author: Poché, J.

text:
    No. 8859.
    Buck & Beauchamp vs. Blair & Buck.
    A judgment in litigation, under an action in nullity, is a litigious right. The transfer of a portion of such a judgment by the owner thereof to his attorney, in part payment of fees due to the latter in the case, is a giving in payment within the meaning of Article 2655 Civil Code and it thus presents the purchase by the attorney of a litigious right falling under the prohibition of Article 2447 of the Civil Code.
    PPEAL from the Civil District Court for the Parish of Orleans. -C\. Houston, J.
    ®. D. White and JE. II. Fwrrar, for Plaintiff and Appellee,:
    1. A judgment is a litigious right as long as an action to annul it is pending.
    2. An attorney-at-law who practices in the Court where such a judgment was rendered and where the action of nullity pends, cannot acquire it by transfer in settlement of an agreement to collect the same on a contingent fee of fifty per cent. C. C. Art. 24, 2447.
    3. After a dissolution of a commercial firm, each and every partner must be cited individually ; and a judgment rendered upon a citation, served after dissolution, on one of the partners, is null as to the partner not cited, whether notice of dissolution was ever published or not. Brashear vs. Dwight, 2 A., 404; Montegutvs. West & Bro., 30 A., 55.
    4. Where a defendant has not been cited and an unauthorized appearance is made for him by an attorney, the judgment will he declared null. Marvel vs, Manouvior, 14 A., 3; Ridge vs. Alter, 14 A., 866.
    5. * Drafts drawn by a consignor against the proceeds of cotton in the hands of his factor, accepted by the latter and not paid by him at maturity, hut taken up and paid by the drawer, do not constitute a fiduciary debt, excepted as such from a discharge in bankruptcy, under the law of the United States. Baines vs. Adams, 33 A., 46,
    G. If a suit is pending against a bankrupt, at the time of hie adjudication, and such adjudication is not pleaded, this would not preclude the bankrupt from pleading his discharge, provided the discharge in bankruptcy is not granted until after the rendition of the judgment in the State Court. Rogers vs. Western Ins. Co., 1 A., 161; Keetingvs. Arthur Stone & Co., 27 A., 590 ; 79 North Carolina, 334; 55 Indiana, 52; 87 New York, 303,
    7. The cause or consideration of a contract is always open to explanation between the parties. Big. on Estoppel, 318-20; Saramia vs. Courrege, 13 A25.
    8. Nothing hut a clear, unambiguous promise to pay a debt discharged by bankruptcy can revive it. Neither partial payments nor the payment of interest amount to such a promise. 18 Wallace,.!; 10R.,115; 3 A., 101; 4A., 401; 5 A., 669.

      II. H. Bryan aud T. M. Gill for Defendant and Appellant:
    1. One "who purchases a part of a judgment, lias himself subrogated of record as the owner of the whole^ contests with another his title aud right to be declared- to be the owner of the whole, seeks in that contest to have the whole declared satisfied and paid, which contest is decided adversely to him, is judicially estopped thereafter, from contesting its validity or opposing the enforcement of that part not purchased by him. 2 A. 269, 667; 4 A. 416; 5 A. 18; 6 M. 279; 3 A. 619 ; 7 A. 71; 14 A. 140 ; 18 A. 64; 23 A. 764; 26 A. 185, 706; 27 A. 314; 28 A. 60 ; 29 A. 171, 353, 406 ; 30 A. 441, 1147.
    2. In ascertaining the nature of a plea, resort must be had not only to the petition, but to the documents annexed and made part of it and iu case of conflict or doubt, the latter must control and the pleadings are to be most strongly construed against the pleader. 32 A. 1029; 33 A. 732; 33 H. S. 69; 1 Este’s Pleadings and Forms, pages 157 and 140; 1 Ohitty’s Pleadings, 261, Perkin's Edition, 1876; Stephen’s Pleadings, page 333, Tyler’s Edition, 1876.
    3. A plea of payment admits the validity and existence of the thing claimed, and it is legally presumed to continue to exist until such plea be made good, nor can testimony be heard to the contrary.
    4. 'Where one alleges the payment of the whole or of the part of a judgment, though such allegation be false in fact, it is true as to him, and is an acknowledgment a/nd qualification of and acquiescence in its validity and a renunciation of these means and exceptions he might have opposed to its enforcement. 4 E. 127; 5 It. 354, 366; 23 A. 27, 524; 32 A, 947; ISA. 64; - 2 X. 265.
    5. PjitoI testimony is inadmissible to vary, alter, explain or contradict an authentic act or to show what may have been done or said before, at the time or after the making of the acts. 34 A. 767, 967.
    6. The principle of lawis that an attorney who appears in a cause, he being a sworn officer of the court, is duly authorized and did his duty. 6 A. 736; 25 A. 588.
    7. An execution of a judgment cannot be stayed or enjoined upon grounds which could have been urged as a defense before judgment.
    8. Where one claims to have a number of means and exceptions to oppose to the enforcement of a judgment and chooses to act on only some of them, he waives thereby the others; and having had his day in court, the judgment rendered on the proceedings and grounds elected, is res adjudicata and an estoppel both upon the issues presented and those which he failed to present, though he could have done so. L4 A. 575; 31 A 212; 71 Ind. 336; 79 N.Y. 634; 7 Wall. 96,110; 4 Otto (94 IT. S.) 358 ; 3 How. 102; Hempstead, H. S., C. C.440; L McLean, H. S., C. 0., 452; 18 How. 420; 12 A. 613,192; 72Ind, 466; 101 IT. S. 688.
    9. A judgment obtained during the pendency of bankrupt proceedings, said proceedings and the adjudication not having been'pleaded, cannot be effected by said bankrupt proceedings or by a discharge obtained after tbe judgment said discharge being pleaded too late, and is no bar to the enforcement of the judgment which is res adjudicata. 26 A. 41- 2; 29 A. 17, 719; 31 A 344 ; III American E. 483 (102 Mass. 472); 30 Me. 459; 36 Me. 15; 5 Cush. 86; 2 JDenio, 74; 6 Hill, 255; 21 Yt. 45; 15 Mo. 303 ; 60 Ga. 532; G1 Ga. 58, 500; 80 H. G. 329: 55 Miss. 249; 10 A. 338; In re Gallison Lowell’s IT. S. C. C., volume 2, page 72; He Ferguson, Hughes’ U. S. Court Eeports, volume 2, page 286; 52 Iowa, 158; 33 A. 778, 1094.
   Tlie opinion of the Court was delivered by

Poché, J.

This litigation grows out of the following facts and proceedings :

In the suit of Buck & Beauchamp vs. Blair & Buck, judgment by default was rendered, in June, 1871, against the defendants as partners and personally, in the sum of $11, 816 43.

In October, 1875, Sam’l H. Buck filed a suit in nullity of said judgment, alleging want of citation, want of authority in the counsel who appeared in his behalf and urging his discharge in bankruptcy; which suit is yet undecided.

In 1878, Buck negotiated a compromise of said judgment, which was transferred to G. W. Cary, a Mend of his, by the plaintiffs, for the sum of $1100 — the written transfer by the plaintiffs containing- the following qualification or reservation: “it being the true intent and meaning hereof to convey to the said G-eo. W. Cary a one-half interest in the said claim vs. Blair & Buck, the other half being owned and controlled by T. M. Grill, Esq., of Now Orleans.”

On the 7th of January, 1879, Cary presented this act of transfer to the district court, moved to be subrogated to the rights of plaintiffs and suggesting satisfaction of the judgment, obtained an order granting both reliefs. On the 21st of the same month the court ex projprio motti, rescinded its order, for the reason that Cary owned but a half interest in the judgment and could not control its entirety.

Whereupon Geo. W. Cary proceeded by rule to be recognized as sole owner of the judgment, alleging the frequent disclaimer of Gill to Own any interest in said judgment; and alleging in the alternative that Gill could have acquired no legal title to any part of the judgment, by reason of a prohibitory law inhibiting him from purchasing a litigious right falling under the jurisdiction of a tribunal in which he practiced as an attorney at law.

From a judgment against him, Gill took an appeal to this Court, where the judgment of the lower court was reversed in so far as it recognized Cary as the owner of more than a one-half interest in said judgment. 34 A. 767.'

On the 1st of May, 1881, Gill, using- the name of the original plaintiffs, issued execution for one-half of the judgment for his own exclusive benefit. Whereupon Sam’l II. Buck obtained an injunction of said execution, through a petition, in which he alleged the same causes of nullity which he had urged in his suit in nullity and added a denial of Gill’s ownership, predicated on the alleged nullity of his purchase' of a litigious right which fell under the jurisdiction of the tribunal in which he exercised his functions as attorney-at-law. Gill and the sheriff were made parties to this injunction suit, which resulted in a judgment in favor of Buck, dill’s appeal from tliat judgment is the litigation with which we are- now concerned.

