
    No. ........
    First Circuit Appeal.
    FRANCIS VALLEY v. BENJAMIN E. CAU-SEY AND ERNEST M. FLOYD.
    (December 2, 1924, Opinion and Decree.)
    
      (Syllabus by the Editor.)
    
    1. Louisiana‘Digest, Landlord and Tenant. Par. 100.
    Where under Code of Practice, Article 287, a bond is made to release the property- Held under provisional seizure, for rent, the bondsmen are liable for the value of movables seized which were not returned. This, of course, only where there is proof of actual value.
    Appeal from the Parish of Ascension. Hon. Sam A. LeBlanc, Judge.
    This is a suit against the surety on a release bond in a provisional seizure for rent and purchase price. There was judgment for plaintiff, and defendant appealed.
    Judgment affirmed.
    C. V. St. Amant, of Donaldsonville, and C. T. Wortham, of Donaldsonville, attorneys for plaintiff.
    Walter Lemann, of Donaldsonville, attorney for- defendant.
   MOUTON, J.

Plaintiff, in Nov., 1920, sued L. Dexter Floyd, as his lessee, for rent of a farm, obtained a provisional seizure- of two plows, of a black horse, a .bay- horse, three mules, one wagon, one lot of corn, three cows, two calves, eleven hogs, one lot of chickens, 30 or 40 in number, one buggy, a lot of cotton, about one and half bales, situated on the property leased. The amount of $1000.00 was claimed for the rent. He also alleged that he was. entitled to a privilege of $350.00 as vendor of three, mules he had sold to the lessee. He accordingly prayed for the recognition of his lessor’s lien, and vendor’s privilege in 'the. amounts above stated.

All of the movables above described, including the mules on which the vendor’s lien rested, were seized under the provisional seizure. The defendant, L. Dexter Floyd, had the property released under a forthcoming bond executed Nov. 20th, 1920, which was signed by Benjamin Causey and E,rnest M. Floyd, as sureties.

Thereafter, Jan. 6th, 1922, judgment was rendered against defendant in the sum of $430.00, with interest for rent, maintaining the provisional seizure, and ordering the sale of the property seized thereunder; also recognizing the vendor’s lien on the mules.

The present suit, as indicated by the title, is against the sureties on the release bond.

Of the property provisionally seized above described the following: 2 plows, 1 black horse, 1 bay horse, 3 mules, 1 wagon, 3 cows, and 2 calves, were appraised and sold by the sheriff.

Out of the proceeds of the sale, the sheriff realized a sum sufficient to pay the costs of court, and to turn over to plaintiff $361.69, which was applied to his judgment. Plaintiff claims that he obtained judgment against his lessee for $805.00 and that applying the sum he received from the sheriff, as aforesaid, leaves a balance of $509.68, due him by the bondsmen, Benjamin E. Causey and Ernest M. Floyd, defendants herein.

The original suit was brought against the lessee by plaintiff, lessor, the property was seized under the writ of provisional seizure therein issued, and the bond was furnished to release the property from that seizure. This suit is brought on the bond which was assigned by the sheriff to plaintiff, as alleged. This bond for the release of the property having been furnished in a suit by a lessor in an action for rent, must be tested under Article 287, Code of Practice, as. was pointedly held in Honeycutt vs. Whitten et al., 152 La. 1045, 95 South. 216.

Plaintiff in his petition alleges that L.. Dexter Floyd, the lessee, delivered to the sheriff the property bonded “with the exception of one black mule named “Stella”, which had died since the bonding of said property; one lot of cotton, about one and one-half bales; one lot of chickens, about 30 or 40; one lot of hogs, eleven in number,' and one buggy.”

The court in Honeycutt vs. Whitten, 152 La. 1045, 95 South. 216, said that where part of the property bonded is produced and returned to the sheriff, plaintiff is entitled to judgment on the bond for the difference between the amount of the bond and the appraised value of the property. In the instant case, the sheriff appraised some of the movables which had been bonded, above referred to, but did not appraise the movables which plaintiff herein claims were not produced or returned.

Hence, the case is not to be determined by the rule governing under article 287, C. P., as interpreted by the court in the case above cited.

The question presented for decision is, therefore, as to whether or not the bondsmen -are responsible for the value of the movables plaintiff alleges have not been returned.

Plaintiff alleges that the mule Stella was dead. The proof shows she died, apparently, of old age, a natural death. As lessee was, therefore, not at fault in not returning this mule, the sureties are not responsible for its value. Thirty or forty chickens were released under the bond, but it appears that some had died and it is not shown how many were on the premises when the sheriff demanded the delivery of the property, nor is there any proof of their value. The same condition exists as to the hogs. In the absence of such proof it is impossible for the Court to fix a value for the chickens and hogs. As to the- buggy, it was broken, dilapidated, and was practically valueless. The lot of seed cotton was likewise without value. There was a bale of cotton on the place which was not returned by the lessee. It was appraised by the witnesses at an amount ranging between $65.00 and $75:00. The lower court rendered judgment against defendants, sureties, for $68.51, and "Which was a fair value for the cotton. This, we find, is about the extent of their liability under the proof.

Right is reserved to plaintiff to sue for hogs and chickens.

Judgment affirmed.  