
    Gasquet et al. v. Robins.
    Sheriffs were liable,before the stafc. of 7 April, 1826, s. 17, to the party injured, for any damage sustained by their illegal acts or neglect. That statute gives an additional remedy in cases for which it provides; but it cannot be construed as subjecting the sheriff to the payment of the amount for which a Ji.fa. was issued, as a penalty for a mere failure to return the writ on or before its return day. It provides a summary remedy,by motion, after ten days notice, in cases of failure to return writs of Ji. fa. on or before the return day, or to pay over money received tbereon to the party entitled to receive it, orto his attorney, unless good cause be shown for such failure, as the inability of the sherifF to effect a sale before the return day, or that the writ had been enjoined, or payment of the sum collected suspended by order of a-competent tribunal'.
    The return on a fi- fa., made by a sheriff sifter the return day, that lie had demanded of the debtors money to satisfy it, hut that they refused to' give either money oí property, will not exonerate the officer from liability under the stat. of 7 April, 1826, s. 17. On the refusal-of the debtor to satisfy the writ or to give up property, the sheriff should- have called on the' creditor to point out property. C. P. 726, 727. It is only where the debtor has made a surrender of his property, that this dem'and becomes unnecessary.
    Where a sheriff) by whom a twelve-month's' bond has! been taken for the price of property' sold undor execution; neglects to return the writ, and retains the bond in his hands for more than eleven months,- and until,-in consequence of his failure to return it, it is destroyed, he; will he liable to the creditor for its amount. The bond belonged to the creditor, who had a ight to require its delivery upon- paying the c’osts; and the return of the writ would have nfonned him that a bond had been taken. C. P. 716.
    A sheriff condemned to pay to the creditor the amount of a fi. fa. in consequence of his neglect, is entitled to be subrogated to the'rights'of the latter against- the defendant in execution'.
    APPEAL from- the District Court of East Feliciana, Johnson,- J. This suit' was instituted to recover from a former sheriff the amounts for which certain executions were issued in favor of tlie plaintiffs, the sheriff having failed to' return them on'or before their return days. There was a verdict and judgment in favor of tlie plaintiffs for $>4,793 06, from which the defendant has appealed. Tlie material facts of this case will be found iu the opinion of the' court, infra.
    
    
      Winter and' II. A. Bullard, for the' plaintiffs.
    The right to recover is given by the act of 7 April, 1826, sec. 17. The act of 1826 imposes, as a penalty for' neglect to- return the writs, the amounts specified- in them. It does not merely give an action for damages actually sustained ; that remedy existed before. The courts cannot mitigate the penalty, nor enquire what actual'damages'may have' been suffered. The act i's highly penal, but it is founded in public policy, and' was called for by a great evil. The act of 1826 was passed subsequently to-the promulgation of the Code of Practice, and was not repealed by the act of 1828, which abrogated only such rules of practice as existed prior to the adoption of the Code.
    
      Lawson, for the appellant.
    The sheriff is the agent of the plaintiff. Tho' loss sustained by a principal-, in consequence of the negligence of the agent, is the measure of the latter’s liability. 1 Livermore on Agency, 398-9. Russell v. Palmer, 2 Wilson, 326. Purviancev'. Angus, 1 Dallas, 1801 Story, Agency, ch. 3, § 164, 165, p. 177. Pothier, Oblig. nos. 159, 160. Shepherds. Johnson, 2 East. 210. Conard v. Nieoll, 4 Peters, 291. 6 Peters, 282. 2 Wilson’s-Rep. 325. 3 Martin, 478. Dupuy. v. Barlow, 4 Mart. N. S. 243-. Clarkev. Wrightr 5 Marti N. S’. 124. Stinton v. Buisson, 17 La. 571. Bonnabelv. Bouligny, 1 Rob. 294. Union Bank v. Thompson, 8 Rob. 227. Prior to-the act of I826y the law in reference to the returning of writs was held to be merely directory. See Code of Practice, art. 279. This court say that: “ The provisions of the Code of Practice which require the judge to.fix the amount of the bonds to betaken on a writ of sequestration, and the- sheriff to return it into court, are directory only. They do not authorise a recourse on the sheriff, for neglects from' which the plaintiffs receive no injury. See Vawter v. Morgan, 6 Martin's N. S. 46. The act of 1S26 was repealed by the stat. of 25 March, 1828, s. 25.-See Jemison v. Wamaek, 5 La. 4'94.
   The judgment of the court was pronounced by

Kins, L-

The plaintiffs in this action obtained three judgments against parties residing in the parish of East Feliciana, under each of which a writ of fi. fa.was issued and delivered to the defendant, then sheriifof that parish, who failed-to return them within the prescribed delay. It is contended that, by reason of this omission, the defendant lias rendered himself unconditionally liable for the amount of those judgmonls, which liability it is the object of this action to enforce. The defendant denies that the plaintiffs have sustained any injury from his acts, and avers that the defendants in execution, against whom one of the writs was directed, were notoriously insolvent at the date of the writ; that under each of the other writs, a twelve-months’ bond was taken, which bettered the condition of the plaintiffs. There was a judgment against the defendant, in the court below, from which he has appealed. After the appeal the defendant died, and his administrator has made himself a party to this proceeding.

It appears that under one of the writs in question there was no seizure made or money collected, and that it was not returnéd until after the expiration of the return day. It is admitted in the defendant’s answer, that under each of the other writs, twelve-months’ bonds were taken, on the 16th of April, 1838, both of which, it appears, were lost by a fire which destroyed the court house of the parish, in March, 1839, nearly a year after they were received. In neither of these cases, was the execution returned.