In defense, appellant urged numerous exceptions, many of which have been abandoned on appeal; the points now presented being the following:

1. The plea of estoppel predicated on the fact that Back having, through a person interposed, negotiated for the purchase of the judgment, and having moved to enter satisfaction of said judgment, must be held to have recognized the validity of said judgment and is therefore estopped from setting up the nullity of the same.

2. The plea of res adjudica,ta predicated on the decree of this Court on the first rule of U-eo. W. Cary for subrogation to all the rights of Buck & Beauchamp, the original plaintiffs in the case, (34 A. 767), on the ground that the court therein disposed of the issues involved in the present proceeding.

1.

Under the conclusion which we have reached in the case, as now presented, the x>lea of estoppel has no practical application, for the reason that we shall rest our decision on the ground of nullity of (Sill’s purchase of a half interest in the judgment. In this view of the case, it becomes utterly unnecessary to pass upon the validity of the judgment as between Buck &. Beauchamp and Buck, the appellee. Conceding that he may be estopped from setting up such nullity and that the judgment is valid and executory at the instance of the parties in whose favor it was.rendered, these facts could not debar him from contesting the ownership of dill of the judgment or of any part thereof.

II.

The plea of res ad-judieata is not supported by the judgment of this Court invoked by appellant.

Our decree in that case does not pass upon or adjudicate appellant’s rights of ownership in the judgment, but in very guarded terms it merely decides that Cary is not the owner of the half interest in said judgment claimed by appellant.

The issue involving the nullity of Gill’s title was tendered by'the plaintiff in the rule, who urged the nullity of his purchase of a litigious right under the prohibition of Art. 2447 Civil Code, but the issue was declined by him and, on 1ns objection, it was specially excluded by us as an issue in the cause. Hence it was not passed upon and therefore it is not a thing adjudged.

An issue presented by the pleadings in a cause, but eliminated from the judgment of the Court, cannot be invoked in support of the plea of res acljudicata. Hoggate vs. Thomas, 35 A., not yet reported; Carroll vs. Hamilton et al., 30 A. 520; Fink vs. Martin, 5 A. 103.

On the merits of the alleged nullity of appellant’s purchase of an interest in the judgment, the record shows that his rights were acquired subsequently to the institution of Buck’s .suit tor the nullity of the judgment.

Plaintiff's right of recovery was therefore seriously contested and was beyond a doubt a. litigious right, which could not he enforced as final previous to the decision on the question of nullity by the tribunal vested with jurisdiction over the subject matter. It also appears that apqtellant was an attorney-at-law exercising his functions in the tribunal where the contention was pending and that he accepted the transfer of a half interest in the judgment in settlement of Ms professional services rendered in the case. Hence, it is clear that his acquisition has all the elements of nullity provided for in Art. 2447 of the Civil Code, which reads as follows: “ Public officers connected with courts of justice, such as judges, advocates, attorneys, clerks and sheriffs, cannot purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity and of having to defray all costs, damages and interest.”

While we are thoroughly convinced that appellant acted with good faith in his dealings with his clients and that his acquisition of an interest in the judgment afforded him the only opportunity of obtaining any compensation for his services from his clients, we cannot and > must not hesitate to apply to his case the consequences prescribed in the plain and unambiguous provisions of our law, which strikes all such contracts Avith absolute nullity.

In the recent case of Duson, curator et al. vs. Lastie Dupré et al., 33 A. 1131, we annulled a purchase by the sheriff of a court, of a tract of land, titles of which were contested in a suit pending in the court of which ho was an officer. Similar application of the rule was made in several cases decided by this Court. Watson vs. Webb, 4 A. 173; Pipes vs. Norsworthy, 25 A. 557.

Our conclusion is, that appellant has no title or ownership in the judgment which he is attempting to execute as owner of one-lialf of the same and that his execirtion was properly enjoined.

As Ave have held, in the previous case, that Cary, who avowedly acted in behalf of Sam’l II. Buck, was not the owner of that part of the judgment, it follows that we have not the proper parties before us to justify an investigation into the alleged causes of nullity of said judgment, based on the want of citation, want of authority in the counsel who appeared or with the question of his discharge iu bankruptcy.

For the foregoing- reasons, the judgment of the lower court, which perpetuated the injunction sued out by Sam’l H. Buck, is affirmed, with costs.

On AppltcatioN for Rehearing.

The earnestness with which appellant lias pressed his application for a rehearing of this cause and the ability of his brief in support thereof, have caused us to review our opinion with great care and caution.

His main complaint is levelled at our conclusion as to the nature of his alleged acquisition of the one-half of the judgment, herein enjoined; and he suggests that a correct construction of our application of the provisions of Article 2447 of the Civil Code would lead to the conclusion that contracts made between attorneys and their clients, under which the attorneys would receive a percentage of the amount recovered in litigations entrusted to such attorneys, are prohibited by our law.

We have been very unfortunate iu the use of language, if such an inference can be fairly drawn from any of our utterances in the decision of this cause. We. distinctly deny any sue!) intention and have no hesitation in recognizing the binding effect and validity of such contracts, without which many unfortunate litigants would he deprived of the only means of enforcing their rights. Wo have carefully examined and duly considered all the authorities cited by appellant in support of the legality of such agreements.

But the cases quoted present contracts where the attorney was allowed an interest in the suit in the shape of a proportion of the gains to be derived therefrom through the professional services of the contracting attorney. In the e.ase before us, we have to deal with an attorney who went into the ('aso without any such stipulation, who received, during the pendency of the. suit, a part payment of his fees in money and who subsequently acquired, in payment of the balance due him by his clients; one-half of the judgment, which was then in litigation under our action in nullity, the other half of the judgment having been parted with by his clients in favor of and for the benefit of other parties.

Hence, in the execution enjoined herein, the attorney is not onforc ing rights of his clients, with a stipulated proportion of the amount to be'realized to accrue to him, hut, as he admits himself, he is pursuing the ;judgment debtor for his exclusive benefit and advantage, as the owner of the unpaid balance of the judgment, with which his former clients are no longer connected.

The fact that he acquired that portion of the judgment in part payment of his fees earned in obtaining the same, does not make it theless a purchase.

Art. 2655 of the. Civil Code defines the giving in payment as “an act by which a debtor gives a thing to the. creditor, who is willing to receive it in payment of a sum which is due.” The similarity between the contract defined in that article and that of sale is strikingly apparent.

This is precisely the transaction which took place between Buck & Beauchamp, the debtors, and their creditor, the appellant herein; and we are painfully constrained to declare its nullity, under the provisions of Art. 2447 of the Civil Code.

We find no error in our conclusions and our decree, must remain undisturbed.

liehearing refused.

Mr. Justice Todd dissents from the decision refusing the rehearing.


source: Caselaw Access Project

author: Todd, J. PochiS, J. Fenner, J.

license: Public Domain

text:
    No. 8772.
    John Chaffe & Sons for Themselves and Frank & Co. vs. Thomas H. Handy et al.
    ITador the provisions of Axis. 7:50 C. P. a capias ad satisfaciendum cau issue against a former sheriff, whenever a judgment has been rendered against him for moneys received by him, in his official capacity and not accounted for and the fieri facias issued has boen returned "no property found.”
    Under such writ, it is the duty of the sheriff, to whom, it is addressed, to arrest aud incarcerate the body of the defaulting official and to retain it, without the benefit of tbe insolvent laws, at the expense of the judgment creditor, until the amount of the judgment, in capital, interest and costs, has been fully satisfied.
    The act of 1840. abolishing imprisonment for debt, has no effect on the act of 1841, providing for imprisonment of delinquent sheriffs and which is now Art. 730 O. P.
    Previous decree undisturbed.
    APPEAL from the Civil District Court for the Parish of Orleans. . Laewms, J.

      W. S. Benedict for Plaintiff a.ncl Appellant.

      Nieholls cf- Carroll for Defendant and Appellee:
    Frank & Co. are not parties to the judgment and though they maybe beneficially interested in it. they cannot control the execution. 5 N, S. 707: 24 A. 549. Tlie judgment as rendered is indivisible and must be so executed. Any beneficial interest ■which Frank & Co. may have therein, can only be settled dehors the judgment, through settlement by them with Chaffe <fc Sons.
    The judgment establishes on its face an interest by Chaffe & Sons therein and there is no evidence of any severance of interest, even were such severance permissible.
    If Frank & Co could have liad any standing at all in court, it could only have been as joining Chaffe & Sons; they could not originate proceedings or act singly. "Were they permitted to do so. they would control the actual plaintiff and determine the mode of execution, inasmuch as a judgment cannot be executed at one and the same time in different ways, by different persons, and inasmuch as a writ of ca. sa. (where it is known), issuing at the instance of one person, rightfully controlling the execution of a judgment, excludes, so long as it is adhered to, the issuing of a ft. fa. at the instance of another person.

