
    No. 1385.
    A. C. Townsend vs. T. S. Fontenot, Sheriff, et als.
    The following statement in a judgment will operate a stay of execution: "The attorney of plaintiff in this suit declares lie has been instructel not to seize or sell said property before the end of the year.” Yagui and uncertain allegations of damages, without specification or detail, do not authorize proof. A seizing creditor will not be mulcted in exemplary damages except on proof of malice, intent to wrong, or injury and entire want of probable cause. Parol testimony can not be received to vary, contradict or explain a judgment. Attorney’s fees are allowed as damages when the injunction is dissolved, not when it is maintained, particularly in the absence of malice and probable cause.
    
      A PPEAL from the Thirteenth District Court, Parish of St. Landry. J- *- Lewis, J.
    
    
      Henry L. Garland and Estilette & Dupré for Plaintiffs and Appellees:
    A judgment is to be interpreted according- to the natural and legal imports of the terms. 12 An. 156.
    Where the terms express or imply a stay of execution, the creditor can not disregard them and issue execution.
    A premature execution and seizure of his property entitle the debtor to damages.
    A tender by a defendant is an acknowledgment of his indebtedness.
    A debtor can not bo released by the tender of the purchase price, with interest, where a litigious claim has been bought at a judicial sale. 6 An. 464.
    
      Kennett Baillio for Defendants and Appellants :
    1. A stay of execution is in effect a contract, requiring consent of both parties.
    2. Contracts, in cases of doubt, receive interpretation from the construction put upon them by the parties. C. C. 1956.
    3. Isolated words or phrases in a judgment will not control its decretal force. 14 L. 445 ; 6 R. 208; 10 An. 352.
    4. * * * If an execution issues prematurely, the party injured can not demand to have an injunction restraining it perpetuated, if his adversary has a right to obtain another execution as soon as the injunction against the former is perpetuated. All that he can,expect is to bo relieved from the payment of costs and damages, as he has hud the benefit of all the delay he was entitled to. 6 R. 17.
    5. The injunction ivas dissolved, although the party who had obtained it was, perhaps, entitled to have it sustained, because we were of opinion the remedy was worse than the evil, as anew seizure must have been immediately issued. For this purpose, and for this purpose alone, the injunctions was not sustained. We have often refused to dissolve injunctions when we thought the party was immediately entitled to a new one, On the dissolution of the former, and in order to avoid expense, delay and trouble.
    In the present case the injunction was dissolved, although it was properly obtained. In such cases the party should not bo mulcted in damages, because the dissolution takes place for the sole purpose of avoiding unnecessary costs and delay in bringing this suit to a conclusion, and this party benefited thereby, can not expect ns to give damages; for if we were compelled to do so, we would sustain the injunction, and require him to begin anew. 15 L. 187.
    6. Courts adjudicate rights up to the day of trial. 5 L. 225.
    7. Unless covered by amendment seasonably made, no damages occurring after a writ of injunction is sued out are admissible. 35 An. 465, 322.
    8. A seizing creditor will not be mulcted in exemplary damages except on proof of malice, intent to wrong or injure, and entire want of probable cause. 33 An. 372.
    9. In all other eases only actual damages are allowable. Authorities.
    10. Good faith is always presumed.
    11. Plaintiffs in injunction can not tax his adversary with counsel fees as an elc-. ment of damages. I-Ien., p. 677, No. 8.
    12. Cases sounding in damages must be tried before a jury. C. P. 313.
    
      13. A father can not recover by suit in his own name and for his own account for worru of mind, trouble, vexation and annoyance to his mother, major and minor children and sister.
    11. In damage suits plaintiff should malve his ease olear and free from doubt. What he leaves doubtful can not be corrected by the court.
    30. Vague and uncertain allegations of damage without any specification or detail do not authorize proof. Hen. Dig'., p. 1111, No. 1, and cases cited; lion. Dig., p. 1153, No. 5, and oases cited.
   The opinion of the court was delivered by

McEnery, J.

This is a suit to restrain the execution of a judgment of the District Court of the parish of St. Landry in a suit entitled J. U. Payne & Co. vs. A. C. Townsend.

The ground for the injunction is that the execution was prematurely issued, as the judgment creditors had granted a stay of execution until the 1st day of January, 1890. Damages for the illegal seizure are claimed to the amount of $9000 against the judgment creditors, and the Sheriff in solido, divided as follows:

“For actual damages sustained by your petitioner by the wrongful seizure in the sum of $5000.

