11 La. Ann. 643 | La. | 1856
This suit is brought against the succession of A. H. Bradley, deceased, formerly Sheriff of the parish of Franklin, and the sureties upon his bond as tax collector of the taxes of 1848.
The claim of discussion, under the Acts of 1847, p. 175, sec. 64., and p. 109, sec. 4, cannot be awarded to the defendants in this case. The plea of discussion is one which must be pleaded in limine litis, Dwight v. Linton, 3 Rob., 57; Zacharie, p. 66.
The objection that the bond was not executed until more than thirty days after the date of the Sheriff’s commission, and that it was not approved until the 12th February following, and that it was not recorded by the Recorder in the seperate book to be kept for its registry, but there being no such book, that it was recorded in another book, cannot avail the defendants.
The Statutes are directory in these particulars, and it does not become the Sheriff who has received and undertaken to collect the tax roll, nor his sureties, who bind themselves for his acts, to say that the bond which they have given, and by means of which the Sheriff has obtained possession of the tax roll, is inoperative. See the case of the State v. Hays et al., 7 An., 118, and State v Sureties of A. J. Law, 11 An.
As this judgmentis final between the,State and the defendants, the amount real- • ly due the State and no more ought to be ascertained according to the proof and judgment rendered accordingly. There is no reason, therefore, why the succession of Bradley should not be allowed a credit for $259 42, the amount of those taxes which it is shown could not be collected. As to the compensation for’ services in criminal matters, the salary of $100 was subject to be drawn quarterly, and the state of that account is not before us.
The judgment as it respects the sureties requires no material change, because the amount they are decreed to pay, respectively, will not meet the amount due' by the succession of A. H. Bradley, but they are interested in the change made/ in the judgment as it may lessen the balance which they may be compelled to pay.
It is, therefore, ordered, adjudged and decreed, by the court, that the judg-ment of the lower court be avoided and reversed, and that the State of Louisiana do have and recover of the defendant, Madison E. Cox, in his capacity of, administrator of the succession of Augustus H. Bradley, deceasedr.the sum of thirteen hundred and thirty-dhree dollars and fifteen cents, with two per eent.