    The court is without power to order the issuing of the writ, as there is no such writ known to the laws of Louisiana, and the ministerial and executive officers of the court would not know to what laws or jurisprudence to have recourse either in framing or executing it. and they are besides without authority to have recourse to any foreign .system or code of laws. Courts will not issue orders which subordinates cannot execute. High Extraordinary Remedies, § 14.
    The laws in force, in 1812 were continued by the lltli .section of the 4th article of the Constitution of 1812, only until they were repealed or abolished and by the same section the Legislature was piohibited from adopting any system or code of laws by general reference and directed by mandatory instructions to specify the several provisions of the law it should enact.
    In 1840, the writ of capias ad satisfaciendum was. in express direc' terras, abolished, and ceased to bo known thenceforward to the laws of Louisiana and could only be revived' and reinstated by a substantive direct law, specifying its various provisions, its terms, conditions and other essential elements.
    In 1841, a statute, which is now found incorporated as Art. 730 of tho Revised Code of Practice of 1870, was passed, directing that, undera certain stale of facts, a ca/pias ad satis-faciendum should be executed.
    That statute does not revive or reinstate the writ, which had been formally abolished. A mere reference to an abolished writ does not revive it. Under the 11th section of Art. 4 of the Constitution of 1812, then in force, a diroct law, specifying the several provisions of the writ was essentially necessary.

    The statute of 1841 was not self-operating ,• it required later and additional legislation, to put the writ into operation, which legislation has never been had.
    The revision of the Codes in 1870, took place whilst Articles 114.115 and 116 of the Constitution of 1868 were in effect, and those articles embody tbe same principles and provisions as those of the 11th section of Art 4 of the Constitution of 18i2.
    If there be any such writ, it can ouly issue under the precise circumstances fixed by the statute. There must be as ». basis for the writ a judgment in which it is decided and expressed as part of the judgment, and shown on the face thereof that the judgment was rendered against the sheriff as such — that it was for money received by him in his official capacity, that it had been converted by him to his own use. or not accounted for. Carpentier vs. "Willett, 6 Busworth, 25.
    Unless a person has such a judgment, containing such special findings and recitals, he cannot have tbe aid of a. ca. sa. in execution, and if be takes judgment against a defendant without seeking to have and actually obtaining such a judgment, he cannot, after judgment, seek to raise, by rule, issues which should have beeu raised prior to judgment, and decided and recited as decided, if the facts justified.

      A judgment rendered "without such findings and recitals, evidences either a waiver of the remedy or an adverse decision as to the facts which might authorize a capias. The demand culminating in a mere ordinary judgment for debt, closes and silences all claims to an extraordinary remedy or to any remedy, other than the ordinary remedy by a-.jf fa. to pay a moneyed judgment. After judgment, such a writ cannot- be authorized by a subsequent order rendered on a rule msi. as after judgment the judge has no power to make such an order. Carpentier vs. ‘Willett, GBosworbh {N. Y.), 25.
    The writ of ccupias ad satisfaciendum, if allowable at all against a sheriff or public officer, is allowable only when the situation is such that at the time of the rendition of the judgment and the issuing of the writ the party sued occupies official relations with the Court as a sheriff or public officer, and the judgment is found against him, go \nomvne, and officially as such, and the judgment must have been obtained in the very suit iu which the moneys have been received as sheriff, and through the penal and official summary remedy directed against an official as such.
    A person who brings against a former sheriff an ordinary action for debt on his bond, joining the sureties on the bond, and obtains an ordinary judgment for debt, in solido, is authorized to execute it only as any other moneyed judgment.
    Unless the judgment is susceptible of execution as to all the judgment debtors by a capias, it is not susceptible of execution in that way at all. A ca. sa. must strictly pursue the judgment and he warranted by it, and if the judgment be against two or more the ca. sa. must issue against all, otherwise it is void.
    Blanchard vs. Zacharrie. 15 L. 541; Casson vs. Cureton, J2 Martin. 435; Howzer vs. 'Dellin-ger. 1 Iredel (H. O. L.). 475: Judson vs. McLelland, Bush (bf, C. L,), 262.
    Tf the capias could have issued al all, it could oily have issued iu the suit of Chaffe & Co. vs. Heyner, and as one of the incidents of that suit. The plaintiffs having left that suit and instituted a new independent substantive action for debt, to which new and original parties were joined, waived any rights or claims they might have to summary and penal actions and penal and extraordinary remedies. A capias is a primary not a secondary remedy.
    The proceeding by ruléis without warrant. If the parties are justified after judgment in alleging new facts and tendering and having decided new issues as a basis for a capias, they could only do so in an ordinary action and not by or on a rule.
    This is either a civil or a criminal proceeding. If a criminal proceeding, it should he by information or indictmentand tried by jury. If it be a civil proceeding, it is in conflict with Articles 2, 5, 6, 7, 9 and 11 of the Constitution of 1879.
    The law of 1841 is highly penal. It contemplates something besides an official liability or indebtedness by a sheriff; there must not only be an indebtedness, bnt a conversion by him — a positive wrong — money must have beeu fraudulently disposed of — there must have been a fraudulent intent. Campbell vs. Creditors. 16 1 ,a. 348.
   The opinion of the Court was delivered by

Todd, J.

The facts pertaining to this controversy are briefly these:

John Chaffe & Sons caused an attachment to issue against one Ernest Heyner and had a lot of cotton seized, under the writ, as Ms property.

Frank & Co. intervened in the suit and claimed to be owners of the cotton.

During the pendency of the suit, the cotton was sold by the sheriff, under an order of the Court, and the proceeds held hy this officer to abide the determination of the rights of the parties litigant with respect thereto.

Frank & Co., the intervenors, were decided to be the owners of the cotton.

This sheriff was Thomas IT. Handy, the defendant herein. Handy failed to pay over or account for these proceeds upon demand therefor. Thereupon suit was instituted by John Ohaffe & Sons for the use and benefit of Frank & Co. against Handy and the sureties on his official bond, for the amount thus withheld and judgment was rendered against him and a number of his sureties, m solido, for $4065 80, the amount of the proceeds of the cotton. •

On this judgment a writ of fi- fa. issued, which was returned “no money or property found.”

After this a rule was taken by Frank & Co. on Handy to show cause why a capias ad satisfaciendum- should not issue and be executed against him.

. From a judgment discharging the rule, an appeal was taken by the plaintiff therein, which is now before us for consideration.

This proceeding' was instituted under act of 10th February, 1841, now forming Article 730 C. P., which reads:

“Whenever a judgment is rendered against a sheriff or other public officer, for money by him or them received, in his oi> their official capacity, and converted to his or their own use, or not accounted for, and tile writ of fi- fa- is returned ho property found,’ a capias ad satis-facienckm■ may be taken out and executed against such defendant or defendants.”

Handy excepted to the proceedings, as follows:

1. That Frank & Co. were not plaintiffs in the suit and parties to the judgment, and had no capacity to appear.

From the foregoing statement it will be seen that the cotton, from which the money sought to be recovered was derived, belonged to Frank & Co. and it was so decreed. As such owners and entitled to receive the money derived from its sale, they were parties to the suit against Handy and his sureties. It was for their use and benefit, as the real parties in interest, that the demand was made and the suit brought. The judgment was in their favor, and was such a judgment as contemplated by Art. 730 0. P., above quoted.

The second exception was:

“ If Frank & Co. had any capacity to appear at all, they could only do so as joining Chaffe & Sons as plaintiffs.”

What has been said with reference to the first exception will apply also to this. As stated, Frank & Co. were the owners of the cotton sold by Handy and were parties to the suit in which their ownership of. the same was recognized and decreed. As owners of the. cotton they alone were entitled to receive its proceeds. The judgment requiring Handy to pay over this money and fixing his liability therefor, was their judgment, with whose collection or enforcement they alone were concerned, and there is no reason why they should have joined John Cliaffe & Sons or John Ohaffe & Soils should haw joined them. The very terms of the law we have cited: “whenever a judgment is ren- • dered against a sheriff,” etc., contemplates not that the proceeding for the writ in question should lie applied for and “taken out” by a nominal plaintiff, but by the party whose money has heen received by the officer. This is manifest.

