text:
    No. 7933.
    Hugh Daspit vs. Louise Ehringer.
    In a suit for a (livores, tlie testimony of' both husband and wife is inadmissible, and consent cannot render its admission legal.
    Defendant in the suit for a divorce, based upon, a .judgment of separation from bed and: board, may plead the nullity of that judgment, instead of appealing therefrom or attacking it in a direct action'of nullity.
    Sec. 138, Bev. Sta., was not repealed by Act Bo. 76 of 1870.
    EPEAL from the Sixth District Court, parish of Orleans. Mglitor, J.
    Cotton & Levy for Plaintiff and Appellee.
    First — Suit for a final divorce upon a judgment of separation from bed and board, will be maintained where it is shown that there has been no reconciliation since date of judgment, and one year has-expired from date of rendition, nor is it necessary to aver or prove an effort for reconciliation.
    Second — Art. 138 C. C. is not repealed by Sec. 2, of Act No. 122, of 1877. On the contrary, Sec. 1 of the Act expressly recognizes its existence and enforces its provisions, except so far as amended.
    Third — A judgment rendered upon pleadings and evidence against the defendant, will not be opened upon the allegation that it was a consent judgment, where the party did not appeal nor bring an action, to annul, though having full knowledge of its rendition for eighteen months.
    Fourth — Ruling of judge a quo, excluding testimony,,was correct.
    W. S. Benedict for Defendant and Appellant.
    First — Where a consent judgment of separation from bed and board is urged as the basis for an action, it can, as between husband and' wife, be enquired into.
    Second — The evidence of the husband, as the only witness to establish no reconciliation was had by him with his wife, is insufficient, as the law obliges him to make an effort toward a reconciliation with her.
    Third — Evidence is admissible to prove the wife attempted a reconciliation with her husband.
    Fourth — There has been no law since Act No. 122 of 1877, to authorize-a separation from bed and board between husband and wife.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit for a divorce, based on a judgment of separation a mensa et ihoro, the lapse of one year since its rendition- and the absence of reconciliation.

The defendant excepted, that the petition disclosed no cause of action, in this, that it does not set forth, that the plaintiff ever attempted to effect a reconciliation.

The exception being overruled, the defendant pleaded the general issue and charged specially the invalidity of the judgment of separation.

On the trial, the plaintiff and the defendant were heard as witnesses, the former without, the latter notwithstanding, objection ; to the overruling of which a bill was reserved.

The defendant offered to introduce evidence to show the invalidity of the judgment of separation, but, upon objection, she was not allowed to do so, and a bill was retained to the refusal.

I. The exception of no cause of action was properly overruled. It is not necessary that, in a suit of this description, the plaintiff, who-obtained the judgment of separation, should allege that he has made advances for a reconciliation to his consort, who, by the judgment of separation, was found to have committed some reprehensible act. It was for the defendant to make an overture had she thought one-proper under the circumstances.

On the Merits.

II. The evidence of both plaintiff and defendant, who were then husband and wife, R. C. C. 136, was reprobated by law and inadmissible. Consent could not have legalized Its reception. 32 A. 643 ; 11 A. 628 ; R. C. C. 2281,136.

III. No-other evidence having been introduced to show absence of reconciliation, the plaintiff should have been non-suited. On the strength of her answer, the defendant offered to prove the invalidity of the judgment of separation from bed and board, but the court refused The evidence, on the ground that the attack could be made only by appeal or suit in nullity.

This-is perfectly true, on general principle ; but in a case like this, which necessarily first rests upon the existence of a valid judgment of •separation from bed and board, the validity or invalidity of such judgment was of vital importance. Upon the charge made in the answer, it was directly at issue and could have been inquired into in the absence of a formal suit in nullity, as the answer, couched as it is, may be •considered as partaking of the nature of a reconventional demand, justifying the inquiry and an adjudication upon it. The charges preferred •are grave. Judgments of separation from bed and board should be rendered neither upon the real nor upon the forced apparent consent of parties. 3 A. 328 ; 16 L. 26. Pothier Cont. de Mar., vol. 2, Nos. 517, 518. Fenet, Discours et Motifs, v. 9, 248 et seq.

