
    Pailhes v. Thielen
    Tile return made by a sheriff on a fi. fa. is not conclusive against third persons. Parol evidence is admissible to explain circumstances connected with the proceedings mentioned in tlio return.
    A sheriff in whose hands a fi. fa. had been placed, levied it on certain twelve-month bonds belonging to the debtor, in the hands of another sheriff, who refused to deliver them on the ground that his costs in the action in which the bonds were taken, hadnot been paid. The creditor made no offer to advance the costs, nor propounded interrogatories to the officer in whose hands the bonds were, as a garnishee. In an action against the sheriff for damages, in consequence of his failure to advertise and sell the bonds: Held, that the officer in whose hands the bonds were seized, was entitled to retain them till his costs were paid; and that the facts show no want of diligence on the part of the defendant.
    from the District Court of the First District,
    
      Buchanan, J. Deslix for the appellant. M'oselius, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

Many of the facts connected with this action are recited at length in the case of Simpson v. Allain, decided by the former Supreme Court, in May, 1844. See 7 Robinson, 500.

Referring to the recital there made, we only briefly state, now, such facts as are indispensable to the consideration of this cause, including some that were not in evidence in that suit.

Simpson sued Madame Wiltz and the present plaintiff, on a note. Madame Wiltz was drawer; Madame PailMs was endorser. Judgment was obtained against Madame Wiltz. Simpson issued execution, and the writ of fieri facias-was returned as will presently be stated. Judgment was obtained against Madame PailMs. One Davis paid -the amount thereof to Simpson. Madame-PailMs subsequently reimbursed to Davis the amount he had paid for her.

On the same day that the payment was made to Simpson by Davis, an order of court was made, on Simpson’s motion, subrogating Madame PailMs to Simpson’s lights, on a suggestion that she, as endorser, had paid Sinpson the debt, interest and costs.

The plaintiff now attempts to make Thielen, a former sheriff of the District Court of the First District, liable, on the ground that, through his laches, Simpson failed to collect the money from Wiltz, under his fieri facias — that Simpson-consequently exacted payment of her, the endorser — that she now stands subro-gated to Simpson’s rights — and that the- sheriff is, consequently, responsible to. her for the amount thus paid to Simpson.

The return upon the writ of fieri facias, issued at the suit of Simpson against Madame Wiltz, is as follows: “Rec’d 14th January, 1843. My predecessor had seized, on the same day, in the hands of Valerien Allain, Esqr., Sheriff of the parish of Orleans, two notes or bonds, of Charlotte Gambes, favor of Augier & C. Cabowret, received by the said sheriff Allain, in the case of Adéle Mon-treuil, wife of Evariste Wiltz, v. Moreau, dated 25th June, 1842, at 12 months ;• one for $469,60, and the other for $100. No other property found to seize, after due demand of both parties. Returned 4th Monday of February, 1843.

(Signed,) A. Meynier, Deputy Sheriff. ”

When this writ was received, Thielen was sheriff: before it was returned,. Thielen was superseded in office by Lewis; and this return was made by Leivis? deputy. 'Having established these facts, Thielen offered to prove by several witnesses, what really occured in the execution of the fieri facias. The plaintiff excepted, on the ground that the proposed testimony would contradict the return. The court received it, and the plaintiff took his bill of exceptions. The court below did not err. The return was not made by Thielen, and is not evidence against him. The testimony, moreover, does not contradict, but only explains circumstances connected with .the proceedings stated in the return.

This testimony, thus excepted to, but received by the court, establishes, that Thielen having laid a siezure in Allain’s hands, called repeatedly on Attain to deliver the bonds; and to these repeated demands, Attain, as he had a right to do, refused to accede, on the ground that his costs in the suit of Wiltz v. Moreau, in which case he had received the bonds in payment of the price of property sold by him under -fieri facias, had not been paid. The efforts of Thielen and his deputies to get the bonds, were frequent and earnest. Simpson's counsel called to ask why the bonds were not advertised, and was informed that Thielen could not advertise them, because he could not get possession of them. Simpson did not offer to advance the amount of Attain's costs; he did not, before the expiration of the writ, propound interrogatories to Attain as garnishee, nor did he, or his counsel, express any dissatisfaction with the sheriff’s reason for not advertising. For what was done by his successor in office, it cannot be pretended that Thielen should be answerable; and as far as his own doings are concerned, Thielen appears to have acted with diligence and zeal, and with the knowledge and implied approbation of Simpson, the plaintiff in execution. Even if the subrogation acquired by Madame Pailhes, in the manner already stated, would extend to a cause of action of Simpson against the sheriff, Thielen, for alleged laches, which seems questionable, she could certainly stand on no better footing than Simpson; and Simpson could not, under the evidence, have made Thielen hable.

Judgment affirmed.  