23 La. Ann. 497 | La. | 1871
Lead Opinion
The plaintiff has appealed from a judgment perpetuating tho injunction sued out by the defendant restraining the plaintiff, his judgment creditor, from selling “all the right, title and interest of the defendant in and to the lease of the New Canal, granted to him by tho State of Louisiana, as per act passed before T. 0. Stark, notary public, March 6, 1866, together with his right of use and enjoyment of said canal thereunder and the revenues thereof.”
The main question in this controversy is, what is the character of the thing or right the defendant has enjoined his judgment creditor from selling? Is it the lease of a thing, or is it a contract for labor, skill or industry? If it be the lease of a thing, there is no doubt that the right of the lessee may bo seized and sold by his judgment creditor. 11 An. 432; 14 An. 217; 17 An. 174.
If, 011 the other hand, the contract seized has for its cause the labor, skill or industry of tho defendant in operating and administering the public highway belonging to the State, the right of the defendant, the obligor in said contract, is not liable to seizure. “All contracts for the hire of labor, skill or industry, without any distinction, whether they ■can be as well performed by any other as by the obligor, unless there be some special agreement to the contrary, are considered as personal on the part of the obligor but heritable on the part of the obligee.’’
The right of the defendant to collect the tolls of the canal and shell road on the day the seizure was levied was the right which he held by contract with the State under 'the acts of 1866 and 1867. Under these acts and the act of 1870, the defendant acquired the right to collect the tolls imposed by law, and he incurred the corresponding obligation to-do certain works for the State, to wit: to widen and deepen the canal, to construct certain basins and other works as stipulated, and to keep the canal and shell-road in good order. It seems to us’that the right of the defendant which has been seized is a right resulting, not from a contract of lease, but from a contract for labor. As a remuneration for repairing, enlarging, improving and keeping in order the canal and shell road, its public highway by land and by water from the city to* the lake, the State has given the defendant the right to collect the tolls thereon for a limited time. For the faithful penormance of this work, the defendant has given securities accejited and approved by the Slate.
The contract before us, as modified by the acts of 1867 and 1870, is-not a lease, because there is no fixed price, which is one of the essential elements of tho contract of lease. Revised Civil Code, articles 2670, 2671. It matters not what name the parties have given to tho instrument, its character is determined by its constituent elements. We therefore regard the right of the defendant, arising from his contract with the State, as a recompense for the personal services ho lias bound himself to perforin for the State during the period of the contract; and this being a personal right, is not liable to seizure by virtue of article 1992 of the Revised Civil Code. Taking this view of the merits, it becomes unnecessary to consider the other questions presented lor adjudication.
It is therefore ordered that the judgment appealed irom be affirmed, with costs.
Dissenting Opinion
dissenting. I dissent from tho opinion of tne.majority of the court for the following reasons:
The rights and credits of a debtor may be seized under execution. Code of Practice, article 647. The right of the debtor in the present case is the right to receive the tolls of a public canal under a contract-with the State to do certain work on that canal. I know of no law that prohibits the seizure of the defendant’s right under this contract. What, then, is in tho way of the judgment creditor’s seizing and selling,
