
    Neilson v. Pool.
    Where the petition alleges “ the defendant is taking off liis crop,” and the affidavit declaros all the facts in the petition to “ be true,” “that the defendant is reputed insolvent and unable to pay his debts,” it is sufficient to support the sequestration of his crop.
    The petition and prayer for a sequestration and for judgment on the noto -when it becomes due, may be considered a conservatory measure, and the filing of an amended petition after the note is actually due, with a prayer for judgment, be taken as the inception of the suit.
    Appeal from the court of the fourth district for the parish of Iberville, the judge of the second district presiding.
    This is an action on a promissory note. The note of defendant became due on the 1st December, 1889, and suit was commenced the 3d Sep- [210] tember preceding. The plaintiff alleges in his petition that the note was given for the balance due him on a settlement for his wages as an overseer, with a mortgage and privilege on the growing crop; that the defendant he fears and verily believes intends to send off the cotton crop as fast as it is picked, out of the jurisdiction of the court, and dispose of it during the pend-ency of this suit; wherefore he prays that the crop of cotton then growing and being picked out be sequestered, and that he have judgment for the amount of his said note, when it becomes due, together with his lien or privilege on said cotton.
    On the 1st of February, 1840, a supplemental petition was filed, setting out the same facts, and containing the same allegations, except as to the sequestration, which had been already obtained, praying for judgment on the note, with a privilege or lien on the cotton, and that it be sold to satisfy said judgment.
    The plaintiff declares in his affidavit for a sequestration that the facts and. allegations in the petition are true; that he fears and believes the defendant: will remove his cotton crop from the jurisdiction of the court and out of the-State before his debt becomes due, and deprive him of the only security bellas for the payment of his debt, as he is reputed to be insolvent and unable; to pay his debts.
    There was judgment by default duly taken and rendered on these petitions, but before final judgment the defendant filed his answer. He avers the-suit was prematurely brought before the note became due and payable; that, the affidavit is insufficient, inasmuch as it shows no cause for a sequestration;. that he has shown no just cause to suspect that defendant would remove tha cotton crop on which the privilege is claimed, but was actuated by malicious feeling, with a view to injure and cause the defendant damage. He further-avers that the two petitions filed are in the nature of two suits for the same debt; that the supplemental petition was filed without leave of the [211]] court or consent, and is an original petition which should he dismissed, be* cause two suits, cannot be pending at the same time; that no cause of action existed on the 3d September, when the first petition was filed, and that he is not, nor was not liable in that suit. He therefore prays that these suits be dismissed; that he have judgment in reconvention for the wrongful suing out of the sequestration in the sum of $200 special damages, and $800 general damages, &c.
    Upon these pleadings and issues the case was tried.
    The note, and an act of mortgage which had been draw up and signed, giving a mortgage on the crop to secure the payment of the note, were offered in evidence.
    It was shown that when the note became due, payment was demanded at the Union Bank, and it was duly protested for non-payment.
    There was judgment for the plaintiff, and the defendant appealed.
    
      Edwards for the plaintiff.
    
      Ives contra.
   Mastín, J.

delivered the opinion of the court.

This is an action against the maker of a promissory note given for overseer’s wages, secured by a special mortgage attempted to be given on the growing crop of the defendant. The note is payable on the first of December, 1839, at the Union Bank in Plaquemine. Suit was instituted the 3d September, 1839, and the crop sequestered on the affidavit of the plaintiff, that the defendant was about to gather and remove it beyond the jurisdiction of the court, and beyond .the limits of the State. He prays for judgment on the note as soon as it becomes due, and his sequestration be maintained.

On the 7th February, 1840, an amended petition was filed, including the note and debt first sued on, and judgment is prayed thereon. Judgment by [212] default was taken on the original and amended petition, and was after-wards set aside on answer filed.

The defendant avers that the suit is premature, having been instituted three months before the note became due; and the amended petition is in the nature of a second suit for the same debt, instituted during the pendency of the first, and cannot be maintained. He avers that he has sustained damages in consequence of the suing out of the sequestration, which he expressly charges to have been illegally done and without cause. He prays that the suit be dismissed and that he have judgment for damages and his costs.

There was judgment for the plaintiff on these pleadings, and the defendant appealed.

It does not appear that the sequestration was improperly granted. The objection to it is that the affidavit does not state the facts on which the plaintiff grounds his apprehension that the defendant will remove the cotton from the jurisdiction of the court and the State.

The petition states that the defendant is taking off the crop, “ and the affidavit declares all the facts mentioned in the petition are true. It further states that the defendant is reputed insolvent and unable to pay his debts.” These are the facts presented as creating the apprehension which induced the plaintiff to avail himself of the sequestration. It is not pretended that they are untrue. The affidavit is, therefore, sufficient.

The original suit in this case was commenced by an application for an order of sequestration, three months before the debt became due, but the note was annexed and judgment prayed for, when it actually became due.

The supplemental petition filed after the note was really due, may well be considered as the inception of the suit; as the first petition contained only the application and grounds for a conservatory measure. Code of Practice, art. 208 ; Williams v. Duer, 14 La. Rep. 531.

On the trial, the note was produced and proved to have been [213] given for the amount due the plaintiff for his wages as an overseer of the defendant, in making the crop then growing and about being gathered. The property sequestered was part of this crop on the defendant’s plantation.

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