The defendant, having charged that the judgment was vulnerable and susceptible of annulment, should have been permitted to offer evidence in support of her allegation, although the plaintiff failed to substantiate his averments. The appellant had a clear right to be heard on the issue of nullity, which, if decided in her favor, would be destructive of plaintiff’s present action. It was .unnecessary for her to ask the nullity of the judgment in a different suit, which, on the trial of this case, could have been cumulated with it. The law does not favor a sircuity of actions. What she could have done in a distinct suit, she could do in the present one, and in the manner that she has done. 11 A. 510, 287 ; 13 A. 343 ; 28 A. 815 ; 5 A. 208 ; 12 A. 197 ; 21 A. 329 ; 7 M. 490, 567 ; 14 L. 58 ; 2 A. 494.

IY. The theory of the defendant, that the judgment is a nullity because rendered in a case brought at a time when there was no law in force authorizing separations from bed and board, is not founded.

Although at first glance it may seem that article 138, R. C. C. was apparently repealed by Act 76 of 1870, the object of which was expressly to amend and re-enact it, so as to read in the language which the act contains, still such is not the fact, for the double reason : 1st, -that its provisions were virtually incorporated in the substituted article, which, by enlargement, is made the more comprehensive, as it •embraces within its elastic compass cases not previously enumerated ; .and, 2d, that the following article, 139, which the act did not purport to touch, embodies and retains, in full vigor and vitality, by express mention, as' a component part of itself, article 138 such as it stood before it was in the least modified by the act of 1870.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be reversed, and that the case be referred to the Civil District Court for the Parish of Orleans, which has superseded the court a qua, there to be further proceeded with according to the views herein expressed and according to law; the plaintiff and appellee to pay costs of both courts from the filing of the answer.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 7988.
    State of Louisiana vs. Wm. Vance.
    It is no valid objection to an Indictment that it is signed by the District Attorney pro tem-pore, when this officer has acted in ignoranoe of the fact that the District Attorney was at the time in the parish and on his way to the parish seat.
    Evidence of the quarrelsome and dangerous character of the deceased was properly rejected, when offered on the ground, laid for its admission, that he had said that u if accused continued to bother him about a certain debt, he would kill him,” and that said statement had been communicated to the accused.
    APPEAL from the Fifteenth Judicial District Court, parish of Pointe Coupee. Toist, J.

    Robert Semple, District Attorney, and J. C. Egan, Attorney General, for the State, Appellee.
    First — In the absence of the District Attorney, the District Attorney pro tempore is authorized and required to discharge and perform the duties required by law of the District Attorney. R. S. 1074 and 1075,
    Second — -The accused cannot object that a.copy of the indictment was not served upon him after going to trial. 4 A. 379.
    Third — Evidence offered generally to prove that the deceased -was well known and understood to be “ a quarrelsome and savage man,” is inadmissible.
    Defendant and Appellant unrepresented in this Court.
   The opinion of the Court was delivered by

Fenner, J.

The defendant appeals from a verdict, judgment and sentence for manslaughter.

We are left to examine his defenses without the aid of any brief by his counsel.

The record presents a demurrer and four bills of exception.

The demurrer to the indictment is on the ground that it is signed by the District Attorney pro tempore and not by the District Attorney, although it is said the latter was in the parish at the time. The record discloses that the District Attorney, who resided in a different parish, had probably landed in the parish and was en route to the parish seat when the indictment was signed and returned into court by the pro tempore officer, but that he had not reached the court house, and the pro tempore attorney was not aware of his presence in the parish at the time.

We think the authority granted the District Attorney pro tempore under sections 1074 and 1075 of the Revised Statutes, is broad enough to cover the case.

The first bill of exception is taken simply to the j udgment of the court in overruling the demurrer.

The second is taken to the action of the court in admitting testimony to establish the circumstances under which the District Attorney pro tempore acted. The testimony was properly admitted. Had none been taken the presence of the District Attorney in the parish would not have been established, and the demurrer would have fallen under the weight of the presumption omnia rite acta.

The third bill is taken to the overruling by the court of his objection to going to trial on the ground that the copy of the indictment - served on him was not a true copy of that found. The variances shown are too trivial to require notice.

The fourth bill is to the ruling of the court rejecting evidence offered by the accused to prove the quarrelsome and dangerous character of the deceased, the ground laid for the admission thereof being that the deceased had said to one Nurdin “that if accused continued to bother him, deceased, about a certain debt, he, the deceased, would kill accused,” and that said statement had been communicated to accused.

The judge a quo excluded the evidence, on the ground that such conditional threat was not the kind contemplated by the law as a foundation for the admission of evidence of the kind offered. We think the judge did not err. Such conditional threat does not bring the case within the reason of any exception to the general rule excluding evidence of the character of the person killed. • Taking the statement of deceased as serious, it affords accused not the slightest reason to suppose that deceased intended any hostile action towards him unless preceded by the designated action of the accused. It is not shown that accused did further annoy the deceased about the debt; nor does the record disclose any action on the part of deceased evincing any hostile purpose.

