The plaintiff having obtained a judgment against Stewart, Morton & Co., and another against Williams and Kellar, had his executions levied on a foundry and its contents, in the Faubourg St. Mary, which, after the issuing and dissolution of various writs of injunction, was, with its implements, stock and furniture, sold by the Sheriff. The proceeds being in his hands, A. G¡ Blanchard presented his claim, alleging that he was the proprietor of the foundry, and had rented it to the defendants, and claimed $1850, as being due for rent, with a privilege on the proceeds of the property sold, for that amount. He claims rent at the rate of $100 per month from the 1st of September, 1840, to the 1st of August, 1841; and from the latter period to the 31st of December of the same year, at the rate of $150 per month. It is admitted that the lot of Blanchard adjoins that of Kellar, which was sold; and that it has a fronl of sixty feet, and formed a part of the foundry. The office, and pattern shop were on it, and a number of patterns, with a variety of materials, tools, and other articles, which are specified in an inventory made and filed in the case. On the 1st of August, 1839, N. Benoist, acting as agent for some person whose name is not mentioned, rented to Stewart, Morton & Co. the foundry, known by the name of St. Mary, which is represented as being on a lot having sixty-four feet front on Tchapitoulas street, at the rate of $100 per month, the lease to continue for two years, and the rent payable monthly, under a penalty of the lease being declared null, if more than two months rent is at any time in arrear. This lot is not shown to be the property of Blanchard ; and the probability is, that it is not; as it is not of the same size with that admitted to be his. Gothiel, a witness introduced by Blanchard, says, that he was the owner of the foundry for some time in the year 1841. That
It is further shown that there has been a great deal of litigation in relation to this property, of all which, Blanchard was cognizant; yet, he never asserted his claim, although rent for seventeen months was owing, according to his account.
The Judge of the Commereial Court was of opinion that the claim was not founded in good faith ; that it was very extraordinary that Blanchard never asserted it during all the litigation that was going on between Powell and Kellar, and Williams and Benoist and Gothiel his locum tenens, although he was the son-in-law of Benoist, and lived in the house with him. He therefore dismissed the claim with costs, and Blanchard has appealed.
The answer to the claim set up; in plain terms charges the claim to be simulated. It is alleged that Blanchard was a partner, or otherwise interested in the foundry. That if he was not, and had a claim for rent, he has lost his right to any privilege by his neglect to assert his claim, and permitting fifteen days to expire after the property went into the possession of other persons.
It is the duty of the intervening party to make out his case sa
Judgment affirmed<