*1082On the Merits.
Plaintiff has not argued that the fifteen days had not elapsed after the removal of the crop. That fact is referred to in his brief in the following terms:
“ While it is true that plaintiff did not assert his rights within fifteen days after the remo pal of the cane from the plantation, it is likewise true that when he did assert his rights, it was not by the application of the conservatory writ of provisional seizure.”
The question for solution is whether a lessor can recover the lessor’s privilege fifteen days after removal, on sugar and molasses consigned by the planter, in due course of business, to his merchant, to whom he is indebted for more than the amount of his crop?
The plaintiff contends that the second section of Act 66 of 1874 provides for the shipment of the crop by the farmer, and the right of the consignee to sell the property and appropriate the proceeds of the sale to payment of the amount due for such advances as may have been made thereon, but that the effect of the section is therein limited “ so that nothing shall be construed as to defeat or lessen the privileges of the laborers and landlord in this State for wages and rent as now existing by law,” and in argument directs attention to the fact that the act of 1874 was amended in 1882, by extending the reservation so that the removal of the property and its consignment to the merchant would not have the effect of defeating or lessening ■“ any other valid existing privilege or lien.” Act 44 of the Acts of 1882, page 56.
These statutes have not added to the security of the lessor, nor have they repealed Article 2709 of the Oivil Code.
“In the exercise of this right, the lessor may seize the objects which are subject to it before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property of the lessee and can be identified.”
The effect of removal of property subject to the lessor’s lien has received corroboration in a number of decisions.
In Dennistown vs. Mallard, 2 An. 14, relied upon in support of the proposition that the privilege after the fifteen days have .elapsed since the removal of the property, the court held that those who opposed the lessor’s lien could not place themselves in a better position by fraudulently removing the goods beyond' the landlord’s reach and frustrating his search.
*1083The goods had been clandestinely removed, in the night time, by ■one who was not a purchaser in good faith.
The plaintiffs, by supplemental petition, made the purchasers parties to the suit, and- charged that the assignment was a fraudulent preference, to deprive them of the landlord lien'.
The court decided that it was a fraudulent -preference by an insolvent debtor, and that there was, besides, a breach of good faith toward the landlord, and a violation of his rights in the removal of the goods, and that the ^object of the removal was to defeat the lien.
There is marked dissimilarity between that case and the case at bar.
'The latter is not a revocatory action.
It is not alleged that the defendant is insolvent. It is not proven that the party, “ with whom the debtor contracted, was in fraud, as well as the debtor.” O. O. 1982.
In Desban vs. Picket, 16 An. 350, it was decided, on the authority of Article 2709 of the O. O., that the lessor’s right of privilege for the payment of rent on the movable effects of the lessee, was extinguished by the removal and sale of the effects of the lessee, for a valuable consideration, although fifteen days between the removal by the lessees and the seizures by the lessor'had not expired.
Similar conclusion was reached in St. Charles Hotel vs. Tarbox & Co., 23 An. 775.
In Washburn vs. Frank, agent, 31 An. 427, the testimony established that the property was removedjtoldefraud the lessor, and that .a simulated sale was made to defeat the privilege.
If the plaintiff had proven the allegations of fraud, these decisions would apply, and our conclusion would be different.
Without any evidence of fraud, the court will not order an amount realized on a crop openly manufacturedj'.and placed on the market, to be paid by the pledgee to the lessor, who remained in.active until several days after the sale.
Reverting to the decisions quoted, why would the court dwell upon the issue of fraud, and decide it, if the landlord’s privilege is not limited to fifteen days after removal.
With or without fraud, it would be subject to the privilege, and •there would be no necessity to prove it, in order to recover.
The consignment of the crop can not have the^effeeb of defeating or lessening “ any other valid existing]privilege or lien.”
*1084The sale was made and the proceeds credited before any rights were asserted. They present this insurmountable difficulty to the recovery of plainciff’s claim.
The sale of this crop was not made pendente lite, in so far as Hernandez is concerned.’ If it be conceded that the mere notice given on the 3d of December was sufficient to bring the property within the grasp of the law, although no copy of the petition nor citation were served on the merchant, only a notice of a writ as having issued against Bancker, it is made manifest by the uncontradicted testimony of the only two witnesses who testified with reference to that matter, that the crop from the Carroll place had been sold before this notice was given, and at least four months before Hernandez was cited.
’The writ of sequestration, issued in the usual form in a suit by plaintiff against his lessee, in executing the writ a notice given to third person will not make him a party to the suit and compel him to deliver the proceeds of property properly sold, and for which he contended he held a superior claim.
The plaintiff earnestly contends that the lessor’s privilege should be construed as in the seizure of property by the sheriff on which the lessor has a privilege.
That officer holds the property or the proceeds of its sale subject to the legal rights of the creditors. It is in that case the possession of the law for the protection of their rights. It is not in commerce to the detriment of the creditors, but is held that their right may be determined.
In any case a privilege is lost if the property can no longer be identified. But when in due course of business, property is sold and the proceeds are applied to the payment of the pledge to a creditor, without objection after the fifteen days succeeding its removal, Articles 2709 of the C. C. and 288 C. P. apply.
When the case was tried on its merits, the following entry was-made: “ Counsel also offers and introduces in evidence the testimony of Charles H. Hernandez, taken in this suit in open court, on January 21, 1887,” i.e., the testimony received on the trial of the discontinued rule.
We have not given any effect to this admission, for the reason that it was part of the evidence on a rule discontinued.
An admission is not reproduced when the testimony of a party to. *1085the suit is offered and admitted without any reference to the admission of counsel on the trial of a previously discontinued rule. The offer of the testimony of a witness taken in another case does not carry with it an admission of counsel of record.
It was not the evidence of the defendant in rule that was offered as admitted, but his testimony as a witness.
“The testimony is a species of evidence by means of witness.” The broader term, evidence, includes that which is given by witnesses or afforded by documents.
If the admission on rule were before the court, what would it prove? That for the purpose of the trial of the rule — not as a matter of fact — “the sugar was shipped from Banckér plantation on the day it was received and sold by Hernandez.”
The admission must be given effect as a whole, which amounts to the following:
That, not as a matter of fact, bi^t for the purpose of the trial of the rule, sugar was shipped, etc.
This does not cohfliet with the testimony of the uncontradicted witness, that the crop was removed from the plaintiff’s place more than fifteen days before it was shipped to the merchant.
The plaintiff’s privilege was lost.
On an application for a rehearing by plaintiff, an oral argument was heard. The case having been considered, the previous decree of this court may be set aside, and the case decided without granting a rehearing.
It is now ordered, adjudged and decreed that our former decree be set aside, and that the judgment of the District Oourt appealed from is affirmed at appellant’s cost.