
    
      MORGAN'S AD'R. vs. WOORHIES.
    West. District.
    
      October 1814.
    Debtor, on a fi. fa. may name the property to be taken: but not real, where there is personal, property. Tho' Sheriff take real, where there is personal, property, the creaditor cannot disavow his act and demand the debt from him.
    
    In'this case the defendant, now the appellee, _ 11 Sheriff of the -Parish of St. Landry, received a of fieri facias to be executed against certain persons therein named, at the suit of the plaintiff, now i¡lt: appellant. On the delivery of the writ he 1 1 J was directed by the attorney for the plaintiff' to . , . , _ . ,r . seize personal property m the nrst instance, it it be found. . If there existed none of that kind jn ⅛ bailiwick, belonging: to the debtor, then to levy . ■’ _ J on slaves., He was also particularly cautioned, not . .. . . . . , ^ to execute the writ by seizing town lots at upe-lousas church, or waste lands'; and that if he did, he would beheld responsible. Notwithstanding these directions he did seize town lots, and waste lands; which were disposed of, at the third and last exposure, on a year’s credit. The appellant refused to accept the bond taken by the appellee,, for the payment of this propertyand brought suit against him for the amount expressed in the writ, which had been delivered him for the execution. The persons against whom the writ issued, were admitted to own, within the Parish of St. Landry, personal property and slaves, sufficient by seizure to have satisfied the plaintiff’s writ.
    The District Court decided in favour of the appellee generally.
    
      Baldwin and Porter, for the' plaintiff.
    The question to be decided, in this cause, is of vast importance to this section of the state. The deci-siohtobe given will determine, whether or not the collection of debts will not be abandoned here : for it is evident if the defendant is allowed " choice of property, he can always furnish that description which will only sell at a year’s credit. At this sale, he buys it in himself, or employs some person to do it for him ; and gives bond and security to pay the money in a year. This period expired, suit has to be brought on his obligation ; which takes exactly the same course of the other, and terminates by "a new bond being given. This circle, iu which the plaintiff pursues his debtor, has no end; and at the expiration of four or five years, all he ^3S accla'rei^ the pursuit, is the paying of costs ; which the officers of justice take special case to exact from him as he goes along.
    This consequence of our legislative provisions, unqert]le practice heretofore existing is not exaggerated ; and, in the operation of our execution law, bad faith is protected, nay rewarded: confidence destroyed, and the example daily presented, of one man rioting in the enjoyment of another’s property, without there existing any means of compelling him to pay for it.
    If this Court can afford any remedy for these evils, it will do it. Allowing the choice of property to be seized, will be some alleviation.
    Two questions present themselves.
    1. Has the appellee (the defendant below) . rendered himself liable to an action ?
    2. If-he has, what is the extent of that liability? '
    I. Th e Sheriff in this case seems to have regarded the writ of execution, as altogether intended by law for the defendant’s benefit ; and made to enable him to elude the judgment of the court. The legal idea however attached to it is, that it is given to compel the person against whom it issues to comply with the judgmént rendered against him. 2 Bac. Abr. f American Edition)' 685.. Lord Coke says, Executio est fructus, finis et ejfectus legis. Co. Litt. 289.
    