In 1841, the defendant, Robins, made the affidavit authorised by the special statute of the 20th March, 1840 (Sess. acts, p, 62, §4), that under the writ issued in the case of Gasquet, Parish & Co. v. M. & E. Boatner, property had been seized and sold, and a twelve-months’ bond taken; that both the writ and bond had been destroyed by the fire of March, 1839; and that M. Boatner, one of the judgment debtors, was not a party to the proceedings under the execution ; whereupon, a fieri facias was issued against M. Boatner, and a twelvemonths’ bond was taken for the amount of the judgment.

The section of the act of 1826, under which the defendant is sought to be rendered liable, is as follows:

“ It shall be the duty of each of the sheriffs of the different parishes in this State, to return all writs directed to them, into the clerk’s office from which they issued, on or before the return day mentioned therein, and also to pay over any moneys received thereon to the party entitled to tbe same,orto his attorney; and in default of any of the duties imposed on him in this section, he shall be" come liable to the party or parties entitled to the benefit of said writ, for the full amount specified therein, which shall be recovered, on motion, before the District Court, in the parish in which the said sheriff acts and resides, after ten days’ notice having been given to said sheriff, of such intended motion. Bul. & Curry’s Dig. p. 435.

The right to an action for damage actually sustained inconsequence of the acts or negligence of the sheriff, existed before the enactment of this statute. The legislature, no doubt, intended to grant a remedy to plaintiffs in execution, in addition to that which previously existed. But considering that statute, in connexion with principles well recognized, both before and since its passage, in regard to the powers and duties of sheriffs, we cannot yield our assent to the position assumed by the counsel for the plaintiffs, that it is to be construed as imposing the amount specified in the writ as a penalty for the mere failui’e of the sheriff to make a return within the legal delay. Such an interpretation is inconsistent with the well settled jurisprudence of the State, both prior and subsequent to the act of 1826.

It has been repeatedly held, both before and since the date of that statute, that, if the sheriff levy upon property before the peturn day of the writ, he may sell alter the expiration of that day. It is the duty of that officer, when he has made a legal seizure, to complete what he has commenced ; and until a sale is effected, or the writ has been otherwise satisfied, he can make no return, without the-consent of the plaintiff, which would release- the property from the seizure. Any act of the sheriff, after a legal levy, prejudicial to the rights which the creditor acquires in virtue- of his seizure, would render that officer liable for all losses resulting from his act. Such being the duties of the sheriff, how can he be answerable, unconditionally, for the mere failure to return a writ, which, under certain circumstances, he may be bound to hold or to execute. 3 Mart. N. S. 496. 1 Rob. 540. 12 Ib. 12.

The object of the statute appears to have been, to remedy the evil of a 'failure or refusal of the sheriff to execute writs of fieri facias, or to return those which had been executed, or to pay over the sums made under execution. In such cases, a summary remedy is given against the sheriff; who, after ten days notice, may, upon-motion, be made liable, unless he can show good cause why no return has been made, or why money collected under the writ has not been paid. The sheriff may, in. answer to such notice and motion, show that, in the exercise of due diligence, he has made a levy, buthas been unable to effect a sale; that the writ has been enjoined; or that the payment of a sum collected has been suspended by an order of a competent tribunal; and this showing would excuse his failure to make the return within the prescribed delay, and exonerate him from liability. "We consider that the defendant has shown circumstances, which discharge him from responsibility under one of the writs. In regard to the other two, his conduct is without excuse, and he must be held an-' swerable to the plaintiffs.

On the writ issued in the case of Gasquet, Parish & Co. v. Ripley & Thorn, which was returnable on the third monday of February, 1838, the following re. turn was made : “ Received this fi. fa. December 28th, 1837. This day, January 2d, 1838, I demanded of the defendants in this fi. fa. the money to satisfy it. They paid no money, an d refused to give me property to satisfy it. This fi. fa. having expired, I return it, no money made. March 1st, 1838.

(Signed) Thos. J. Robins, Sheriff.”

“ Returned and filed, March 18th, 1838. T. Hardesty, Clerk,”

It is clear, from this return, which was made sometime after the expiration of the writ, that the sheriff failed to perform his duty, which was, upon the refusal of the debtor to give up property to satisfy the writ, to call on the creditor to point out property. Code of Pract. arts. 726, 727. 4 La. 301. The alleged insolvency of the defendants in execution, did not excuse him from-making this call. They had made no surrender, and the creditor might havbeen able to designate property to be levied upon.

On the execution which issued under the judgment against Boatner, no return was made. A bond was, no doubt, taken ; but it was retained by the sheriff for more than eleven months, and until, in consequence of his neglect, it was destroyed. It belonged to the judgment creditor, who could have required its delivery to him upon paying the costs, and the return of the writ would have informed him that the bond was taken. C. P. art. 716. The loss of the bond is imputable to the laches of the sheriff, for which he is answerable.

Under the judgment against M. & E. Boatner, the plaintiffs availed themelv ot the benefit of the statute of 1840, already referred to, and issued a new execution, under which, a twelve-months’ bond for the whole amount of their judgment, was taken. This was an approval of the defendant’s act in relation to this writ, and a waiver of recourse .against him. The amount of this bond,which is $3,474 78, must be deducted from the judgment rendered by the court below..

The defendant asks, in the event of a judgment being rendered against him, to be subrogated to the rights of the plaintiffs, and this he is entitled to claim.

It is therefore ordered, that the judgment of the District Court be avoided and reversed. It is further ordered that, the plaintiffs recover from the succession of Thomas J. Robins, deceased, the sum of $1,318 '28, and that, upon the payment of that sum, the plaintiffs subrogate the said succession to all their rights resulting from their judgments against Ripley & Thorn, and against Elias Boatner, numbered 998 and 1032, on the docket of the District Court of East Feliciana: the appellees paying the costs of this appeal, and the appellant those •of the court below.  