State ex rel. St. Charles Railroad Company v. Cockrem, Administrator, and als.

writ of injunction, issued by the Fourth District Court at the instance of Romanzo W. Montgomery, to which the City of New Orleans was a party; that said injunction remained in force until June, 1872, when it was dissolved; that thereupon the relators called upon the City Surveyor to furnish them with the lines and levels required in order that they might commence the work, and were refused on the ground that he could only act under an order from the Administrator of Public Improvements; that relators then applied to John Cockrem, Administrator of Public Improvements, for the same purpose, and were likewise refused by him. The relators then filed a petition in the Eighth District Court, praying that a mandamus issue against Cockrem, the Administrator of Public Improvements, and Bell, the City Surveyor, to compel them to furnish the lines and levels required. To this proceeding the city of New Orleans and C. E. Girardey and others, to whom the city in November, 1871, had granted the privilege of constructing the unfinished portion of the railroad, were made parties. A rule nisi was granted. To this Cockrem and Bell responded, denying all right in the relators to be furnished with the lines and levels they demanded. They deny that the relators derived any right from the assignment to them from Nicholson & Co., who derived no right from the alleged contract they made with the city in 1865 and 1866, the same having been entered into in contravention of a prohibitory order rendered by the military authority then paramount in the State. That the relators connived at the injunction proceeding of Montgomery, which was. illegally and wrongfully kept in existence for several years in order that the relators might obtain an undue advantage; that the city of New Orleans, considering the invalidity of the pretended grants, privileges and franchises asserted by the relators and the waiver, nonuser, negligence and abandonment of the same on the part of the relators, conveyed the right of way and the consequent right to lines and levels to the streets in controversy to other parties with whom the relators can not legally interfere. Respondents object that the law does not authorize the issuing the writ of mandamus in the case at bar. Girardey & Co. adopted all the defenses set up by the City Surveyor and the Administrator of Public Improvements. The rule was made absolute and the court ordered that John Cockrem, Administrator of Public Improvements, furnish to the relators the lines and levels required to enable them to construct the road according to the specifications in the original contract.

From this judgment the respondents appealed.

On the part of the defendants it is contended that the city, having repudiated the contracts with Nicholson & Co., and the pretended rights of their subrogees the St. Charles street Railroad Company, in so far as these contracts accorded the right of way for a railroad on

State ex rel. St. Charles Railroad Company v. Cockrem, Administrator, and als.

Royal and Bourbon streets; and moreover the city authorities having entered into contracts with Girardey and others for the construction of a railroad on those streets, no city officer had any right to disregard such action of the municipal authorities, and consequently no authority to furnish the relators with the lines and levels they required. That under the existing state of facts the furnishing to the relators the facilities they demand, so far from being a mere ministerial du'y which the proper officer might by mandamus be compelled to perform, would be a violation of his duty and a setting at nanght the will of the corporate authorities. That the relators can not, therefore, in this case, proceed by mandamus.

In defense it is set up, that, by a military order rendered by General Canby, on the ninth of February, 1866, the several bureaus of the municipal government of the city of New Orleans, created by and acting under military authority, were injoined and prohibited from granting any franchise or right to corporations, for a term extending beyond such period as the civil government of the city may be reorganized and re-established under and in conformity to the constitution and laws of the State; and that no grant of that character should extend beyond the time when tue questions relative to those rights may be determined by competent authority.

To this it is answered that the ordinances of the city authorities authorizing the building of this railroad and the contract entered into in conformity therewith, between the city and Nicholson & Co., for the building of the same, took place before the military order of General Canby was rendered, and that nothing in that order justifies the conclusion that it intended to annul that or any other contract of the kind entered into prior to its promulgation; and that the order of General Canby of February 9, 1866, was so understood, for the city by ordinance of sixteenth of December, 1867, after the transfer of the contract by Nicholson & Co. to the St. Charles Street Railroad Company expressly substituted the latter to all the rights, privileges and obligations of Nicholson & Co. in their contract And later still, on the twenty-sixth of July, 1870, the city, by an ordinance to that effect, allowed the St. Charles Street Railroad Company to make certain alterations the company desired to make in the track of the road. Besides, it is shown that the city, by ordinance of eleventh May, 1869, reduced the bonus to be paid ou a certain consideration. It is further shown that the St. Charles Street Railroad Company have been constantly operating that part of the said road lying above Canal street ever since they acquired it under the contract with Nicholson & Co., and that the city has regularly received the stipulated bonus on passengers carried without objection. It seems, then, as contended by the relators, that the civil government of the city since the termina

State ex rel. St. Charles Railroad Company v. Cockrem, Administrator, and als.

tion of the military authority, has frequently recognized and ratified by its ordinances the rights of the relators under the Nicholson contract. That contract was an entirety, embracing as well the line of the road below Canal street as that portion above it. The city, it would seem, has no right to sever its obligations, to ratify one portion of its contract and reject another. The right of way was not given to Nicholson & Co., but was sold to them, and the consideration was not only that they should incur the expense of building the railroad, but also that they should pay to the city a certain bonus or percentage upon the fare of each passenger carried. This bonus it appears has been regularly paid by Nicholson & Co. and their subrogees, and been received by the city as the consideration of the contract between the city and Nicholson & Co. The city having for a number of years received without objection the consideration of its contract should not now be heard to dispute the contract itself.

On the part of the city it is held, that the relators, if they ever had the right of way for a road below Canal street, along Bourbon and Royal streets, have forfeited it by virtually abandoning the construction of the road along those streets, and have failed to construct the road within the time required by the contract. It is in proof, that Montgomery, a property holder on Royal street, obtained an injunction, in September, 1866, prohibiting the building of the contemplated road on that street, and that this injunction was not dissolved until June, 1872. We are unable to find in the evidence anything making good the charge of the defendants, that the injunction was kept in force so long by the wishes and by the connivance of the relators. The city was a party to this injunction suit, and had the same right to push the case to trial that the relator had, but did not do so.