      Tfi £ law proceeding on the idea, that the execution afforded the plaintiff is for his benefit, as well as to compel the defendant to do that, which by its judgment it says he ought to have done, gives to the former his choice of writs. 2 Bac. Abr. {A. e.J 718, 2 Binney 218, 3 Jurisprudence f Encyclopédie Franchise) 418-479, 7 ibid. 484, 463. If it enables him then, to" select that species of writ, which he conceives best calculated to force the defendant to do him justice; it is fair to presume, that in the same spirit, it also allows him f where a necessity exists to accomplish this purpose) the choice of property : otherwise its provisions would be inconsistent, and its means inadequate to the end it has in view. ;
    It is true, we can cite no positive authority to this, but the reasoning on which the conclusion is drawn, seems equal in force to that of any express, declaration on the subject. In our way of considering it, the law is made consistent throughout, and harmonious in its different provisions. Adopting the other construction, it is jarring and irregular; it gires the plaintiff every latitude in, his means, until his object is nearly accomplished, and then defeats him ; by allowing the defen-dhnt a selection, which is totally at war with the idea, on which the privilege of choice is in the first instance extended to the other.
    We admit there are some Spanish authorities which sav, the defendant shall have the choice i -but'the reason is obvious. There, the property must be sold for cash ; and' the officer -goes on till he makes it.. The plaintiff being allowed the, sejectiort ;n that country, would be useless, nay oppressive ; as it,must be a matter of indifference to him, what property is seized, when his mon£y at all events must be immediately made : but here under our execution law, requiring property to be sold at a year’s credit unless it brings two thirds of its appraised -value, the first and second^ exposure, a quite different state of things presents itself. .Giving the defendant the right of choosing the property to be sold, enables him to evade the judgment of the court, and tobe the oppressor instead of the plaintiff.
    ,. Cessante causa cessat effectus, is a maxim of universal law always received : here the cause not ' only, ceases, but acts the other way. When the property must be sold for cash, to admit the plaintiff to select, would be permitting him to oppress. To allow the defendant to choose, under óur laws, makes him the oppressor ; and produces the very consequence, which induced the Spanish „ láw to refuse it to the former.
    There are many provisions of the Spanish law, relating to executions, repealed by the nature of our government, and the. silent operation ,1 of our statutes, without any express declaration to-that effect, suchas the exemption from arrest of various officers: amone: others, counsellors y ’ . law ; and freedom from seizure of various arti-cíes. So here, we contend that the law, according the choice to the debtor, is repealed by an act of the Legislature, directing property to be sold at. twelve months credit ; because allowing him the selection, enables him almost in every case tó elude the judgment of the court, and defeat- the object at the execution entirely. .
    . But should the court decide against us, as to the choice of the real property, it is clear at least, that the officer has rendered himself responsible, by not seizing the personal effects of the defendants. Our statutory provisions are so plain in regard to this, that a recourse to reasoning on the subject is Unnecessary.
    1st the act of the Legislative Council, it is provided (page 236, sect. 14, J that if the money for which the execution issues,-is not paid in three days, the Sheriff shall cause the same/to be made out of the personal estate, except slaves ; if sufficient personal estate exclusive of slaves can be found therein. But if sufficient personal estate cannot be found, that, then he cause , the same to be made of the real estate and slaves.
    By this the Sheriff is positively directed to seize personal estate first ; and only - in default thereof to séll real estate or slaves. The words of, the writ must be strictly pursued, 6 Bac. Abr. (A. e.J 168. Having disregarded both the law and his -instructions, he has rendered himself liable to an action : and this leads to the second point j namely, to what extent is he responsible ? j
    
    jj This will easily be ascertained, by considering, in what character the Sheriff acts when executing the process of the court, at the suit of an individual. Although a public officer, he is clearly the- agent of the person who takes out the ■writ» The latter can in some instances increase, and in many diminish, the responsibility of the former, may .stop him from acting, if he thinks it his interest so to do, may appoint a bailiff himself, and take all the consequences of his acts. 6 Bac. Abr. (A. e.J 157, 4 term Rep. 119. He may delay by his commands the execution of the writ, may consent to bail which the officer refuses. Unless the Sheriff was considered the agent of the plaintiff, the law would not permit this controul to be exercised over him : nor would it give the former, as it does, a right of action against the latter for services rendered. 1 Comyns on contracts 6. 1 Esp. Nisi priiis G. E. 26, Salkeld 332, 5 term. Rep. 470, 1 Caines 192.
    In this instance, the agent has acted in direct opposition to the orders of the principal. The bond was ;taken without our consent, or as it is proved, against our express direction. We have a right then to disavow the act, and pursue him who acted illegally, and in defiance to our orders. By his act, he has taken the place of the defen- , ’ . , , 1 , „ ,• dants, and,we are entitled to obtain from him every thing we could have had of them. .
    Without citing a variety of authorities to this point, it is sufficient to refer to the great ease of I.e Guen vs. Gouverneur and Kemble, 1 Johnson's eases 436 to 524. The doctrine was elaborately examined there, and the right of the principal to pursue the agent, instead of those to whom the sale was made, is fully recognised ; and the true measure of the damages adjudged to be,' the amount for which the property was sold.
    Again* regarding him merely as a public officer, the law gives an action against him for illegal conduct : and the extent of his liability is distinguished, by the situation of the suit in which he acts improperly. If the plaintiff’s demand, is not ascertained by a judgment, the only remedy against the officer is an action on the case ; in which he recovers the damage he proves he has sustained. Espinasse's Rep. 475,1 Day, 128, 1 Sir. 650,1 Johnson 215.
    But, if judgment is already given, and the plaintiff’s demand against the defendant liquidated, the moment the officer act illegally he takes that judgment on himself; an action of debt can be brought, and he is responsible for the whole amount originally recovered from the defendant* 2 institutes 382, 2 Black. Rep. 1048, 2 Strange 153-2//. Black. 108,2 Term Mep. \2&. '
    