The third exception was:

“ That if they liad proper capacity, the proceeding by rule was without warrant, in law, was unauthorized, illegal and improper.”

a. To sustain this proposition, it is urged, in the first place, that the writ of capias ad satisfaciendum was repealed in 1840. If so, it. was certainly revived in 1841, for the objects and purposes contemplated by the act of that year, and has been continued in operation quoad hoc as an article of the Code of Practice. There was not the least necessity of another supplemental act, as suggested, to put the, previous one in force, nor to prescribe the form of the writ, since it was a writ which, both under the common law, as well as under our own statutes, had a technically and universally accepted meaning.

b. Again, it is contended that the judgment referred to in the. article cited, and which must precede an application for the writ in question, must be a judgment rendered in a suit against, a. sheriff, whilst in possession of Ms office and performing its functions; and that, in this case, Handy’s term of office had expired before any judgment was rendered against him. This objection is disposed of by the decision in the case of Graham vs. Swayne, 9 Rob. 186, where the doctrine is laid down — “ that one who retains money deposited in Ms hands as sheriff, after he has ceased to act as such, will continue subject to the summary process provided by law for the benefit of suitors, where such officers are concerned. By retaining money which he might have deposited in Court, he keeps up Ms official relations with that tribunal. He continues to act a.s sheriff quoad hoc, and has no right to complain of a mode of purstiit, to which he has voluntarily subjected himself.”

o. The defendant’s counsel further insists that the judgment, which alone could authorize such a writ, must be one rendered in the. same, suit in which the moneys went into the officer’s hands, and not in a separate suit against the sheriff and the sureties on his bond; and that by the latter mode of proceeding, the summary mode now sought to be pursued was waived.

The law, under which the proceeding is taken, or any other law that we are aware of, makes no such requirement. In fact, to reach the officer in this way, in the same suit in which the moneys were deposited, would be attended with difficulties and would be, in fact, quite irregular. The application for the writ in question must be preceded by a judgment establishing the defalcation of the officer, and a writ of 11. fa. on that judgment returned '¡wlla bona. These are the conditions precedent to its issuing.

The suit of Chaffe vs. Heyner and judgment therein, simply determined that the moneys arising from the sale of the cotton belonged to the intervenors, Frank & Co. There was nothing in that judgment condemning the sheriff for any default, although he was the depositary of the funds. He refusing to pay over these funds, it became necessary that a judgment should be obtained requiring him to do so. It was by no means clear that such a judgment could be obtained by rule, there is authority against it, 25 A. 360 ; but granting that it could be done, then the emergency would necessitate the filing in succession of two rules. The first to establish the sheriff’s default and fix his liability, upon which a writ of ji. fa. might issue. That done, the next to procure a judgment authorizing the capias to issue — for it will be readily seen that the two writs, from the conditions of the law, could not be demanded in the alternative — in the same proceeding; for these very conditions required that the oue writ must be exhausted before the other could be asked for. We think, therefore, that the better mode of procedure, if not the only one, to reach the end in view, was by a separate action. Such an action by the via ordinaria and after citation and the usual delays, would certainly seem to afford less ground of complaint and be less open to objection on the part of the officer proceeded against, than the quick summary method now so strongly advocated by the counsel for the defendant.

hior, can we readily see, although the refusal to pay over the money deposited with him and his liability therefor as a defaulter, is the very ground work of such action and the very ground work also of a writ of capias, that, because the sureties on the bond of the officer whose liability depends upon the very same conditions, are made parties to the suit, it not only prevents the judgment rendered therein from serving as a legal basis for the writ, but absolutely destroys the right to that remedy altogether. Such is the contention of the defendant’s counsel.

We cannot see that it detracts from the force and effect of this judgment against the officer, if his defalcation is established thereby, because the liability of other parties bound with him is fixed and decreed at the same time or in the same proceeding. The law declares whenever a judgment is rendered against a sheriff,” etc.

It does not limit that judgment to one to be obtained on a rule, or rendered against the sheriff alone, but the substantive fact to be inquired into and the only one for the purposes of the desired writ is whether the judgment established the conditions required, that is, the official delinquency of the officer in converting the money to his own use, or in failing to account therefor.

The counsel cite 11 A. 09, to sustain them in the proposition, that the, creditor by seeldng or pursuing the milder remedy forfeits his recourse to the harsher one; we have examined that decision and it simply determines that the, imprisonment of a fraudulent insolvent-debtor will not be, ordered where there, is no special prayer for so severe a measure.

d. Lastly we are told that the judgment against the, officer cannot serve as the basis for the writ in question, unless it declares in the face, of it, that the amount decreed therein was for money received by the sheriff in his official capacity and had been converted to his own use or not accounted for.

The legal purpose and intendment'of a judgment is to measure a,nd fix the liability of the debtor, or determine, the a,mount of money he, is to pajr. It would be quite anomalous under our system of practice, to have declared in the. body of the judgment, the. character and consideration of the. judgment. It is so well settled by freqnent adjudications as to have become almost elementary, that a judgment is to be construed and interpreted by the pleadiugs. 3 L. 283; 5 L. 287; 14 A. 831; 1A. 92; 15 A. 679; 16 A. 365.

We must look to the pleadings to find out what the debt adjudged is for. Looking there, what do we find? Examining the petition we see that, after reciting the facts attending the litigation about the cotton and that Prank & Oo. had been decreed the owners of it and that the cotton had been sold, it was distinctly and expressly charged (quoting) that the proceeds have not been paid over by the sheriff, that due demand for payment thereof has been made and said Handy fails to pay, notwithstanding demands, * * * and that said Handy illegally retains said proceeds and refuses to pay them over to petitioners.”

The answer is simply a general denial; the defendant puts at issue the, grave charges made against him, denies that he has received the money, denies that he. refused to pay it over, denies that he illegally retained it. There is no exculpatory fact or cause alleged, as suggested by Ms counsel might hare existed, such as that the money was deposited in a broken bank or had been paid out on account of the litigants or other special defenses urged to break the force of the charges, or to relieve the acts of the officers of their damaging character, or modify or rebut the alleged defalcation. On this simple issue the judgment was rendered and interpreted by the pleadings: it must be held, wMlst fixing the stun of the sheriff’s indebtedness, to declare the truth of the charges made, and the existence of the facts from which that indebtedness resulted. Those were substantially, that the sheriff had converted the money to his own use or had failed to aeoount for it. This judgment was followed by the rule for the capias, in which rule the conditions for obtaining the writ were charged ipsissirms verbis of the law referred to and which conditions and charges would again have to ho verified by a judicial determination before the writ could be allowed. The defendant met these reiterated charges by exceptions only, having failed to answer. These exceptions constitute the sole defense made to the rule.

A second time there is uo attempt to exonerate the officer or justify his failure or refusal charged to account for, or pay over, the funds. The objections should have been overruled and the writ demanded should have been allowed.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be- annulled, avoided and reversed and that the rule be made absolute at the cost of the defendant in both courts.

Dissentoíg Opinion.

PochiS, J.

Believing that one, at least, of the exceptions urged by defendant should have been maintained, T cannot concur in the opinion and decree of the majority in this case.

Among other means of resistance, the defendant charges that, under the character of the judgment rendered against Mm, he is not amenable to the provisions of the law invoked by plaintiffs.

The writ under consideration is in its nature a penal remedy, and should not be granted in doubtful cases. The laws which provide harsh remedies must not be extended beyond their clear intent and contemplated scope, and must be strictly construed, especially when their application involves the liberty of persons.

Tlio ordinary mode of executing judgments is by means of the writ of fi. fa, which is leveled exclusively at the debtor’s property; but in cases where the conduct of the debtor is fraudulent and borders on criminality, the law provides a more vigorous and harsher remedy, which extends to the person of the recalcitrant and dishonest public officer.

Under a proper construction of the remedy provided for in Article 730 of the Code of Practice, the judgment condemning the sheriff to pay the money claimed of him should be rendered in the case in which the officer received the funds which he is accused of illegally withholding. The theory of the law is that, as the officer of the court which has control of th.e funds in litigation, he becomes the depositary of the things involved in the suit, and the remedy to enforce his responsibility therefor is one of the incidents of the controversy. Hence, in the suit of Chaffe vs. Heyner, the party who was adjudicated to be the owner’ of the proceeds of the cotton had the authority to demand an immediate payment of said funds from the sheriff, and at his bidding the power of the court would have, been exerted to compel, even by imprisonment, the performance of the sheriff’s dirty. In the case of Graham vs. Swayne, 1 R. 186, the party entitled to the. funds proceeded in the case, by rule against the sheriff, and obtained judgment. This mode was specially justified by tbe Court.

But instead of invoking this vigorous proceeding, the party had the option in law to treat the sheriff as Ms debtor, on account of the funds adjudicated to him, and to enforce payment against the officer and his sureties by means of a direct action and through the recovery of a judgment against them m solido.

In choosing to follow this more pacific course, and concluding to rest their chances of recovery on a civil suit, plaintiffs must he understood to have waived the right of exercising the penal remedy which the law had tendered to them in the pursuit of their rights which were involved in the first or original suit.

“ The presumption is, when a party fails to invoke such a remedy that he waives it, and the defense is conducted accordingly.” Leland & Co. vs. Rose, 11 A. 69.

