Caldwell to Parrish was in tiempo inhábil, and an attempt to give the latter an illegal advantage over the other creditors of the insolvent. It was fraudulent and void. See Brown v. Kenner, 3 Mart. 273. Meeker v. Williamson, 4 Mart. 626. Canfield v. Maher, 4 Mart. N. S. 174. Saul v. His Creditors, 5 Mart. N. S. 620. Taylor v. Knox, 2 La. 18. Ingham v. Thomas, 6 La. 83. Zacharie v. Buckman, 8 La. 308. Muse v. Yarborough, 11 La. 530. Defendant having illegally removed and converted to his own use property on which plaintiff had a privilege for the payment of his rent, is bound to repair the injury which the latter has sustained in consequence. Civ. Code, art. 2294. The question which this case presents is, whether an absconding insolvent can alter, by a pretended sale made at the moment of absconding, the relative privileges of different creditors on the property left by him, and thus give a preference not known to the law, to one creditor over another.
    
      Peyton and 1. W. Smith, for the defendant.
    There is no legal proof that Caldwell was indebted to plaintiff. The record offered in evidence by plaintiff was a proceeding in rem,, and is, as to the defendant in this case, res inter alios. It is not proved that. Caldwell was insolvent, nor is it alleged in the petition. There was nothing illegal in the removal of the tobacco by defendant. Art. 2679 of the Civil Code, gives a privilege on the property only ; and there is no allegation in the petition that the tobacco could not be found; or, if there be, the evidence does not support it; nor is there any allegation that it was removed to deprive the plaintiff of his privilege, nor that it operated to his injury. Plaintiff has not shown that, after exhausting the property of the defendant, anything is due to him. He must, in any event, exhaust Caldwell’s property before he can proceed against the defendant.
   Martin, J.

The plaintiff is appellant from a judgment which denied him the landlord’s privilege on a quantity of tobacco in a store of his. W.e affirmed a judgment of the District Court, in April, 1842, as to the greatest part of the tobacco, and reversed it as to two three-quarter boxes, remanding it as to the latter. We were prevailed upon to allow the plaintiff and appellant a re-hearing, and have read with attention his objections to our first view of the case. The argument does not appear to have extended beyond that with which he had favored us on the first hearing ; and we are not satisfied that the judgment theretofore given should be changed. It must, therefore, remain undisturbed.  