Benton v. Roberts

2 La. Ann. 243 | La. | 1847

The j udgment of the court was pronounced by

King, J,

The plaintiif enjoined, in this action, an execution issued against him on a twelve-months’ bond, on the following grounds: 1st, That before the writ issued, he tendered to the defendant $5,583 34, which, it is alleged, was the only sum then remaining due. 2d, That he had paid the defendant $4,000, about the time when the twelve-months’ bond matured. 3d, That he had obtained a judgment against Roberts, the plaintiff in execution, for $1,770 14, with five per cent interest thereon, from the 7th of July, 1843, until paid, which he was authorized to compensate against the bond. 4th, That the twelve-months’ bond on which the execution was issued had been attached, at the suit of Lewis Selby, for $1,551, with five per cent interest from February 12th, 1844, of which the plaintiff was duly notified, and that ho was authorized to retain that sum to abide the results of the attachment suit. The injunction was dissolved in the court below, with ten per cent damages, and .the plaintiff has appealed. '

I. It is admitted that the alleged tender was mad.e .to Roberts, the judgment creditor, and that the sum was subsequently deposited with a merchant. The effect of a tender and doposit in this form, even if it had be.en of the entire .amount due, would neither have been to operate a discharge of the debt, nor to place the money at the risk of the creditor. Code of Prac. art. 412 et seq. But the tender, in the present instance, was .of a sum less than that due, which Roberts was pot bound to accept.

II. The sum of $4,000, alleged to have been paid, was received by the sheriff" .after the writ came into his handstand was duly credited thereon.

III. The plaintiff had obtained a judgment against Roberts for the sum stated in the petition, which, at the date of the writ, was pending .on a suspensive appeal before the Supreme Court. While thus pending the debt was not exigir ble, and could not be compensated against a twelve-months" bond which was due, ;and consequently could have formed no ground for an injunction.

IV. The attachment of Selby had bean set aside by Roberts, up.on his giving ,the bopd required by .law. This bond stood in lieu of the property attached, and, .after the release which it operated, the pending of that suit could no longer be urged as a reason for withholding any part of the debt. Code of Prac. art, 259. 18 La. 58.

It has been urged .that, notwithstanding the payments admitted to have beep made, and that the bond bears ten per cent interest, the judge below has com .demned the plaintiffs to pay the ivhole amount of the bond, and ten per cent additional interest, besides damages. We do not so understand the judgment. It is perhaps obscurely worded. We understand, however, that it condemns the plaintiff to pay the amount of tíre bond, with ten per cent interest, which it bears on its .face, after deducting therefrom two credits, amounting together to $4,000, to take effect at specified dates; and that it further condemns the plaintiff and his sureties in the injunction bond, in solido, to pay ten per cent damages on the .amount of principal and interest due, after deducting the credits recited in the judgment. We think the evidence fully supports the judgment. The object of the plaintiff in obtaining the inj unction was manifestly delay, and he was properly-amerced .in damages. Judgment affirmed.