
    No. 2789.
    Cass & Dowling v. L. S. Rouark — J. A. O’Brien, Intervenor.
    ■Where the plaintiff, in a suit against D, seized certain bales of cotton by attachment, in the hands of A, to whom the cotton had been shipped, and A intervened, and alleged he had privilege on said cotton for advances to make it and for charges pad on the same, which was in his possession, and D bonded the property after the intervention of A;
    Held — That the intervention and third oppositi )n could not be excepted to as premature. The intervention could not be considered as dismissed by the bonding. The bond remained in lieu of the property seized and released.
    The intervention could only be made while the suit was pending; and there is no good reason why the third opposition should not be made at the same time, in order that the relative rank of the contesting creditors should be settled in one suit.
    APPEAL from the Sixth District Court, parish of Orleans. Oooley, J.
    
      MoQloin & Kleinpeter, for plaintiffs and appellees. Boselius <& Philips, for intervenor and appellant.
   Howe, J.

The plaintiffs seized certain cotton by attachment. O’Brien came in by way of third opposition, claiming a privilege on the cotton and its proceeds. The plaintiffs filed many exceptions to the right of the opponent to come in, of which the court below sustained one, namely, that the opposition was premature. The opponent appealed.

The judge below may have erred in the reasons he gave, and yet his judgment be practically correct.

It appears by the record, that the defendant in the suit bonded the ■cotton attached, and it was released to him. The bond was left to respond to the plaiutiffs’ rights, but the opponent could take no advantage of it. He could, have no privilege on the bond, nor any proceeds which might be realized by the enforcement of its obligations. He never seized the cotton himself. From the moment that the cotton went out of court his opposition perished.

Judgment affirmed.

On Rehearing.

Ludeling, C. J.

The plaintiffs sued L. J. Rouark, a resident of Mississippi, and attached thirteen bales of cotton in the hands of John A. O’Brien, to whom the cotton had been shipped in New Orleans.

O’Brien intervened, and alleged that he had a privilege upon said cotton for advances made to Rouark to make the crop of cotton and for charges paid on said cotton, which'was in his possession, the same having been shipped to him by the defendant in accordance with their contract, whereby he agreed to make the said advances. The defendant bonded the property after this intervention. The plaintiff filed exceptions to the intervention, one of which the judge a quo sustained, to wit: that the intervention was premature. The intervenor appealed.

In our former opinion we said that the release of the property by bonding destroyed his opposition. This was an error. The intervention and third opposition could not be dismissed by 'the bonding of the property by either the defendant or plaintiffs. The bond remained in lieu of the property, to respond for whatever judgment might be-rendered in the case.

■ The intervention and third opposition was not premature. The-intervention could only be made while the suit was pending, and there-exists no good reason why the third opposition should not be at the-same time, in order that the relative rank of the contesting creditors should be settled in one suit.

The evidence shows that O’Brien made advances of plantation supplies, etc., to make the cotton; that the cotton was shipped to him to-reimburse him for said supplies and advances made on the cotton, and that the cotton was in his possession at the time it was attached by the plaintiffs.

Under these circumstances we think the intervention and third opposition should have been sustained.

It is therefore ordered and adjudged that the decree of this court heretofore rendered be set aside; that the judgment of the lower court be annulled, and that there be judgment in favor of the intervenor and third opponent, O’Brien, against L. J. Rouark for the sum of $1611 32,. with five per cent, per annum interest from the first of January, 1869, until paid and costs, and that said sum be paid out of the proceeds of the sale of said thirteen bales of cotton by pieference, and the remainder, if any there be, be applied to the payment of the judgment of Cass & Dowling, the plaintiffs. Costs of appeal to be paid by the-, appellees.  