
    A. W. Walker v. V. Sanchez.
    Jurisdiction by our court over an absentee, bjr tbe appointment of a curator ad hoc to represent him, is only acquired when the subject-matter of the suit, and the nature of the proceeding render such an appointment proper.
    The curator ad hoc cannot, by his pleadings, invest the court with-jurisdiction when otherwise the court would have none.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    
      Elmore If King, for plaintiff.
    
      A. G. Semmes, for defendant and appellant.
   Merrick, C. J.

This suit was commenced by injunction and the appointment of a curator ad hoc to recover 21 damages alleged to have been sustained by the plaintiff, by the unlawful seizure in the State of Florida, in an attachment there issued at the suit of Sanchez against J. M. Hernandez, of one hundred and fifty-five slaves bought by plaintiff of Hernandez. The attachment was levied on the 3d day of March, 1853, and the items of damage alleged are jail fees, additional interest, counsel fees, traveling expenses, and two month’s wages of one hundred hands.

The negroes were sold by Hernandez to Wallcer, in January, 1853, and were to be delivered when Wallcer complied with the terms of sale. Prior to the levy of the attachment, the negroes were delivered to one Washington, to be delivered to Wallcer on such compliance. They, or a part of them, appear to have been under seizure under other process also when the attachment was levied.

As part of the price of the negroes, Wallcer gave, among others, four notes for $490, payable in one, two, three and four years; and one for seven thousand dollars, payable four years after date, to the order of Wallcer, and dated April 1st, 1853.

These notes were deposited with Colonel Thomas F. Hunt, of New Orleans, and on the 17th day of April, an agreement was entered into in Florida, between Sanchez and Hernandez, by which the attachment was to be released by the delivery, among other things, of the note of seven thousand dollars, then in Colonel Hunt’s hands. On the 20th of the same month, Hernandez gave Sanchez an order on Colonel Hunt for the five notes in his hands, above mentioned.

Plaintiff avers the ownership of the notes in Sanchez ; alleges that he has been informed and believes Sanehez intends to transfer the notes, and as a consequence plaintiff will not be able to collect of the same, the amount which is due him.

He prays for an injunction against Thomas F. Hunt, and for a curator ad hoc to represent Sanchez, an absentee, and that judgment be rendered against Sanchez for $7,757 21 and costs. The suit was commenced June 3d, 1853.

The curator ,ad hoc prayed for oyer of the act of sale, and excepted to the suit on the ground, that it was a suit by attachment under the disguise of an injunction ; that the bond and affidavit were insufficient, and for other causes patent on the face of the petition, and prayed that the injunction be dissolved with damages and interest, and attorney’s fees.

An answer was also filed reserving exceptions, and in the absence of instructions, denying all the allegations of .plaintiff’s petition, and alleging that defendant, by reason of the unjust and illegal proceedings of plaintiff, has sustained $2,500 damages, which the curator ad hoc claims by way of reconvention.

There was judgment in favor of plaintiff for $6,324 20 ; and it was decreed, that the injunction be perpetuated until the amount of the judgment should be paid by defendant.

The curator ad hoc has taken a devolutive appeal.

The appellant’s counsel urges, as a preliminary question, that the lower court had no jurisdiction over the demand in this case.

To this, it is replied by the counsel for the appellee, that Sanchez has never disclaimed the acts of the curator ad hoc, and that the counsel who appears in this court was retained by Sanchez personally, and that he adopts the pleas of the curator ad hoc, and is, therefore, bound by them. That none of these pleas deny the jurisdiction of the court, and that the curator ad hoc, without requiring judgment upon his exceptions, filed a reconventional demand, and thereby waived all questions as to jurisdiction.

Since the decisions in the cases of Broughton v. King and Dupuy v. Hunt, 2 Ann. 562 and 569, and the subsequent decisions of this court affirming the doctrine of those cases, the curator ad hoc cannot, by any informality of pleading, invest the court with jurisdiction which the subject-matter of the suit and nature of the proceeding do not give.

As the judgment cannot, in general, be in personam, whore the service of process has been on a curator ad hoc, the court must look to the subject-matter of the controversy in pronouncing the decree. See Stevens v. Graves, 9 An. 239; Hedrick v. Banister, 10 An. 208.

Here the plaintiff’s demand, under the most favorable view, was one sounding in damages for the wrongful seizure of his property by Sanchez. Sanchez had become the holder of certain obligations of the plaintiff not yet due. It was, therefore, not possible that compensation could have taken place, and that notes which had been discharged, were about to be put in circulation. Neither did the nature of the debt give Walker a privilege upon the notes ; and it is likewise certain that the service of an injunction upon Sanchez’s agent, Colonel Hunt, could not create one. There was then nothing in the nature of the controversy or process which could give the court jurisdiction.

But it is urged : “ If Sanchez had sued Walker on these notes, the latter had an undoubted right under the Act of 1839, amending the Code of Practice (Rev. Stat. p. 96, sec. 32), to set up his claim against Sanchez, by a plea in reconvention. The greater necessarily includes the lesser right. If Walker could prevent Sanchez from compelling him to pay the notes by judgment, a fortiori, he could prevent Sanchez from compelling him to pay them by passing them off to third persons.”

This argument admits of an answer. The conditions upon which one may set up in reconvention a demand not necessarily connected with or incidental to the main cause of action are : 1st. That the party should institute an action ; and, 2dly. That he should reside out of the parish or out of the State. Rev. Stat. p. 96, sec. 32; C. P. 375.

The first of these conditions has not happened, and may never happen, and nothing prevented Sanchez from becoming a resident of this city at the maturity of his obligations. If the conditions do not happen, and Sanchez does not submit himself to the jurisdiction of our courts, no roeonventional demand can bo instituted against a prospective demand to be based upon a state of facts which it is imagined may happen four years afterwards.

Wc conclude that the proceeding in this case, is not warranted by law.

It is, therefore, ordered, adjudged and decreed by'the court, that the judgment of the lower court be avoided and reversed; and now pronouncing such judgment as ought to have been rendered by the lower court: It is ordered that the plaintiff’s demand, including the injunction, be dismissed, as for the want of jurisdiction, and that said plaintiff pay the costs of both courts.  