      This case is one where final judgment has been rendered ; it comes then within the principle of tile last mentioned authorities, and will doubtless receive a similar judgment. ! , ;
    Sutton, for the defendant.
    The plaintiff’s counsel has in vain invoked British and French au* thorities, in order to ascertain'the rights of a . creditor, who has obtained a fieri facias, as well as the duties of the officer, who is to put the writ into execution.
    These rights and these duties will be better defined by a true interpretation and construction of the statutes of our own country, under which the writ issues. Let us therefore inquire whether these statutes justify the pretentions of the plaintiff to the right of selecting that particular property, on which the fieri facias is to be executed. Why should it be given to him ? Cui bono .? All he has a right to ⅛ that the money be made. If the law has seen fit to direct certain proceedings, with regard to the sale of a certain , species of property, and these proceedings are a • little less speedy, in one case than in the other, he must submit in this as in all other cases to the will of the legislator. This will in rto casé vests any election or choice in .the plaintiff. No good j’eason can .be shewn why he should have any.
    v The case is quite different, with regard to the debtor. He cannot well spare his bed, his tools,. his kitchen furniture, ñor that portion of his house-liold furniture, without which his family can have but a comfortless existence. The cow, that sup-' plies necessary food, cannot be will spared nor certain provisions which cannot be laid in advantageously in every season of that year. It would be cruel, if the debtor has any other kind of property to offer for sale, to compel him to bring such under the hammer. Humanity, therefore, claims^ that if there be a choice, it should belong to the debtor. The Spanish law has several provisions for this purpose. Curia Philipica, Juicio Execu-tivo, verbo Execution.
    
    Auxiliary to it, is the act of the Legislative Council. As land is sold with more difficulty and a greater sacrifice than personal property, and as land is here useless without slaves, it provides in tenderness to the debtor, that the Sheriff shall first take personal property. Can it be ' said that the caution it uses is to be tortured into ' a denial to the debtor of the right hitherto secured to him, of naming the particular property he can best spare. , •
    The farmers in this state have seldom any other personal property, than the necessary household furniture, plantation tools and such animals as the labours of husbandry require. They have often a considerable property in land, often more that they can cultivate. This surplus is often the property the deprivation of which occasion the less distress. The Spanish law, the basis of our jurisprudence, secures ⅛ such a case the choice of evils and we contend this boon is not taken away by the act of the Legislative /-> • i Council.
    Wh e n the Sheriff comes to a debtor with an execution, the Spanish law cited makes it his duty to require that property may be designated to him for sale. If the debtor complies, the Sheriff neither takes or seizes any thing, but takes surety for the forthcoming of it on the day of sale, and its producing the money, fianza de suneamu ento. If the debtor be obstinate, then and not till then, is thé Sheriff to seize or take the property, and the sole object, of the part of the act bf the Legislative Council cited by the plaintiff, is to point out the steps the Sheriff is to take. First he must seize personal property, next slaves and finally land.
    In the ease before the Court, the debtors, under the Spanish law quoted, obeyed the Sheriff’s call, and in doing so had a right to avail themselves of the benefit it holds out, to napie what property they best could spare. The Sheriff could not seize any thing else the property pointed out being sufficient.
    ⅝ Admitting that the Sheriff erred in the construction of the law, what damages is he bound to pay ? The answer is, the damages which may legally be recovered from him, who withholds the money of another : the damages which the Sheriff would be bound to pay, had he m’ade the money and applied it to his own use. “However “ great,” says Pothier, “may be the damages, which “ the creditor sustains from the delay of payment “ of the sum due, whether it proceeds from the “ negligence, fraud or obstinacy of the debtor, he “ can have noother compensation than the interest.” 1 Traite des Obligations, 104 no. 150. This the Sheriff has secured to him. .
    It is contended by the plaintiff’s counsel that as the law “enables him to select that species of “ writ, which he conceives best calculated to force “ the defendant to do him justice, it is fair to “ presume that, in the same spirit, it'also'allows “ him, where the necessity exists to accomplish . “ his purpose, the choice of property.” Let this reasoning be admitted to be perfectly correct and the consequence will be that, in Great Britain' and such of these states, where the plaintiff may ¡choose his writ, take out a ca' sa' or fi.fa. at his pleasure, the choice of precept carries with it the choice of property to be taken. Having Conceded this, the learned counsel will not dispute that where there is no choice of writ, there ought to be no choice of property. Now, in'Louisiana this choice does not exist ; the plaintiff must in every case take out a ji, fa. and when the Sheriff re* turns nulla bona., then, and not till then, can the cal sol legally issue.
    