By their conduct they have elected to meet the defendant face to face on a plane of equality, and to look for the enforcement of their claim against him to Ms property and to his sureties. Hence, they have severed Ms responsibility from the original suit aud have thus eliminated his official character from the controversy. The law must therefore restrict the strife to tlie grounds and to the form selected by the plaintiffs themselves, and it does not favor the capricious return of a creditor to a remedy which he had manifestly waived.

I therefore conclude, with the District Judge, that the plaintiffs in this rub' were not entitled to the harsh remedy of imprisonment of this defendant.

Mr. Justice Fenner concurs in this opinion.

Os REHEARING.

Under the pressure of an earnest application for a rehearing, charging that our decision had done the petitioner great legal wrong and injury, we made it our duty to grant the prayer, although not convinced of having erred. Benefited by an extended oral argument, in which able counsel have left no stone unturned, we have thoroughly reexamined the matter previously considered, but have been unable to alter our convictions.

The objections made by defendant to the issuance of a capias ad sat-isfaciendum against him are innumerable and sound more like arguments ab inconvenient,i than as real defense to the merits. They appear mostly in the oral and printed discussions and are in excess of the exceptions and answer, based on technicalities, which were filed to the rule for the remedy.

The exceptions were taken up and disposed of seriatim. We have reviewed the several rulings made on them and have no occasion to question their correctness.

We think proper to add, however, on the exception as to the form, that the decision in Graham vs. Swayne, I R. 186, made in 1841, was not, as claimed, rendered on a rule against Charbonnet as sheriee, but against Mm as “formerly the sheriff of the parish of Jefferson,” p. 187, and that the same summary proceeding against a former sheriff was further sanctioned by this Court in 1855, in Miller vs. Roy, 10 A. 744, under the second Constitution which followed that of 1812, to which reference was made in the argument on the rehearing.

The defense, that the defendant Handy should have been, but was not, sued and condemned, as sheriff) can have no effect to place him beyond the reach of the remedy invoked against Mm.

To sanction such a construction of the law would be to put in the power of a dishonest sheriff; after receiving large amounts of money and converting the same to his .own use, to shelter himself against suit and prosecution by simply resigning immediately after the breach of trust and embezzlement. lie would sometimes work a, hardship on litigants by requiring from them an impossibility. In the ease at bar, how could it be demanded when the final judgment on rehearing, recognizing Frank & Co. as the owner of the cotton and consequently of its proceeds, was rendered in April, 1879, many months after Handy had ceased to he sheriff?

We do not consider that it was incumbent on plaintiffs to have proved anything beyond what they have established. If the defendant had any justification or exoneration to set up, he should have announced and proved it. The burden was upon him and not upon the plaintiffs. In this he has signally failed.

There can be no doubt that imprisonment for debt has been abolished against ordinary debtors; but the power which luis put it out of life, in 1840, in such cases, had the virtue of establishing it, as it subsequently did, in 1841, against a different class of debtors, public, officers, actually or formally in office, in order to compel them to an observance of their duties, to a satisfaction of the trust and faith reposed in them by the people or the Executive.

The repealing act of 1840 can .surely have no effect on the subsequent act of 1841.

The law invoked may he deemed a harsh one by the defaulting officials who, in their official capacity, have received in trust the money of others, whose forced legal agents they are and who afterwards divert the same and fail to account for it and return it when called on to do so; but its harshness, whatever it be, does not seem to have boon sufficient to deter misfeasance in office and to enforce a performance of duty. The harshness of the law can always be avoided by a deeper regard and clearer discrimination of the rights of others to property in legal custody, under the protection of a solemn oath and of implied faith and reliance.

Whatever the law he in its rigor, it is our duty to apply it as we iiml it on the Statute Book. Diwa lex sed lex.

Articles 730 and 767 of the present Code of Practice, prescribe the remedies to which parties claiming money received by sheriffs are entitled to coerce payment.

The first article refers to cases in which the money was received by sheriffs acting officially, where the proceeding is against one who actually is, or formerly was, sheriff, and where a judgment was rendered and the fi. fa. thereon returned “ nulla bona?

The second article refers to cases in which payment may not, as yet, have been rendered and in which the delinquent is still in office, the penalty being not only twenty per cent interest, but removal from office •

In either case the remedy can be claimed by rule, and where it is shown that the money was received in an official Capacity, by one who has failed to account for it, that judgment was rendered for it, that execution has issued and is returned “ no property found,'' the relief must be allowed.

It is clear that, as Handy was not in office when the rights of Frank & Co. were ultimately recognized by this Court, it was impossible to have proceeded against him for his removal under art. 767, C. P. It is equally evident .that, if Frank & Co. could not have taken coercive steps under art. 730, C.P.,tkat wholesome provision of the law would be a dead letter and they would have had lights which no remedy could have enforced.

It is error .to suppose that Handy was entitled to a trialjoy juiy ou the rule for a ea. sa. In the first place he did not ask for a jury. In the second, he did not plead justification of failure to account. In the third, he would not have been entitled to a jury in a summary case, in which the law allows none. He might have asked one, in the suit for the money, as by setting up the claim via ordinwria, the plaintiffs had opened the door for such prayer. The proceeding by rule was liberal, fair and legal.

It cannot be claimed, from the fact that the plaintiffs did not formally ask, in the suit against Handy, that their right be recognized to enforce the judgment, when obtained, by eapias ad satisfaciendum, that they have waived the remedy. As well might it be argued that in ordinary cases, in which a money judgment is sought against ordinary debtors, the plaintiff should specifically ask that his right to a fieri facias be' recognized, or else that their right to the writ shall be considered as abandoned.

The law provides for different modes of executing judgments, independent of any prayer for the same, and .it allows its writs, although no demand was formally made ab initio for them.

It is worthy of note that the remedy invoked in this instance and which was created in 1841, immediately after the abolishment of imprisonment for debt, is explicitly provided for, not only in article 730 of the present Code of Practice, but is also to be found, ipsissimis verbis, in two sections of the R. S. of 1870; one as No. 3444, under the heading of Sales, and another as No. 3613, under the title of Sheriffs; a circurn-. stance clearly indicating the intention of the Legislature to retain that mode of coercion of payment against delinquent officials as a conspicuous feature of our legislation.

The complaint that the writ of capias ad satisfaciendum is not defined by any law now in force, is not founded and cannot defeat the application of the remedy sought.

The writ was once recognized in this State as one susceptible of being issued against ordinary debtors, even after judgment. Such debtors can, even now, in certain eases, be arrested and confined until judgment. The writ which now can issue against delinquent officials is in its character and nature, in its purpose and object, the same, and is to be regulated in the same manner as that which formerly issued against ordinary debtors after judgment — with this difference, that the latter could be released from custody by making a cession to their creditorsj while the former, as unfaithful depositaries, being deprived of the benefit of the acts passed for the relief of insolvent debtors continue in custody at the expense of the judgment creditor until the debt has been satisfied. R. S. see. 1809 and sec. 92.

Under the legislation previously in existence, the judgment creditor had the right, where no property of the debtor could be found, to qpply to the cleric, whose duty it was to deliver it to him, for an order to imprison the body of the debtor (a capias ad satisfaciendmn,) until he shall have made a cession of his property to his creditors and obtained a discharge, in conformity with the act for the relief of insolvent debtors, in confinement. Under this order, it was the duty of the sheriff to confine the body of the debtor, unless he paid the amount of the judgment with interest and costs, and unless he took the prison limits. Grenier, C. P. Art. 726, et seq.

In cases like the present one, the writ is issued by the clerk and is to be executed by the sheriff, if against a former sheriff, or by the coroner if against an actual sheriff, according as the defaulter is a former or an actual sheriff.

Courts of justice have, as a rule, the right and power to incaicerate officials under their control and to detain them until they have complied with their duties, as is illustrated by the provisions concerning executors and other administrators, of tutors and curators. C. P. 1011, 1012.

Article C. P. 730 is the law governing this case and it provides for the remedy to which the plaintiffs are entitled.

In conclusion, we must state, that we have made it our duty, on the reexamination of the case, on the rehearing, to give it a more thorough consideration in view of its importance, the more so, as we had not deemed necessary to answer all the objections made to the proceeding, which was for the first time brought to judicial attention for .enforcement. We might have simply adhered to our previous conclusions, but we have preferred to show that the matter had again received our serious consideration and had been once more thoroughly investigated, however prone we may be to the belief that the ruling will not qrrove consonant with the views of the party cast in this controversy.

We find no error either in the opinion or judgment heretofore delivered and can alter neither.

It is therefore ordered that our previous decree remain undisturbed, at the cost of appellee, who shall pay costs in both courts.

DisseNting Opinion.

Fenner, J.

