Os REHEARING.
Under the pressure of an earnest application for a rehearing, charging that our decision had done the petitioner great legal wrong and injury, we made it our duty to grant the prayer, although not convinced of having erred. Benefited by an extended oral argument, in which able counsel have left no stone unturned, we have thoroughly reexamined the matter previously considered, but have been unable to alter our convictions.
The objections made by defendant to the issuance of a capias ad sat-isfaciendum against him are innumerable and sound more like arguments ab inconvenient,i than as real defense to the merits. They appear mostly in the oral and printed discussions and are in excess of the exceptions and answer, based on technicalities, which were filed to the rule for the remedy.
The exceptions were taken up and disposed of seriatim. We have reviewed the several rulings made on them and have no occasion to question their correctness.
We think proper to add, however, on the exception as to the form, that the decision in Graham vs. Swayne, I R. 186, made in 1841, was not, as claimed, rendered on a rule against Charbonnet as sheriee, but against Mm as “formerly the sheriff of the parish of Jefferson,” p. 187, and that the same summary proceeding against a former sheriff was further sanctioned by this Court in 1855, in Miller vs. Roy, 10 A. 744, under the second Constitution which followed that of 1812, to which reference was made in the argument on the rehearing.
The defense, that the defendant Handy should have been, but was not, sued and condemned, as sheriff) can have no effect to place him beyond the reach of the remedy invoked against Mm.
To sanction such a construction of the law would be to put in the power of a dishonest sheriff; after receiving large amounts of money and converting the same to his .own use, to shelter himself against suit and prosecution by simply resigning immediately after the breach of *32trust and embezzlement. lie would sometimes work a, hardship on litigants by requiring from them an impossibility. In the ease at bar, how could it be demanded when the final judgment on rehearing, recognizing Frank & Co. as the owner of the cotton and consequently of its proceeds, was rendered in April, 1879, many months after Handy had ceased to he sheriff?
We do not consider that it was incumbent on plaintiffs to have proved anything beyond what they have established. If the defendant had any justification or exoneration to set up, he should have announced and proved it. The burden was upon him and not upon the plaintiffs. In this he has signally failed.
There can be no doubt that imprisonment for debt has been abolished against ordinary debtors; but the power which luis put it out of life, in 1840, in such cases, had the virtue of establishing it, as it subsequently did, in 1841, against a different class of debtors, public, officers, actually or formally in office, in order to compel them to an observance of their duties, to a satisfaction of the trust and faith reposed in them by the people or the Executive.
The repealing act of 1840 can .surely have no effect on the subsequent act of 1841.
The law invoked may he deemed a harsh one by the defaulting officials who, in their official capacity, have received in trust the money of others, whose forced legal agents they are and who afterwards divert the same and fail to account for it and return it when called on to do so; but its harshness, whatever it be, does not seem to have boon sufficient to deter misfeasance in office and to enforce a performance of duty. The harshness of the law can always be avoided by a deeper regard and clearer discrimination of the rights of others to property in legal custody, under the protection of a solemn oath and of implied faith and reliance.
Whatever the law he in its rigor, it is our duty to apply it as we iiml it on the Statute Book. Diwa lex sed lex.
Articles 730 and 767 of the present Code of Practice, prescribe the remedies to which parties claiming money received by sheriffs are entitled to coerce payment.
The first article refers to cases in which the money was received by sheriffs acting officially, where the proceeding is against one who actually is, or formerly was, sheriff, and where a judgment was rendered and the fi. fa. thereon returned “ nulla bona?
The second article refers to cases in which payment may not, as yet, have been rendered and in which the delinquent is still in office, the *33penalty being not only twenty per cent interest, but removal from office •
In either case the remedy can be claimed by rule, and where it is shown that the money was received in an official Capacity, by one who has failed to account for it, that judgment was rendered for it, that execution has issued and is returned “ no property found,'' the relief must be allowed.
It is clear that, as Handy was not in office when the rights of Frank & Co. were ultimately recognized by this Court, it was impossible to have proceeded against him for his removal under art. 767, C. P. It is equally evident .that, if Frank & Co. could not have taken coercive steps under art. 730, C.P.,tkat wholesome provision of the law would be a dead letter and they would have had lights which no remedy could have enforced.
