dissenting. The sale from the defendant to the plaintiff having been made in Louisiana, and within the jurisdiction of the court, I think it was a proper case for the appointment of a curator ad hoc, to represent the defendant, who resides in Kentucky.
The rule, sanctioned by the more recent decisions on this subject, confines the power of appointing curators ad hoc to cases where there is something upon which the jurisdiction of the court can properly he based. In the case of George v. Fitzgerald, 12 L. R., 606, the rule was laid down more broadly than was necessary for the decision of that particular case, which, like this, was a redhibitory action against a defendant residing in another State, but the conclusion then arrived at, that in such a case, a curator ad hoc may be appointed to represent the absent defendant, is not at variance with any of the more recent decisions, and is not, as I think, in conflict with the decision in 2 Ann. R.,
562, of Dupuy v. Hunt. Where the subject matter of the suit is the title to land, it is the constant practice to cite absent defendants as warrantors by the appointment of a curator ad hoc. Negroes are considered real estate, and where the object of the suit is the rescission of the sale of property of that kind on the ground of a vice inherent in the contract itself, and the property is within the jurisdiction of the court, there is the same reason for applying the rule to such a case as there would be in an action to rescind the sale of a tract of land.
The defendant in this case entered into an agreement, in writing, to submit the controversy to arbitrators who were to make a report, and within ten days file it in the office of the Clerk of the District Court of East Baton Rouge. He appeared afterwards, by counsel, before the arbitrators and objected to their proceedings on the ground that he had not been personally notified, and when the suit was instituted appeared again, by counsel, and excepted to the jurisdiction of the Court, on the ground that he resided out of the State, and that the court was without authority to appoint a curator ad hoc to represent him.
I am of opinion the court below erred in sustaining the exception.