6 La. Ann. 112 | La. | 1851
The judgment of the court was pronounced by
Several creditors of Brown having attached his property and obtained judgment, levied their executions upon the contents of a drug shop kept by him. Raunis then filed a claim of privilege. The privilege claimed is that accorded by the article 3158 of the Civil Code “ for the salaries of clerks, secretaries and other persons of that kind,” and which is also spoken of in articles 3181 and 3219. There was judgment in favor of Raunis in the court below; and the other creditors have appealed.
The claim of Raunis arose as follows : Raunis had employed Joseph Nicolas since the year 1848, and he was still in the employ of Raunis at the time of the trial of this cause in September, 1850. The nature of his employment is thus stated by Nicolas, in his examination as a witness for Raunis in this cause. “The nature of deponent’s contract with Mr.Raunis was, that deponent would do any work as bookkeeper required by Mr. Raunis. This included not only Mr. Raunis’ own bookkeeping, but also what he, Mr. Raunis, would procure from other houses. Mr. Raunis requested deponent to do some bookkeeping for John R. Brown. Deponent posted up Mr. Brown’s books from March, 1849, to January, 1850, and made the accounts up to March, 1S50, from March, 1849. Had deponent undertaken the work for himself, he would not have charged less than two hundred and fifty dollars.” Cross-examined on part of plaintiffs in execution: “Air. Raunis owns a plantation; but lives in this village. Mr. Raunis has not been a clerk to deponent’s knowledge since he, deponent, was in his employ. He posted up Mr. Brown's books by intervals. He took the books, he believes, in September; but the posting was behindhand since March, 1850. He always took the books to post them at his house, or at Silvain Raunis’ store. No part of the compensation coming from this work done for Mr. Brown, is to be given to witness. Witness is a notary public and surveyor. At the same time he was posting up the hooks of Mr. Brown, he was also posting the books of the firm of S. T. and L. Raunis. He looks exclusively to Mr. Raunis for the payment of his labors in posting the books of Mr. Brown, and this on his yearly contract for his services as above mentioned.”
It is obvious, that Nicolas had no privilege upon the property of Brown, because he was not employed by Brown, and had no contract with him. Raunis cannot, therefore, claim as subrogee of Nicolas. The contract was between Raunis and Brown, and the question is, whether a person thus supplying to another the services of a clerk, has a privilege under the article above mentioned.
Hence, it has become a familiar doctrine in our reports, as well as in the jurisprudence of France, that privileges are stricti juris, and that they are not to be extended from one case to another. The argument from analogy is not permitted in matters of privilege; for it would insensibly lead to the creation of a multitude of preferences, and consequently to abuse. As a learned commentator has properly observed, il n’appartient qu’au legislature, et non au juge, d’etablir des causes de preference, s’il le croit raisonable, parce qu’il n’appartient qu’á luí de sortir du droit commun.
Most of the claims which are mentioned in article 3158, are a class of claims which the lawgiver has thought proper to favor from considerations of humanity and public order. Servants and clerks who are protected by this article are a class of persons who are usually dependent for their support upon their wages or salaries. Because the law, acting upon these considerations, has thought proper to protect the salary of a clerk, we have no right to extend this protection to a person who, having employed this clerk, lets out his services to another. Daunis, not the clerk, is the creditor of Brown, and Daunis is not a clerk; he has, therefore, no privilege.
But the plaintiffs in execution are entitled to a preference, having acquired a privilege by the seizure under fieri facias. C. P. art. 722. As to the motion to dismiss this cause for want of jurisdiction, see Coll v. O’Callaghan, 2d Ann. 190 ; Hart v. Lodwick, 8 L. R. 167 ; Buckner v. Baker, 11 L. R. 462.
It is therefore decreed, that the judgment of the district court be reversed ; and that the opposition of Daunis be dismissed, he paying the costs of opposition in both courts.