The Article 730, C. P., tinder which the present remedy is invoked, only authorizes it when “ a judgment is rendered against a sheriff or other public officer, for money by him or them received, in Ms or their official capacity, and converted to his or their own use, or not accounted for, etc.'' It evidently contemplates an intentional wrong, a criminal conversion by the officer.

In the suit upon the sheriff’s bond on which the judgment here was rendered, no such allegations were made or issue tendered and it cannot be said that the judgment is for money “converted to Ms own use or not accounted for” by the sheriff. The last words obviously mean, not such accounting as would exempt him from liability to the debt, but such as would excuse him from intentional wrong, of which many examples may be conceived, such as robbery, misappropriation by agents, etc. Had such issue been tendered, defendant would have been entitled to a trial by jury thereon, and I know of no provision of law under which he can be deprived of such right by a summary proceeding like that taken herein, in a matter concerning his personal liberty.

For these reasons, as well as for those contained in the original dissenting opinion herein, I dissent from the present opinion and decree.

M.. J. Poché adheres to his original dissenting opinion and also concurs in this opinion. _


author: Fenner, J.

text:
    No. 8045.
    W. S. Campbell vs. A. Lambert & Co.
    An agreement by which one party engages to deliver to the other such quantities of coal as the latter may require during the year “to the extent of sixty thousand barrels with privileges of twenty thousand move.” at a stipulated price, but containing no obligation on tiie part of the latter to take or pay for any stipulated quantity, is a nudum pactum, from the performance of which the promisor may, at any time, withdraw.
    One promise may be a good consideration for another promise, but there must be a mutuality of engagement.
    A PPEAL from the Fifth District Court for the Parish of Orleans, Bogers, J. --

      Singleton, Browne & Ohoate for Plaintiff and Appellant.

      Ohas. S. Bice and T. Gilmore & Sons for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff and defendants entered into the following agreement:

“ARTICLES OP AGREEMENT
“Entered into this first day of January, 1879, eighteen hundred and seventy-nine, between A. Lambert & Co., of the one part, and W. S. Campbell of the other part, witnesseth that the said A. Lambert & Co., for, and on the behalf of themselves, and the said W. S. Campbell of New Orleans, for himself, have mutually agreed with each other, as follows : That the said party of the first part shall furnish and deliver to the said W. S. Campbell, of New Orleans, such quantities of Pittsburg coal as may be required by the party of tho second part, during one year, from, the first of January, 1879, to the first of January, 1880, to the extent of sixty thousand barrels, with the privilege of twenty thousand barrels or more, to be delivered with dispatch, in such quantities and at such places within the city limits as may be designated by the party of the second part. That the party of the first part shall receive for each and every barrel of Pittsburg coal, thirty-eight cents per barrel, payable at the end of each month.
“This done and signed in duplicate and good faith, this 31st day of ■ December, 1878.
( Signed ) A. Lambert & Co.,
W. S. Campbell.”

A striking similiartj' will be observed between this document and the one sued on in the case of W. S.- Campbell vs. J. P. H. Short, No. 8069 of the docket, recently decided and not yet reported.

It is further observable that tho party who there resisted, here demands, enforcement of the letter of his bond.

In the present case, from January to June, the price of coal was such that defendants could have supplied coal under the agreement without loss. During this period, plaintiff ordered of them less than 1500 barrels. Prom June 1st, coal began to advance, and, on 1st September, ] 879, a disastrous storm occasioned the sinking of a large portion of the coal-fleet lying at this port. This caused a large advance of prices and a eoresponding increase in the size of plaintiff’s orders on defendants. The latter, however, struggled to comply with their agreement, actually delivering during the year, a total of 33,345 barrels. At last, in November, plaintiff having ordered the delivery of 500 barrels per day, for twelve days, at his own coal 3rard, defendants refused to comply. Plaintiff then claimed delivery of the balance of tho entire 80,000 barrels mentioned in the agreement, and, on refusal by defendants, brought the present suit for $28,926 10 (besides other items) being for sixty-two cents per barrel on 46,655 barrels undelivered, that being the difference between the contract price and the price at date of demand. Plaintiff claims that, under the unambiguous letter of his contract, he was entitled to demand, and defendants were bound to deliver, the entire amount of coal mentioned in the contract, whenever lie chose to make the demand. Defendants, on the contrary, say that, the plaintiff was a retail delear in coal, supplying consumers, and that the true meaning and intent of the contract were that plaintifi’s orders should only be for the purpose of supplying his consuming customers and to the extent necessary for that purpose.

.It is not necessary to resort to construction, though there is not wanting evidence, in the record, to sustain the view of defendants.

But, ou. plaintiff’s own theory, it is manifest that the agreement is a michmi pactum. We scan its provisions in vain to find the imposition, on Campbell, of any obligation to take or pay for any amount of coal whatever. He undertakes nothing except to pay, at the end of each month, for such coal as he may have chosen to order. One, promise may be a good consideration for another promise, but not unless there, is an absolute mutuality of engagement, so that each party has the right at once to hold the other to a positive, agreement.” 1 Parson’s Cont. p. 448.

Thus it has been held that a written agreement to give A the refusal of the lease of a farm, at stipulated rent, with no agreement ou the part of A to tak<^ it, and no other consideration, is void. Burnet vs. Bisco, 4 Johns, 235.

So, a contract in writing to convey lands, at a fixed price, and within a stated time, where the other party did not bind himself to take and nothing was paid or agreed to be paid by him, was held void. Bean vs. Burbank, 16 Me. 458.

Again, where the purchaser at an executive sale, gave the defendant a written promise to reconvey upon the payment of a specified sum by a day named, but the defendant did not bind himself to make such payment, the promise was held to be without consideration. Mers vs. Franklin, 68 Mo. 127.

The following case is yet more exactly in point, viz: it was held that a written agreement under which one party was to deliver to the other prairie hay “ not to exceed two hundred tons,” payment to be made on delivery of designated installments, did not confer upon the latter party a right to enforce, delivery to the limit mentioned, was, therefore, without complete mutuality, and left it optional with each party to avoid the agreement, on giving notice, to the other, at any period during the time of delivery. Houston vs. Mitchell, 38 Texas, 85.

If the condition upon which defendants’ promise was to take effect had been the doing of something involving labor or other value, by Campbell, and upon the faith of said promise and before its revocation, Campbell had done the thing, different principles would apply, not necessary to specify here. But the foregoing cases sufficiently' show that the mere exercise of an option to exact the performance of a promise, does not alter the situation of the parties and does not prevent the promissor from exercising his right, of refusal.

The authorities quoted are sound and applicable to our law.

On these grounds we hold that defendants were not bound in law to execute, the naked promise contained in their agreement, but- had the right, at any time, to refuse to proceed in execution thereof, and for such refusal, are not responsible in damages to plaintiff.

Defendants have, at considerable cost to themselves, striven to comply with an unconscionable bargain by which they were not legally bound and we think they are entitled to relief under their prayer for amendment of the judgment.

The only damages claimed outside of those for 11011-delivery, amount to five hundred and ninety-five dollars and fifteen cents, and we shall reduce the judgment to that amount.

The objection that defendants’ plea in compensation amounts to a judicial confession, has no force under the circumstances of this case which correspond with those presented in the following case and fall under its authority. Durham vs. Williams, 32 A., 962.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by striking therefrom the words “two thousand three hundred and twenty-five dollars and eiglity-five cents,” and inserting, in lieu thereof, the words “ five hundred and ninety-five dollars and fifteen cents,” and that, as thus amended, the judgment be affirmed; plaintiff and appellant to pay costs of this appeal.

Rehearing refused.


author: MANNING, J. Fenner, J.

text:
    No. 8979.
    Mark F. Bigney vs. W. Van Benthuysen and “The States.”
    One wlio habitually libels others complains with bad grace ol' being himself libelled, and therefore ■where two parties engage in a newspaper contioversy, and hurl abusive epithets at each other, they are both in the wrong, and neither can íeeover damages from the other.
    Editors of newspapers, and writers for them, have no peculiar rights or privileges in this respect, and have no moic claims to indulgence than others. They aie held to the same responsibility with any other person, and malice on their part is conclusively inferred if the publication is false.
    The law gives no countenance to the proposition that immunity can bo claimed by an editor or publisher of a newspaper, if he shall pamper a depraved public appetite by the publication of falsehoods ami calumnies upon private character, nor does it givo encouragement to the circulation of defamatory publications by protecting.the retailers of them. It protects the character of a man as studiously as it protects bis property.
    One, who is himself in fault, cannot recover damages from another who has retaliated in kind, although the latter was not justifiable in law, and this liolds good in spite of the truism that one wrong does not justify another.
    APPEAL from the Civil District Court for the Parish of Orleans. Itightor, J.

      J. Livingston and Brcmgh, Buck & DinJcelspiel, for Plaintiff and Appellee.
    1. The defendant, being president of several city railroads, is considered, iu law, a public man, and not a private citizen. Odgers on Libel, -10.