      Lastly, the plaintiff ought not to recover bfc-cause he-has neglected to arrest, as he might if he had pleased, all proceedings on the execution before the sale. Curia Philipica 93, title Execution, no. 4. ' *
   By the Court.

In this case, the plaintiff and appellant having obtained a judgment against several persons, as stated in his petition, caused execution to issue in the usual form prescribed bylaw. The writ was put into the hands of the defendant and appellee, who is- Sheriff of the Parish of St. Landry and who, in addition to what ⅛ required of him in the process, was particularly instructed by the counsel of the plaintiff, to levy on the personal estates of the defendants. and particularly not to take under the execution waste «and uncultivated lands.

. It is admitted by the statement of facts that the defendant had sufficient personal property, to satisfy the execution at the time it came into the hands of the Sheriff, but that contrary to what was required of him, by the express words of the writ, and in violation of the instruction of the plaintiff’s counsel, he did seize waste land, with the exception of three town lots, sold at a year’s credit.

The present action is brought against the Sheriff to recover the whole amount of the judgment obtained by the appellant against^the defendants in the original suit, on which the execution issued and was acted on as above stated-

lar the investigation of this cause, three pririci-pal questions occur. ’

1. Wh e n a defendant in execution possesses a sufficient quantity of personal property to satisfy the judgment against him, is the Sheriff bound indispensably to seize such property, or may the defendant wave his privilege, if it may be so called, of having his personal estate sold and offer real property, to be executed ?

2. In default of personal property, is it left to the choice of the defendant to point out what part of his real estate shall be seized, or can the plaintiff direct the manner of proceeding on the execution ?

3. If the Sheriff, as in the present case, neglects to pursue his duty by levying on the personál estate, as commanded by the writ, but seizés real property and proceeds on such seizure as required by law, to J:he final disposition of it on said writ without opposition, can he be made answerable in an action for the whole amount of the fexecutiori ?

I.As to the first point, there can be no doubt of the Sheriff being bound to seize the personal estate of the debtor. This is expressly required by law and is positively commanded by the writ. In opposition to this it is contended, that the reason of the law is founded on a respect' to the situation of debtors and that its intention is to prevent an oppressive use of executions on defeifc.. dants, or in other words that it is a rule made For , . thpir benefit and that on general principles of law, everyone may wave privileges and dispense with regulations, intended solely for his advantage. 'phis perhaps is true, but the exercise of such rights can only be tolerated by courts of justice, when in their operation, they do no injury to other persons ; and, under the existing circumstances of our laws, it is clear that the plaintiff may be injured by adelay in the recovery of his debt, if the Sheriff should be bound to execute real estate,' instead of personal, at the recjuest of the defendant. The former species of property particularly land may and generally is sold on a year’s credit in addition to the great delay necessarily created ,by law, in requiring real property to be advertised for a much longer time than personal.

The rules of the Spanish law are conformable to the provisions of the act of the legislative council in requiring personal property to be first seized in execution, and real estate only to be executed in default of these, and in those laws we find'it expressly stated, that altho’ the defendant has the privilege of shewing the property, he cannot, having personal estate, point out real, for execution. Curia Philipica 11 P. Juicio executivo, title Execution, no. 3.