, Under these circumstances, the character of the deceased could not afford the accused the least justification for the killing.

See, on this subject, 5 A. 489 ; 9 A. 46 ; 10 A. 453 ; 12 A. 679 ; 21 A. 473 ; 29 A. 593 ; 30 A. 341, 679 ; Wharton Crim. Law, pp. 545 to 551.

The judgment of the lower court is, therefore, affirmed.


author: Poché, J.

text:
    No. 6283.
    Mrs. M. R. Barrimore vs. James McFeely.
    .An action for damages resulting from a provisional seizure of furniture in a suit for rent, (in which it was decided that, the rent sued for, had been paid), needs not contain the allegation of malice or want of probable cause.
    'Such an action is not based upon the suit for rent but upon the wrongful use of the writ of provisional seizure.
    This writ having been set aside by a court of last resort it is prima facie established that said writ had been wrongfully issued and that damage was inflicted on the party whose property was seized.
    ‘This party is entitled only to the actual damage suffered by him, directly from the seizure oi his furniture.
    But for the want of care taken of the furniture whilst in charge of the constable, this officer is liable and not the plaintiff in provisional seizure,
    j^PP.EAL from the Fourth District Court, parish of Orleans. Lynch, J.
    F. C. Zacharie for Plaintiff and Appellee.
    T. Gilmore & Sons for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff sues for ten thousand dollars as damages alleged to have been caused to her by the act of defendant in suing out and executing a writ of provisional seizure against her movable effects in a bouse which she was then occupying and. renting from the defendant.

She alleges that being indebted to defendant for the rent of April, 1872, in the sum of $26, and wishing to meet the the current rent of May, of the same year, not yet due, she tendered to defendant a city school certificate for $55, of market value of $44, which the defendant retained in his possession an unreasonable length of time, and that before returning the same to her lie brought suit against her in a .justice’s •court, accompanied by a provisional seizure of her furniture, and that on a plea of payment, a final judgment was rendered on appeal by the Third District Court of the parish of Orleans, rejecting plaintiffs demand and setting aside his provisional seizure.

She alleges that she suffered the damages claimed through the wrongful acts of the defendant, by expenses necessarily incurred in her defense, by the deprivation of the use of her furniture, by damage to her feelings and to her health, and by injury done to her character and credit by the statements of defendant, in charging that she would not pay her rents or debts without compulsion by judicial process.

The case was tried by a jury, who found a verdict of $150 in her favor, and the present appeal is taken by the defendant from a judgment rendered conformably to the verdict. Plaintiff also complains of the verdict and the judgment, and prays for an amendment increasing the amount of damages allowed her to two thousand five hundred dollars.

Defendant excepted to plaintiffs petition on two grounds :

1st. That an action in damages for slander could not be cumulated with one for malicious prosecution.

2d. That the petition disclosed no cause of action in failing to allege that defendant’s action for rent, accompanied by provisional seizure, had been instituted with malice and without probable cause.

The exception was properly overruled by the District Judge.

The action in damages is not on a bond, and plaintiff can urge damages caused by the wrongful acts of the defendant either by judicial process or by words spoken, and is intimately connected with the subject-matter of his suit for rent. As no evidence was introduced in support of the charge of slander on the trial of the cause, we understand that defendant virtually abandons that ground of his exception, and that this particular alleged cause of action is, therefore, eliminated from this case.

The reasons urged and the authorities quoted by defendant in support of his second ground of exception apply with great force to actions in damages for malicious prosecutions or groundless law-suits, and would utterly annihilate this cause if the damages claimed were predicated upon McFeely’s judicial demand for his rent. In that case it would have been incumbent on plaintiff to allege and eventually prove malice or want of probable cause, in default of which allegation an exception of no cause of action would necessarily prevail. But plaintiff relies for recovery on the alleged wrongful use and application of the summary remedy of provisional seizure. A marked distinction exists, and must be made, between McFeely’s suit at law for the recovery of his rent and the summary remedy which he thought ñt to invoke in aid of his main action.

If the object of this suit was to hold him in damages for suing for rent, which was on trial proven to have been paid, and on the ground therefore that his suit was malicious and without probable cause, the action could not be maintained in the absence of such averments. The _ law looks with favor on the efforts of parties who invoke the aid of courts for the vindication of rights or for the recovery of property, and does not tolerate that the unsuccessful litigant should be punished in damages unless it be in cases where his acts are alleged and proven to have been prompted by malice or unsupported by probable cause.