      2. That in all matters < f public interest, tlie press, to a certain extent, is privileged to comment frcely'npon the nets of public persons, and it is its duty to do so. Odgers, 40; Local Affairs, 40; Townshend on Libel, 441, 442; Eolklinrds Stnrkie, Sees. 678, 080, 087.
    3. That a libel is an offense which may be punished by fine and imprisonment; that slander is not classed among criminal offenses, liovised Statutes.
    4 That the falsehood of all defamatory words is presumed in plaintiff’s favor; that he noc-d give no evidence, that, they are false. Odgers, 107.
    5. That defendant’s conduct of his caso, even the language used by his counsel atilie time, may aggravate tlio damages. So. if the plea of justification is not proved, it will enhance damages. Odgers, 177, 485, 486, 487.
    6. "Words spoken of the plaintiff, in tlio way of his trado or profession, are actionable without proof of special damage. Odgers, 2, introduction.
    7. That words must bo understood and construed according to the ordinary meaning attached to them. Odgers, 94, 97.
    S. That under the plea of justification tlicwliolo of tlio libel must bo proved true. Odgers, 199.
    9. That the plea of justification is evidence of malico, and may bo relied upon as such by the plaintiff in aggravation of damages. Odgeis. 178.
    10. If the libel is sold indisciiminately to the public, tlio jury must consider that fact in assessing damages, for tlie defendant lias put it. out of bis power to recall and contradict his statement, even should lie desire to do so. Odgers, 298. ,

    11. That it is not necessary to prove special damages wherever the words are spoken of him in the way of his profession Odgers, 309.
    12 Justification is a most dangerous ploa and should never be placed upon record, without careful consideration of the sufficiency of the evidence to prove it, Odgers, 488.
    13. That every man has a right to his good name maintained unimpaired* This right is a jus in rein, a light absolute and good against all the world. Odgers, 1, 2.
    14. Every man has a right to be protected from defamation, as much as from assault and bodily harm. His reputation is his property, and, if possible, more valuable. Odgers, 158.
    15. That the innuendoes in plaintiff’s petition are true and correct, and as definitions of words used in tlie libel, as taken from the English dictionaries. Odgers, 94, 97.
    16. That the definition of the word “ scoundrel,” in defendant’s plea of justification, is a libel against plaintiff' and against every honest, just and honorable man, and aggravates damages.
    17. One Jibe! does not justify another. Thus, if one person publishes matter libellous in its natui o against another, tno person libelled cannot retort with a libel. Courts are tribunals to settle disputes between persons. Odgers, 307; Townshend, 504.
    18. On questions of damages, jurors are the judges. Injury to the feelings is something that cannot be measured by evidence. "Where the libel is admitted or proved, tlio plaintiff need not prove any specific damage, but tlio jury must assess the same in accordance with the gravamen ol the libel, and proportioned to tlie means of the person condemned. Sutherland on Damages, 3d vol, 043, 044, 659, 600.

      John M. Bonner and JE. H. Farrar for Defendant and Appellant.
    There has been no proof Of damages either general or special in this case.
    Tccuniaiy loss to tlie plaintiff is tlio gist of the action in slander or libel. Townshend on Slander and Libul, 3d l£d. 108, 109, § 57.
    Without proof of special damages, no action will lie fur calling a man a rascal, a scamp or a scoundrel. Odgers on Slander ai.d Libel, 1, 2, 3, 18, 109, 01, 82-84; 15 A 43; 29 A. 137.
    How, then, without such proof, can anything inoro than mere nominal damages bo recovered for putting* these mere terms of abuse in wiiting?

      The plaintiff must recover upon the strength of the allegations of his own petition, and can derive no assistance from the averments of the defendant, whether they he proved or not. 36 Am. Itep. 79; 30 A. 240; 34 A. 306; 9 La. 457.
    The office of tlie innuendo is to explain what is ambiguous or obscure, and there is no occasion for its use where the meaning’ sufficiently appears from the context.
    Its function is to point the application, not enlarge the sense. 15 "Wend. 235; Townshend on Slander and Libel, 3d Ed. 578 and note; 177 and note.
    Evidence cannot be introduced to support or explain an innuendo. Id. 590, § 342.
    In pleading the truth of the alleged libellous matter in bar of the action, it is sufficient if the sting of the charge be justified, and it is not necessary to justify each word and epithet. Ogders on Slander and Libel, 486; Townshend, do. 3d Ed, § 213, and 870, note.
    Where the plaintiff himself lias been in fault and where his previous and repeated unjustifiable attacks on the defendant have provoked the publication complained of, there can be no recovery. 2 Gamp. 72; 13 Pick. 510 ; 28 A. 710; 30 A. 241; 34 A. 333, 940; Odgers on Slander and Libel, 228, 229.
   The opinion of the Court was delivered by

MANNING, J.

This case presents the novel spectacle of an editor of a. newspaper suing another newspaiier for a defamatory publication. Its incongrnonsncss was so palpable that the claim against the defendant newspaper seems to have been abandoned, and the trial was had with its co-defendant alone.

The plaintiff is the editor of the “ City Item.” The action is for a lihel, based tipon the publication of a card in the “States” of January 23, 1882, and the damages are laid at $25,000. The jury returned a verdict of $4,750. The card is as follows:

M. IP. BIGNEY.

The above-named scoundrel, editor of the City Item, has been in the habit of publishing, in the columns of his paper, lying statements with reference to business matters, and coarse, impertinent allusions to individuals, intended as wit. When called to account, he resorts to the indecent method of representing those alluded to as bulldozers and swaggerers. Any one having respect for the opinions of others would adopt some other course of action.

This creature having no respect for anything, has no such conception of duty. It, therefore, becomes necessary to brand him thus xmblicly, that his infamous character may be known to all.

The States is authorized to furnish the name of the writer.

The plaintiff alleges that he has lived in the city since 1848, during which time, writing for newspapers has been his occupation, and is his sole means of supxiort — that he has been for four years editor of the City Item as well as president of the association that prints and publishes it, and his retention of these positions depends upon his business capacity, good name and character, which are imperilled by the publication of the “false, scandalous, malicious, and defamatory libel,” made by the defendant with the intent to “ crush, destroy, and forever injure the good name of the plaintiff, and render him an object of scorii and contempt,” — that the defendant is a merchant of large means and great influence, as -also the president of the Crescent City Railroad and other tramways connected therewith, and has a large number of employees under him, and that he relied upon these weapons, i. e. great wealth, great influence, great patronage, to ruin the plaintiff, and fashioned this libel as an instrument to accomplish his destruction.

Nothing in the card indicated who was the writer, or gave any clue for his discovery. On application to the States for the name of the writer, it was disclosed.

The answer it dmits authorship of the card, and avers that he was provoked into writing it by the plaintiff’s “repeated wanton, wicked, malicious, and defamatory articles against him,” which had been published through the City Item to this community, and which attacked his character and defamed his business — that he had remonstrated with the plaintiff for these publications in a polite note wherein he reminded him that he was a private citizen, and asked that the notoriety unwarrantably given him by the frequent mention of his name in a newspaper shoirld be discontinued — that shortly thereafter, three articles were published in the Item reflecting injuriously on him, and the corporation of which he is president, whereupon he again wrote to the plaintiff requesting a correction of the misrepresentation in those articles, and instead of making it, the plaintiff published an abusive and insulting attack upon him wherein he is vilified as “an irate swaggerer, trying his hand at bulldozing this paper,” and other like offensive language is used — and that the card, signed by three asterisks, was thereupon written by him and published as charged. The answer further avers that every man has the right to repel assaults upon his reputation and character made in a newspaper, and can employ the same channel of communication with the public to defend himself, and in so doing that he can lawfully make his “counter-publication sufficiently terse and vigorous to meet the purpose for which it is written,” and that the card was published with that view alone, and was not malicious but defensive, and so far from causing the plaintiff any damage that he admitted he could not be injured thereby, and boasted in his newspaper of the following day that “his reputation was too well established in the community to need vindication from the assaults of an anonymous slanderer.” In addition, the defendant pleaded the trntli of the alleged libel-lous matter, which it may be well to say at once was not sustained.

This is an epitome of the pleadings, so far as a petition of fifteen and an answer of twenty pages of manuscript can be condensed in the space we have given them.

