Walmsley v. Robertson

Egan, J. The plaintiff insists that this was not a lease, but a sale. It has none of the elements of a sale, and contains no language indicating a purpose to sell. The parties assume in express terms the qualities of lessor and lessee. The plaintiff has no title to slander, and not such possession as entitled him to bring this suit, which does not lie against a possession with title. Copley v. Hasson, 4 A. 531. [163] It is in general true that attorney’s fees cannot be allowed upon a dissolution of this kind of injunction, and that the party is remitted to his action on the bond. But in this case where a plaintiff has dragged his own lessor into court in an action of jactitation, and is met by evidence that he has himself slandered the title of his lessor, the latter is entitled to damages. 14 La. 48; 2 R. 331; 12 A. 873. We cannot amend the judgment as prayed by the defendant so as to include the rents. They are not recoverable in this action, but must be sued for independently, as must likewise the declaration of forfeiture of the lease, to which the matter of rents will be an incident. The judgment below rejected the demand of plaintiff and gave the defendant $300' damages as attorney’s fees. Judgment affirmed.