| La. | Mar 15, 1851
The judgment of the court was pronounced by
The defendants kept a large tavern in the city of New Orleans. The furniture and other movable effects contained in it, being seized on execution, were sold ; and various creditors claimed privileges upon the fund. The court ordered it to be applied as follows: 1. To the payment of costs. 2. To the payment of the landlord’s claim for rent. 3. To the payment of vendors of the respective portions of the furniture. 4. To the payment of creditors who had levied executions.
These creditors absorbed the entire fund, leaving nothing for the servants and furnishers of provisions, whom the court ranked after the fourth class above named.
Howlancl was a creditor for wages ; Wood for groceries alleged to have been sold to the defendants for the St. Louis Hotel, within the previous six months, to the amount of $3906 36. They have appealed.
Wood contends that the privilege upon movables accorded by the article 3175 of the Civil Code, takes precedence of the privilege acquired by seizure under fieri facias. We do not think it necessary to decide the question, inasmuch as in our opinion Wood has not a privilege under that article. The intention of that article, we think, was to give a privilege for provisions and liquors furnished to a family or private establishment. It was an encouragement to the dealer to supply the necessaries of life to a family or individual, who otherwise might suffer, and was adopted, as it seems to us. as much in the interest of the debtor as of the creditor. The case of large supplies to a tavern-keeper for consumption by his guests does not fall within the intendment of the code. In the interpretation of the article 3175, reference must be made to article 3158, No. 5. Its language is, “supplies of provisions made to the debtor or his family, during the last six months by retail dealers, such as bakers, butchers and grocers.” In commenting upon the similar article of the Napoleon Code, Duranton observes : Le privilege étant donné pour les fournitures de subsistance faites au débiteur et d sa famille, il suit de lá qu’il n’a pas lieu pour les fournitures faites par un boucher ou un boulanger, a un aubergiste, si ce n’est toutefois pour’la portion de ces subsistances qui serait jugée avoir probablement été consommée par la famillo du débiteur, mais non pour le surplus qui a été consommé par les personnes qui ont été repues dans 1’auberge. Vol. 19, No. 65. The claim of How-land is reserved for future consideration.
It is therefore decreed, that the said Wood take nothing by his said appeal, and that he pay one-half of the costs of said appeal. And it is further ordered, that the case as to Howland remain under advisement.
Same Case.
THE appellant Howland is the assignee of the claims of several persons who were employed as servants in the St. Louis Hotel, a large tavern kept by Hodge and Johnson, in New Orleans, tie claims a general privilege on movables under the article 3172 of the Civil Code. This article, which is explanatory of the fourth class or enumeration found under the article 3158, is in these
The interpretation in matters of privilege is strict, because privileges are in derogation of common right. The general rule is that the property of the debtor is the common pledge of his creditors, C. C. 3150, and therefore privileges are to be allowed only when expressly granted by the code. Ib. 3152.
We think it was the intention of the lawgiver in the article relied upon to protect domestic servants, that is to say those employed in the service of a family or the private establishment of a person keeping house, and that the servants of a place of public entertainment were not contemplated. We took a similar view of the claim of Wood for groceries furnished for the St. Louis Hotel.
It is perhaps to be regretted that all pei’sons who earn their bx'ead by their bodily labor, have not been protected by the lawgiver; but it will be found upon examining the code that such is not the case. See also Stevens v. Sawyer, 3d Ann. 429.
It is therefore decreed, that the judgment as.to Howland be affirmed; and that half the costs of the appeal be paid by him.