But a different rule applies to litigants who invoke the use of any of the summary remedies created by law for the preservation of rights in extraordinary cases, and under which a party may be forbidden to perform certain acts, or when property may be wrested from his possession pending the main suit, such as the writs of provisional seizure, attachment, sequestration, injunction, etc.

Parties who wish to wield these powerful weapons of the law against their adversaries, do so at their own risk and peril, and are fairly-warned that the law frowns down the improper use of such arms. 11 M. 284; 3 L. 291, 103 ; 6 L. 271 ; 13 A. 214.

In regard to the writ which is alleged to have been improperly used in this case, the law carefully conditions its use by holding the party invoking its application personally responsible in damages in case it shall have been wrongfully obtained. C. P. art. 295.

In the case of Steward vs. Sanneborn, 8 Otto 287, which is strenuously urged upon us by defendant, the rule laid down is applied to an alleged malicious prosecution under the bankrupt law, and it presents a case where Steward had ñled, as an alleged creditor, an ordinary suit at law, which was dismissed because he failed to prove that he was a creditor, and in which it was correctly held that the essence of the suit in damages was in the proof of malice or want of probable cause.

In the present case, plaintiff alleges that the writ was set aside by the final dismissal of McEeely’s suit, and under our jurisprudence when the summary remedy is set aside it is a %¡rima facie evidence that it was wrongfully issued, and that damage to some extent was sustained ; and it was, therefore, unnecessary to allege malice or want of probable cause.

On the Merits.

The record shows that final judgment was rendered in favor of Mrs. Barrimore, supporting her plea of payment of the rent claimed of her at the rate of $26 a month for April and May, 1872 ; and under such a judgment the conclusion is inevitable that the writ of provisional seizure was decided to have been wrongfully obtained. On this issue the judgment is conclusive, and though we may differ with the District Judge in his conclusion that the plea of payment of $52 was supported by proof of tender to the creditor of a voucher for a face value of $55, but of a market value of atD most $44, yet we are powerless to revise his judgment, which is res judicata in the premises, and fixes, under the rules of law hereinabove considered, a liability for damages on the party suing out the writ of provisional seizure.

But the want of malice and the eminently probable cause, which characterized the cause of MeEeely, are proper subjects of consideration in the measure of damages which should be allowed to plaintiff in this cause.

The record teems with evidence showing want of malice in him in his legal efforts to recover his suit; his only fault consisting in the retention of the voucher which he had not accepted in settlement of his claim. But under the stern rule of law, and the final judgment of the Third District Court, he must be held liable for the actual damages suffered by the defendant in the suit for rent, and caused by the provisional seizure of her furniture ; and in our opinion those damages consist of the fees of the attorney employed for her defense under the writ and of the deprivation of the use of her furniture. We do not think that he is responsible for the damages caused to the property seized by being improperly stored.

These are the acts of the constable, for which he is responsible personally and under his official bond. It was his bounden legal duty to take proper care of the furniture while in his custody, and the seizing creditor, who is not shown to have directed or otherwise interfered with the officer in the discharge of his duty, cannot be held liable for damages caused to the furniture through the negligence, recklessness or other illegal acts of the constable.

The jury fixed the damages sustained by Mrs. Barrimore at one hundred and fifty dollars, without specifying in detail the basis of their finding. We are, therefore, unable to ascertain what particular elements of damages were considered by them as affecting their verdict.

But even if they confined their investigation to the expenses incurred by plaintiff in her defense, and to the deprivation of the use of her furniture, we conclude that they have done substantial justice between the parties, and the evidence, which we have carefully considered, does not authorize us to disturb their verdict.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


author: Bermudez, C. J.