The testimony took a wide range. Piles of newspapers, the reading of which must have been á sore burden oven when fresh, were injected into the evidence, and the journalistic career and personal conduct of the plaintiff were subjected to a searching investigation. One rises from the reading of the transcript with the consciousness that the plaintiff has been on trial, rather than appearing as complainant of an injury. A large part of the testimony was directed to the inquiry whether he did not habitually-vituperate whomsoever it was his pleasure or interest to assail, and refuse or omit to correct errors and misrepresentations when the truth was laid before him. Editors, and writers on the staff, of several newspapers differed in their opinions on this matter, but it is curious to observe the unanimity with which they betrayed their conviction, that however abhorrent any publication about a public or private man may bo, made too without knowledge of its truth or falsity, and even without inquiry touching the one or the other, that they make full reparation by publishing the correction of the error. It does not seem to have occurred to them that the publication should not be made in the first instance without inquiry or investigation.

Old associates in journalism of the plaintiff testify with frank sincerity that he is a fair man, and would not publish evil of another unless he thought he was justified; and that he is prone to adhere to what he has -written, and will not correct until thoroughly satisfied he has been wrong, while others attribute to him a propensity for vilification, and obstinacy in repeating it. From the testimony of the first class of witnesses it would appear that personally and in his character of man he is kind-hearted, honorable and just, while that of the other class attributes to him the opposite qualities as a journalist. A dual character is thus unfolded. We regret that we have here to deal with the least attractive side of it.

The publications made by the plaintiff concerning the defendant were offensive, and they were untrue. The information needful for the correction of them was furnished him by the defendant, and he did not give to the public the refutation thus supplied him. On the contrary ho aggravated the wrong already done by opprobriously characterizing Mr. Van Benthuysen by name. Then followed the card — a Roland for an Oliver.

“ If a man is in the liabit of libelling others, he complains with a very-bad grace of being libelled himself, and if two men are concerned in publishing monstrous libels against each other every day, there can be no claim for damages on either side.” Finnerty vs. Tipper, 2 Camp. 72. That is the language of a great judge a hundred years ago, and is as true now as then, and has been echoed judicially whenever occasion arose. “Where two parties engage in a newspaper controversy and hurl abusive epithets at each other, they are both in the wrong and neither of them should receive damage; from the other.” Child vs. Homer, 13 Pick. 510. And this is as true where one of the parties is an editor of a newspaper as where both are private persons. Newspaper editors, and writers on a newspaper staff, have no peculiar rights or privileges in this respect, and have no more claims to indulgence than others. King vs. Root, 4 Wend. 138 and other authorities cited in Cooley’s Const. Lim. 565 note. They are held to the same responsibility with any other person, and malice on their part is conclusively inferred if the publication is false. It is no defense that it has been copied from another newspaper without comment, or that the source of the information is stated at the time of the publication, or that it was made without the knowledge of the editor or proprietor, or as an advertisement or card. Cooley’s Const. Lim. 567.

The law protecting the community, and the individuals who compose it, from indiscriminate and libellous assaults of a newspaper was never more vigorously or correctly stated than by one of the most eminent courts of our country. The contention in Hotchkiss vs. Oliphant, 2 Hill, 513 was that the editor of a newspaper is at liberty to copy an item of news from another paper, giving at the same time his authority, without subjecting himself to legal responsibility, unless express malice be shown. It was conceded that the law did not, and ought not to, extend a similar indulgence to any other class of citizens, but that a distinction should be made in favor of editors on the ground of their peculiar occupation — that their business was to disseminate useful information, to publish such matters relating to the current events of the day as fell within the sphere of their observation, and as the public curiosity or taste demanded; and that it was impracticable for them at all times to ascertain the truth or falsehood of the various statements contained in other journals.

This was reducing the defense to much narrower limits than in the present case, and it was there suggested that if the law were not thus indulgent, some legislative relief might become necessary.

“ Undoubtedly,” said the Court, “if it be desirable to pamper a depraved public appetite or taste by tlie republication of all tlie falsehoods and calumnies upon private character that may find their way into the press — to give encouragement to the widest possible circulation of these vile and defamatory implications by protecting the retailers of them — sonic legislative interference will, be necessary, for no countenance can be found in the law for the irresponsibility claimed. The law reprobates the libeller, and subjects him to both civil and criminal responsibility. Tiis offense is ranked by it with that of the receiver of stolen goods, the peijurer, and suborner of perjury, the disturber of the public peace, the conspirator, and other offenders of like character. * * If an editor or publisher chooses to become the retailer of private scandal, without taking the trouble to inquire into the truth of what he publishes, the law, which is as studious to protect the character as the property of a man, will hold him to responsibility. The rule is not only just and wise in itself, but if steadily and inflexibly adhered to and applied by courts and juries, will greatly tend to the promotion of truth, good morals, and common decency on the part of the press, by inculcating caution and inquiry into the truth of charges against private character before they are published and circulated throughout the community.” Quoted approvingly in Cooley’s Const. Lim. 564-5.

It is not pretended that the plaintiff did not begin this newspaper warfare. On the contrary it is admitted and announced with a sort of truculent frankness, and both he and his assistant seem to regard their assaults on Mr. Van Benthuysen as an innocent pastime, quite justifiable and even praiseworthy.

The letter of the defendant, protesting against these assaults, and setting forth the proof of falsity of the publications, contained language as objectionable as the newspaper paragraphs, but it did not meet the public eye, and was not intended for the public. It was a private letter of indignant remonstrance, and a furious personal invective, but it furnished the proof that he had been wronged. The plaintiff’s first and imperative duty was to repair the wrong — a duty thrice due — to himself, to the party assailed, to the public. The same learned Court just quoted says, when the publisher is “advised of his error and hesitates to correct it, the case rises to one of premeditated wrong, of settled and determined malignity towards the party injured, which should be dealt with accordingly. All the charities of the law give way at such a prostitution of the public press.” Hotchkiss case est supra, 516.

This Court has uniformly maintained' the rule that one, who is himself in fault, cannot recover damages from another who has retaliated in kind, although the latter was not justifiable in law, and this in spite of the truism that one wrong does not justify another. Barrow vs. Landry, 15 A. 682; Vernon vs. Bankston, 28 A. 710; Johns vs. Brinker, 30 A. 241; Young vs. Bridges, 34 A. 333; Ludeling vs. Stubbs, Ibid, 940. And it is so universally applied that the text-writers have formulated it in the declaration that “a man who himself commenced a newspaper war. cannot subsequently come into court as a plaintiff to complain that lie has the worst of the fray.” Odgers on Slander and Libel, 228.

The lower judge refused to grant a new trial because there had already been two, the first resulting in a verdict for a larger sum, and though he disapproved the verdict upon the second trial. To use his own language, “the sooner the case reached the Supreme Court, the better for the cause of the administration of practical justice which,” he said, “had been obstructed for two entire jury terms by this pest of a suit.” Therefore,

It is ordered and decreed that the verdict of the jury is set aside, the judgment of the lower court thereon is annulled, and that the defendant W. Van Benthuysen have judgment against the plaintiff rejecting his demand, and for costs.

CONCURRING OPINION.

Fenner, J.

While the paragraphs in the City Item, prior to the card of January 21, 1882, referring to the Crescent City Railroad Company and the defendant as its president, were not conceived in a spirit of ultra x»olitoness, they pertained to matters of public interest entirely within'the province of journalistic comment and axe, in no sense, libelous or abusive. When corporations enter into contracts with a city touching subjects of such public character as the use of its streets, such contracts, their terms and obligations, and their proper execution, are fit subjects of legitimate criticism by the press; nor do I think that the president of such a corporation, who is generally the actor in the procurement and execution of such contracts, can claim immunity from the use of his name in articles upon such subjects.

While courts should not hesitate to rebuke and repress licentiousness of the press,.they should be careful not to emasculate its liberty in the exercise of its appropriate functions.

In absence of any proof of malice or intentional falsification, I think the articles, now referred to, furnished defendant no ground of legal complaint.

I seo no reason to doubt that-, liad tbe conclusive evidence of the mistakes under winch the paper labored, furnished by the defendant in his letter of January 20, 1882, been unaccompanied by the abusive and insulting language contained therein, it would have led to prompt correction and amend.

This language, however, while it provoked, did not, in law, justify the article published in the Item of January 21, 1882, in which defendant was denounced as an “irate swaggerer,” a “bulldozer,” an “arrogant blusterer,” ignorant of “ how to couch his ideas in polite and gentlemanly language,” etc.

The letter of defendant had not been published. The last-mentioned article of the Item was the inauguration of tlio newspaper warfare, which culminated in the card of defendant, which is the basis of this suit for libel.

This destroys the foundation of plaintiff’s ease., and brings him within those authorities which hold that “aman who, himself, commenced a newspaper war, cannot subsecprently come to the Court, as a plaintiff, to complain that he has had the worst of the fray.” Odgers on Slander and Libel, 228, 219.

“Where two parties engage in a newspaper controversy and hurl abusive epithets at each other they are both in the wrong, and neither of them should recover damages from the other.” Child vs. Homer, 13 Pick., 510. Finnerty vs. Tipper, 2 Camp, 72.

For these reasons, I concur in the decree herein.