It is error .to suppose that Handy was entitled to a trialjoy juiy ou the rule for a ea. sa. In the first place he did not ask for a jury. In the second, he did not plead justification of failure to account. In the third, he would not have been entitled to a jury in a summary case, in which the law allows none. He might have asked one, in the suit for the money, as by setting up the claim via ordinwria, the plaintiffs had opened the door for such prayer. The proceeding by rule was liberal, fair and legal.
It cannot be claimed, from the fact that the plaintiffs did not formally ask, in the suit against Handy, that their right be recognized to enforce the judgment, when obtained, by eapias ad satisfaciendum, that they have waived the remedy. As well might it be argued that in ordinary cases, in which a money judgment is sought against ordinary debtors, the plaintiff should specifically ask that his right to a fieri facias be' recognized, or else that their right to the writ shall be considered as abandoned.
The law provides for different modes of executing judgments, independent of any prayer for the same, and .it allows its writs, although no demand was formally made ab initio for them.
It is worthy of note that the remedy invoked in this instance and which was created in 1841, immediately after the abolishment of imprisonment for debt, is explicitly provided for, not only in article 730 of the present Code of Practice, but is also to be found, ipsissimis verbis, in two sections of the R. S. of 1870; one as No. 3444, under the heading of Sales, and another as No. 3613, under the title of Sheriffs; a circurn-. stance clearly indicating the intention of the Legislature to retain that mode of coercion of payment against delinquent officials as a conspicuous feature of our legislation.
The complaint that the writ of capias ad satisfaciendum is not defined by any law now in force, is not founded and cannot defeat the application of the remedy sought.
The writ was once recognized in this State as one susceptible of being issued against ordinary debtors, even after judgment. Such debtors *34can, even now, in certain eases, be arrested and confined until judgment. The writ which now can issue against delinquent officials is in its character and nature, in its purpose and object, the same, and is to be regulated in the same manner as that which formerly issued against ordinary debtors after judgment — with this difference, that the latter could be released from custody by making a cession to their creditorsj while the former, as unfaithful depositaries, being deprived of the benefit of the acts passed for the relief of insolvent debtors continue in custody at the expense of the judgment creditor until the debt has been satisfied. R. S. see. 1809 and sec. 92.
Under the legislation previously in existence, the judgment creditor had the right, where no property of the debtor could be found, to qpply to the cleric, whose duty it was to deliver it to him, for an order to imprison the body of the debtor (a capias ad satisfaciendmn,) until he shall have made a cession of his property to his creditors and obtained a discharge, in conformity with the act for the relief of insolvent debtors, in confinement. Under this order, it was the duty of the sheriff to confine the body of the debtor, unless he paid the amount of the judgment with interest and costs, and unless he took the prison limits. Grenier, C. P. Art. 726, et seq.
In cases like the present one, the writ is issued by the clerk and is to be executed by the sheriff, if against a former sheriff, or by the coroner if against an actual sheriff, according as the defaulter is a former or an actual sheriff.
Courts of justice have, as a rule, the right and power to incaicerate officials under their control and to detain them until they have complied with their duties, as is illustrated by the provisions concerning executors and other administrators, of tutors and curators. C. P. 1011, 1012.
Article C. P. 730 is the law governing this case and it provides for the remedy to which the plaintiffs are entitled.
In conclusion, we must state, that we have made it our duty, on the reexamination of the case, on the rehearing, to give it a more thorough consideration in view of its importance, the more so, as we had not deemed necessary to answer all the objections made to the proceeding, which was for the first time brought to judicial attention for .enforcement. We might have simply adhered to our previous conclusions, but we have preferred to show that the matter had again received our serious consideration and had been once more thoroughly investigated, however prone we may be to the belief that the ruling will not qrrove consonant with the views of the party cast in this controversy.
We find no error either in the opinion or judgment heretofore delivered and can alter neither.
It is therefore ordered that our previous decree remain undisturbed, at the cost of appellee, who shall pay costs in both courts.