text:
    No. 8097.
    State of Louisiana ex rel. Follet et al. vs. N. H. Rightor, Judge, etc.
    The writ of Prohibition is not a writ of right, and should only issue when the court tobe prohibited, having no jurisdiction at all, rationo materice and ratione personce, clearly usurps jurisdictional power.
    The writ should not issue to prohibit a District court to punish for contempt a party defendant in an Injunction suit, on the ground that said court had no jurisdiction of the suit.
    The case being appealable, the Relators have an adequate remedy by Appeal and are not entitled to the interposition of the prohibitive authority of this Court.
    ^PPLICATION for Writ of Prohibition.
    Brice & Pardee and E. Howard McCaleb for the Relators.
    First — A writ of prohibition may be granted by the Supreme Court to prevent a District Judge from taking cognizance of a suit involving issues pending before the United States Circuit Court (5 R. 27), and also before a District Judge of co-ordinate powers, who had previously acquired jurisdiction over the parties and the subject-matter of the controversy. O. P., arts. 94 and 335. In such cases prohibi- , tion is the proper remedy to prevent conflicts of jurisdiction. Blackstone’s Commentaries, Book III, page 112 ; C. P., arts. 846 and 847.
    ¡Second — The court first seized of jurisdiction retains it, to the exclusion of all other tribunals. 1 Woods, R. p. 266; High on Injunc- • tions, 117, p. 13; \ i7, p. 33.
    “Third — Alleged intentions to violate Act No. 63 (approved April 13th, 1877), which makes it a misdemeanor, punishable by fine and imprisonment, to discharge, or attempt to discharge, the duties of a pilot without a license, do not authorize the issuance of an injunc'-tion by a civil tribunal having no jurisdiction whatever over the ■territory where such misdemeanors must necessarily be perpetrated. C. P., art. 90. Civil tribunals have no jurisdiction to restrain by injunction the commission of crimes or offenses. High on Injunctions, l 23.
    Fourth — The Association of Branch Pilots, authorized by section 2707, Rev. Stats, of 1870,is a legal corporation (Rev. C. C. arts. 432 et seq,; Field on Corporations, section 15 ; Potter on' Corporations, section <6), and, therefore, an injunction against the corporation included all . khe members (High on Injunctions, (S 863); but even if it be a partnership, suit could only be brought at its domicile, and such suit is binding on the partners. C. P. art. 165.
    Fifth — Where the acts enjoined relate to the functions of public officers (id est Branch Pilots of the port of New Orleans), the court having jurisdiction over the locus in quo their offices are established, and the duties appertaining thereto performed, is the proper tribunal to apply to for redress of official grievances, and not the court of the ' domicile.
    "Sixth — Judgments punishing for contempt of an injunction are reviewable by certiorari upon jurisdictional grounds (Freeman on Judgments, 1137 ; Batchelor vs. Moore, 42 Cal. 415), because no appeal lies. J2x 'parte Parsons, 4 A. 105.
    ¡Seventh — When an appeal has been granted, the lower court is divested of all jurisdiction over the matters embraced by the appeal, except to test the solvency of the surety on the appeal bond. No appeal lies from an order dissolving an injunction on bond, if the act prohibited does not work an irreparable injury. 2 A. 321; 4 A. 147 ; 12 R. 488. The right to, and effect of, an appeal from an order of dissolution must necessarily be determined by the appellate court. 14 A. 57.
    lEighth — After dissolving an injunction on bond, the court a qua cannot punish defendants for contempt. High on Injunctions, l 873 ; Edward’s Chancery, E. 188 ; 9 Cal. 18.
    Ninth — Article 308, C. P., does not authorize the imposition of a fine for violating an injunction, but only imprisonment, or the destruction of whatever may have been done in contravention of the order.
    Tenth — Where relators have verified their application for prohibition and certiorari by affidavit, as required by arts. 848 and 859, C. P., • and the judge a quo fails to send up “ a duly certified copy of the record ” (C. P., art. 861), as required of him, his statements, or that, of counsel, on questions of fact, should be disregarded, because it was his duty to comply with the order, and send up the copy of the-proceedings called for.
    In the rule nisi, granted by this Court, on an application for prohibition,, the Answer of the defendant should be sworn to.
    J. E. Beckwith for Eespondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a Prohibition. The rela-tors charge: that, on the 25th of October last the Civil District Court for the parish of Orleans issued an injunction against them to prevent them from acting in a certain manner ; that ón the day following, this injunction was dissolved on bond; that on the 29th of the same month, a sus-pensive appeal was asked, obtained and perfected from the order to dissolve ; that on the 1st of November a rule was taken to punish them for contempt of court for violating said injunction ; that on the 26th following said rule was made absolute ; that they were condemned to pay-each a fine of $25, or be confined five days in the Parish Prison, the-court announcing that: “any further disobedience of the injunction will be visited with the utmost penalties of the law.”

They charge that the Civil District Court for the parish of Orleans-has exceeded the bounds of its jurisdiction in entertaining both said injunction suit and said proceedings for contempt.

1st. Because the Twenty-Eourth Judicial District Court for the-parish of Plaquemines, on the 22d of September, and the United States-Circuit Court for the District of Louisiana, on September 1st, 1880, were-seized with jurisdiction of the matter sought to be agitated before the Civil District Court between the same parties.