We conclude that the city was without authority to enter into the contract with Girardey and others, granting to them the right of way to construct below Canal street the road projected originally by the contract of the city with Nicholson & Co., which contract was afterward extended and entered into with the relators. The contract made with the relators being valid and binding, their rights under it cannot be affected by the subsequent agreement between the city and Girardey & Co. The latter party, when cited, came forward, and, without exception, answered to the merits of the case. The city surveyor was bound, when called upon, to furnish the requisite lines and levels for the building of the road, a ministerial duty, which was imposed upon him by the sixth section of the original ordinance authorizing the construction of the road. The proceeding in this case by mandamus seems not to be irregular.

It is, therefore, ordered that the judgment of the district court be affirmed, with costs.

Hugh v. Hernandez and al.

No. 3581.

JAMES HUGH v. JOSEPH HERNANDEZ and al.

The action against the sureties of a sheriff for money collected by him and not accounted for to the party entitled to it, is barred by the prescription of two years. Revised Statutes of 1870, section 2816.

The law has not given the summary remedy by rule against sureties on a sheriff's bond, and where the rule was made absolute, and in a subsequent action of rullity, said judgment was set aside on the ground that no citation had been served on the parties, the prescription of two years was not interrupted by the instituting of such a proceeding against the parties

A

PPEAL from the Eighth District Court, parish of Orleans. Dibble, J. J. A Bartlette, for plaintiff and appellant. Charvet & Duplantier, J. Duvigneaud and E. Bermudez, for defendants and appellees. TALIAFERRO, J. This is an action against the sureties of a sheriff, to compel them to pay a sum of money alleged to have been received by him acting in his official capacity, and which he neglected to pay over to the plaintiff, who claims that he is entitled to receive it.

The defense is placed on several grounds, one of which, and the one we deem most important, is prescription. The plea of prescription of two years was sustained by the court below, and the suit dismissed. The plaintiff has appealed.

The facts are as follow: In 1866, Bienvenu, sheriff of the parish of Orleans, sold certain stocks, seized under execution, from the sale of which he realized the sum of $6232 50. The sale was made on the twenty-sixth of March, 1866, and on the next day a rule was taken on the sheriff to show cause why he should not pay over the money so received to Joseph Lalande, a party setting up a claim to it. On trial of the rule, on the sixteenth May, 1866, it was dismissed, but the sheriff was ordered to pay over the money to Ingraham, the judgment creditor, at whose instance the seizure and sale of the stocks were made, and who transferred the judgment and all his rights under it to the plaintiff. On the third of July, 1867, the sheriff having failed to pay, a rule was taken on his sureties, to show cause why they should not be condemned in solido with him. On the third of December, 1867, this rule was made absolute, and the sureties were accordingly condemned in solido with the sheriff, to pay the money. Subsequently an action of nullity was brought to set aside this judgment, on the ground that no citation had been served upon the sureties. The judgment was annulled on that ground, on the twelfth January, 1869, and the decree of the Fifth District Court annulling it, was confirmed on appeal to this court. See 22 An. 245. On the twelfth of May, 1870, the present suit was brought.

The defendants, therefore, say that between the twenty-seventh of March, 1866, or the sixteenth of May, 1866, or the third of July, 1867,

Hugh v. Hernandez and al.

and the twelfth of May, 1870, more than two years have elapsed, and that the sureties are discharged under the law invoked by them. Ray's Revised Statutes, section 3546. "The sheriff and their securities shall be able to prescribe against their acts of misfeasauce, nonfeasance, costs, offenses, and quasi offenses after the lapse of two years from the day of omission or commission of the acts complained of."

But the plaintiff contends that his suit is not for damages arising from negligence nor for misfeasance or nonfeasance; neither is it for offenses or quasi offenses, nor for any act mentioned in the law prescribed by two years-but that it is simply for money the sheriff has received while acting as mandatary, or depositary, or sequestrator. That in executing the writ under which he received the money he acted as the judicial agent of the plaintiff, and refers to 2 L. R. 280 and to the case of Spalding & Rogers v. John P. Walden et al., 23 An. 474.

The plaintiff holds further that if the prescription of two years were applicable to a case like this it was interrupted by the rule taken on the sheriff and his sureties on the third of July, 1867, which was served on the sheriff and all the sureties. On the first ground we think the authorities cited are not in point. The facts of the case in 23 An. differ materially from those presented in the case before us. In that case the suit was for money received by the sheriff during the late war and put in bank for the owners, who were absentees; the sheriff, by reason of military orders then in force, was unable to withdraw the deposit to settle the claim. The act of the sheriff was held to be neither an act of misfeasance or nonfeasance, nor was the suit placed on that ground. In the case under consideration the petition of the plaintiff charges: "That the said Bienvenu, sheriff, failing to pay over the proceeds of the sale on demand being made for that purpose, a rule was taken upon him by petitioner and notice thereof given to said sureties, and on the third of December, 1867, judgment was rendered on said rule against the said sheriff for $3343 18, with interest, etc., in favor of petitioner; that on said judgment execution issued and was returned, no property found," etc. The sheriff had sold. certain stocks seized under the execution issued upon the judgment of the plaintiff's transferrer, received a large sum of money in cash, and after an order of court to pay it over to the party entitled to it he declined and failed to comply with the order, and an execution issued against him was returned nulla bona.

On the second ground, that the service of the rule interrupted prescription. In the action to annul the judgment rendered on the third. of July, 1867, it was decided that the law has not given the summary remedy by rule against sureties on a sheriff's bond. That the want of citation of the sureties was fatal since they did not answer or other