The opinion of the court was delivered by
Breaux, J.The plaintiff claims two thousand five hundred dollars,, interest and attorney's fee evidenced by a note of the defendant in his favor, dated April 9, 1894, and matured November 1, 1894.
*337Crop liens were granted by the defendant on his crop to secure payment.
The first act bears the date of the note. Subsequently, a second act was granted, with the intention of supplementing the first. It bears the date of July 2, 1894, and both were recorded in September of that year.
To obtain a sequestration plaintiff alleged that the claim was due him; that he believed defendant to be insolvent and unable to pay his debts; that he was about to gather his crop and feared and believed that he would conceal, part with or dispose of them pending the suit or would send them out of the State before the note matured, to the injury of plaintiff and in fraud and violation of his legal rights. To all of which he swore.
The defendant took a rule on the plaintiff to show cause why plaintiff’s bond for a sequestration should not be increased, to cover the damages that the alleged illegal sequestration would cause.
He alleged a number of grounds:
Such as that the note does not evidence any indebtedness; that it was issued without consideration and was a simulation, that he was not insolvent and had not attempted to remove his crop.
The court refused to grant the rule.
Whereupon defendant filed a motion to dissolve the sequestration on the ground that plaintiff’s affidavit for the sequestration was false.
This motion also was overruled.
The defendant in his answer admitted his signature to the note, but alleged that he held written evidence showing the simulation of the note and of the acts of privilege and pledge.
Judgment was rendered for plaintiff for the amount claimed with privilege on the crops to the amount of one thousand three hundred and ninety-one dollars, with interest and attorney’s fee on the amount.
From this judgment the defendant appeals.
PREMATURITY.
The plea of prematurity is argued as a ground to dissolve the sequestration.
The defendant stoutly denies the debt, but does not by his pleadings raise the question of prematurity of the suit.
*338The prematurity of an action may be waived, and that plea must be interposed in order that the court may be enabled to decide as to its maturity vel non.
AFFIDAVIT FOR THE WRIT PRIMA FACIE EVIDENCE.
Moreover the case shows sufficient ground to sustain the writ of sequestration.
The requisites for the writ under Act 7th April, 1826, paragraph 9, p. 120, paragraph 7 of Code of Practice, are the same as under Art. 275, paragraph 6, in cases in which the claim is secured by special mortgage, and these have been followed by plaintiff in his affidavit for the sequestration.
The affidavit is, of itself, prima facie evidence of the facts authorizing the writ, and this presumption the defendant did not rebut by proof that it was not his intention to dispose of his property, as charged in the affidavit.
The motion to dissolve the sequestration is overruled.