“ For vexation of mind, trouble and annoyance to himself, and family, and time lost by him, in the sum of $2000.

“For punitory and exemplary damages in the sum of $1000. For attorney’s fees in the sum of $1000.”

The defendants pleaded a general denial, and specially denied that there was any stay of execution granted as alleged in plaintiff’s petition, and that the statement in the judgment that no execution would issue until the end of the year was inserted merely ex gratia, and formed no part of the evidence on which the court acted in-rendering the judgment. They prayed for damages, but have abandoned the demand in this court.

The judge rejected the demand of plaintiff for actual damages, as the allegations in the petition were too vague and indefinite to admit of proof, and allowed plaintiff for exemplary and punitory damages $500, and perpetuated the injunction. The defendants have ap - pealed.

Henry M. Payne sold to A. C. Townsend the undivided half of the Anchorage plantation, part cash and the balance on terms of credit, for which notes were executed by Townsend and the usual mortgage and vendor’s privilege retained on the plantation, to secure the deferred payments.

The last two of the notes were acquired by Jacob U. Payne & Co., and they brought suit against Townsend on the first maturity of the notes to enforce payment, with recognition of the mortgage and vendor’s privilege. The defendant Townsend made no appearance in said suit. When the default was made final and judgment rendered, there was inserted and incorporated in the judgment the following statement:

“ The attorney of plaintiff in this suit declares that he has been instructed not to seize or sell said property before the end of the year.”

The defendants contend that this statement did not operate a stay of execution, that it was inserted ex gratia, and, as incorporated in the judgment, is meaningless.

On this point the defendants offered in evidence the testimony of J. U. Payne, Thomas H. Lewis and R. W. Poster, to explain the insertion of said statement in the judgment. It was properly excluded by the District Judge, as no parol testimony can be received to vary, contradict, explain or interpret a judgment. The defendants’ counsel, however, states that such was not the intention of introducing the evidence, and its effects would not be to contradict or vary said judgment, but to show that the defendants were not controlled by any vindictive or malicious motives in executing the judgment. But in this we think he was mistaken, and the District Judge viewed the effects of the rejected testimony in its proper bearing.

It is immaterial in consideration of this question how the statement got in the judgment. It was prepared and written by plaintiffs’ counsel, and must have been placed there by plaintiffs’ instructions. It is sufficient to show that it was there, and that it formed a part of the judgment, as binding and authoritative as any other recital in it.

The plaintiffs in the judgment had no right to issue execution on the judgment before the time for the stay of execution had expired. The defendant had a right to expect that the seizure of the plantation would be deferred.

The only question that remains to be determined is as to the amount of damages to be awarded plaintiff in injunction.

The plantation was seized and sold on the last note on December 28, 1889. The plaintiff in injunction had but a short time in any event to remain on the place, as he was totally unprepared to meet the payments on the plantation.

The recital of the stay of execution in the judgment inured to the benefit of the judgment debtor. There is no evidence in the record that it was the result of any concession on the part of the judgment debtor. From the peculiar wording of the language in the sentences granting the stay, it is evident that it was an indulgence on the part of the judgment creditor, which they undoubtedly believed they could withdraw. This view must also have been entertained by the court official who issued the ft. fa., or he would not have issued it in the face of a positive decree granting a stay of execution.

From the circumstances of the case, the fact of the issuing of the execution by the clerk, and the failure of the judgment creditors to seize the horses, mules and agricultural implements mentioned in the act of mortgage, we are of the opinion that there was not a wanton disregard of the rights of the judgment debtor.

There is in the record no proof of malice, wilful intent to injure or an absence of probable cause.

We do not think that the defendant is entitled to exemplary and punitory damages. The allegations in the petition for actual damages are too uncertain and inadequate to admit of proof.

The plaintiff in injunction is entitled to all necessary expenses for maintaining his possession of the place up to the time of its seizure and sale, when it passed from his possession and control. These comprise the court costs and attorney’s fees.

The demand for attorney fees can not be allowed. Such fees are allowed as damages when the injunction is dissolved; never when it is maintained; particularly in the absence of malice and probable cause. Dyke vs. Dyer, 14 An. 701; Ib., 738; 17 L. 263; 4 An. 304; 12 An. 239; 20 An. 571; 28 An. 729.

It is therefore ordered and decreed that the judgment appealed from be amended by striking therefrom the allowance for damages, and, as thus amended, it be affirmed.  