Brown v. Police Jury

The judgment of the court was pronounced by Rost, J. The plaintiff has instituted this action to recover from the defendants the amount of an adjudication made to him, under the act of 1829, for the construction of a levée in front of a tract of land belonging to non-residents. The adjudication, the construction of the levée, and its acceptance by the inspector, are admitted, as alleged; but the defendants contend that the action is premature. There was judgment against them, and they appealed. The only question of law which the case presents is, whether the plaintiff was bound to discuss the land upon which the levée was made before he could proceed against the parish. The appellee maintains that the privilege granted by the act of 1829, to parties who have, undertaken the making of a levée is but an accessory to the principal obligation, and that the party in whose favor this stipulation is piade may, or may not, avail himself of it. It has never been considered by our predecessors or ourselves, thaf adjudications under the a.ct of 1829, created a direct obligation against the parish. The decisions heretofore made seem to consider the police juyy in the light of a surety, not of a principal debtor. Theactof 1829, under which the plaintiff claims, maltes the land directly liable to him, and in our opoinion establishes his first remedy under the adjudication. Had this remedy been resorted to, it is in evidence that, under an ordinance of the defendants, the land would have been purchased by [181] them for a sum .sufficient to pay the plaintiff, and the privilege which he has, Would thus have inured to them benefit. We think they cannot be deprived of this right. It is urged that the defeendants have alleged in their answer that, the remedies secured to the plaintiff by law were lost in consequence of the acts and omissions of their officer, and that, under this judicial admission, the plaintiff could proceed directly against the parish, as was done in the case of Newcomb v. Police Jury, &c., 4 Rob. 233. The defence of the police jury was perhaps ill advised. But the plaintiff has proved that it was unfounded, and that all the formalities required had been complied With. Considering that the police jury are nominal defendants, and that it is the tax payers of the parish who are to be affected by our decision, we cannot hold them to allegations made in error by their agents. Millaudon v. First Municipality, 1 An. 215. It is, therefore, ordered that the judgment in this case be reversed, and that there be judgment against the plaintiff as in case of non suit. It is further .ordered that, the plaintiff pay the costs in both counts.