II. The second question arising in this case seems to be settled by the same authority. In no. *1, the author treating of the same subject, lays it ° J , . r down as a rule of law, generally understood that the debtor has to name the goods to be executed, and that, if he will not point out his property for execution it was considered by some authors that he should be arrested and compelled to do it, but the practice appears to be that the debtor should be required to name the property, and on his refusal so to do, or should he name an insufficient quantity, the creditor may point it out or the Sheriff seize at discretion. This manner of proceeding has nothing unreasonable in, it and can do no injury to the creditor or plaintiff in execution, where the property is sold for ready money: for certainly to him, it is a matter of no consequence on the sale of what property he obtains payment of'his debt, provided if is effected in a reasonable time. Bijt it is said, and with truth, that under the existing laws of the state, and in'the present situation of the country, .the inhabitants holding vast quantities of waste and uncultivated land; which will not sell for ready money, to permit the defendant in execution to point out the property to be levied on amounts almost to a prohibition on the part of the plaintiff of ever being able to recover his debt: as this species of property will always be named by the debtor and by the sale of it the Sheriff will never be able to raise money. This certainly is a great evil, which has its origin in the'act of our legislature requiring the sale of real estáte at a year’s credit, in, cases where it' will not , , • . . . T . produce two thirds or its appraised value. It is however ah evil, which in our1 opinion can oñly be remedied by legislative interference.. There is nothing found in the laws, made by our legislature, which does repeal or destroy the operation of the former laws of the country on this subject. Unless we consider as such the inconveniences arising from the new and additional regulations, which would be to carry the doctrine of abrogation to, length, never heretofore heard of, and in violation of all legal constructions. On this head, it is therefore the opinion of this Court that the manner of proceeding on executions where it is not otherwise provided for by laws since enacted, must be according to the provisions of the former laws of the country, by which it seems that the defendant has the right or is bound to name the property to be executed, whether personal or real.

III. The Sheriff is not answerable in the present suit for the whole amount of the judgment obtained against the defendant in the original action.

It is a maxim of law that there can exist no wrong without a remedy : ,yet redress in damages ought in all cases to be proportioned to the injury sustained, unless in cases where they are given as an example to deter from similar conduct in future, which is really punishing men for their bad intentions.

The Sheriff, in the case before the Court, has failed in the proper discharge of his duty by levying on real estate, while the defendant possessed sufficient personal property to satisfy the execution : and altho’ there are circumstauces which have a tendency to shew that his conduct has not proceeded from the best motives on his part, yet he may have conceived that the defendants in execution liad a right to wave the laws requiring 'the seizure of personal estate, if to be had, and offer in its place real property ; and can now only be made answerable in damages, to the plaintiff in execution for the injury which he has actually suffered. Nothing has been shewn to the Court by which the amount of damages may be fairly ascertained. It cannot be the sum recovered by the appellant against the defendant in his former suit ; because he has had the full benefit of his execution by a levy on lands, which he has suffered to proceed, without any kind of opposition, to a sale and transfer as required by law. This we say he has permitted ; because according to' the Spanish latvs / on the subject he might have caused the execution, When he discovered the Sheriff proceeded irregularly and contrary to law, to be annulled and quashed on application to the District Court, and ,on a new execution the Sheriff would have been compelled to proceed legally. Curia Philipica, 93, title Execution, no. 4. And altho’by this law it does appear that the execution is null and void, as having been executed contrary to its intent and form, yet as the Sheriff has been suffered to proceed on it, until third persons may have become interested by sales under it, the party would nów be too late, to proceed in any way" to have it annulled. Under the circumstances of this case the only injury which the appellant suffers by the conduct of the Sheriff is a greater delay in recovering the money on his execution and perhaps judgment might regularly be.given in his favour for the interest of the money during the period of-delay ; but this would be allowing him. to recover twice on the same cause of action, as this interest will be obtained, or ought to be, at the expiration of the year, the term of credit on which the property has been sold. Thus were we to given judgment for the whole amount of the judgment on which the execution issued, it would be according to the appellant a double remedy by enabling him to recover by means of the mortgage and security procured on the execution and also the same amount in damages against the Sheriff; this certainly cannot be just or legal. The appellant having neglected to arrest the illegal proceeding of the Sheriff on the execution and have.it annulled and not" having shewn any particular damage, occasioned by his conduct,

It is ordered and adjudged that the judgment of.the District Court be affirmed with costs.  