2d. Because the injunction was dissolved on bond.

They say that they have pleaded to the jurisdiction of the Civil District Court on the trial of the rule for contempt, but that the rule was-made absolute.

They pray that the District Judge be prohibited from taking further cognizance of the cause.

The defendant judge has made a return to the rule for a peremptory prohibition.

The relators complain that this return is not sworn to ; but this is immaterial, even unnecessary, as the judge answers in his official capacity under his official oath. There are cases in which no return at ■all may be necessary, as where the application can be refused on its face.

It does not appear from the showing made that the relators have pleaded to the jurisdiction of the District Court by exception to the petition in the suit, nor that, if such plea was filed, it was overruled by the court.

It may well be that the District Court virtually overruled the plea to its jurisdiction, offered on the rule for contempt, but its judgment in such a proceeding is not reviewable by this Court. Assuming that the plea was a good one to the action, the court had a right to ignore or disregard it, on the trial of the rule for contempt, for the issue then was merely, had an injunction issued and been notified to the defendants, and had the defendants, without legal warrant, disobeyed it ? It will not do for parties enjoined, rightfully or wrongfully, to take the law in their own hands, and without previously having the injunction issued dissolved by the court, by giving bond or otherwise, do and perform those things or acts which the writ forbids them from doing and performing. The proper course would have been to obtain first a- dissolution, and afterwards to have done and performed that which had been prohibited.

It appears that one of the defendants only was served with the injunction, and that the other two received no notice ; but this is of no moment, as they all afterwards moved for its dissolution by giving 'bond, which, however, proved of no avail, as the plaintiffs in the suit, upon proper averments, sought and obtained a suspensive appeal from the dissolving order, thereby keeping in its integrity, in full force and effect, the injunction issued. It may be that the plaintiffs were not entitled to a suspensive appeal from this dissolving order; but this is a •question which cannot be determined in this proceeding, and which can only be solved when presented on the appeal. O. B. 52, f. 211, 276.

It is perfectly clear that the Civil District Court did not exceed the bounds of its jurisdiction when it allowed and passed upon the rule for a contempt, C. P. 130,131, although it may be that it had no jurisdiction ■over the main demand, which appears to be appealable.

We are not informed whether an exception was filed to the jurisdiction of the court, in limine. Either it was or it was not. If it was, it may be that the court will sustain it and dismiss the suit, or overrule it and maintain the suit. In the former case, the defendants would have no cause to complain. In the latter case, they would not be debarred of their defense on the merits. From a judgment against them they could appeal and submit to this Oourt the exception to the jurisdiction, as well as their defense on the merits, and the Oourt would determine the questions presented in the order and manner in which they should be decided. If, on the other hand, the defendants have not filed such exception in limine and have answered, it may be claimed that they have submitted to that jurisdiction, abandoning means of defense personal to-themselves. It is possible that it is precisely because no such exception was filed, that the court made the rule for contempt absolute.

It is not in all the cases in which a court may have no jurisdiction that a prohibition can issue from this Court. It is not a writ of right. 19 L. 167 ; 19 L. 174; 27 A. 336 ; 29 A. 360. It is an extraordinary one-(10 R. 169; 4 R. 48), which can. only issue where the court, having no jurisdiction at all, ratione material and personae, clearly usurps jurisdiction. C. P. 846 ; 4 A. 11 ; 11 A. 696 ; 14 A. 7, 504 ; 2 A. 236 ; 16 A. 186 ; 27 A. 158 ; 20 A. 240. It then issues only after a fruitless attempt in the lower court for relief (10 R. 169 ; 10 A. 552 ; 29 A. 806), and in the sound discretion of the court having appellate or supervisory jurisdiction, as-the case may be. 19 L. 174 ; 4 R. 48 ; 11 A. 696 ; 12 A. 513 ; 14 A. 504 20 A. 240 ; 27 A. 158 ; O. B. 52, 277. See, also, State vs. Falls, 32 A.-553; Wells vs. New Orleans, 32 A. 676 ; State vs. Judge Sixth District Oourt, 32 A. 549, in which this Oourt has expounded the constitutional provision (article 90) vesting it with a supervisory jurisdiction over inferior tribunals.

This ease being appealable, the relators have an adequate remedy by appeal, and are not entitled to the interposition of the prohibitive authority of this Oourt in the case now before it. The Civil District Court,, in consequence of the suspensive appeal granted from the order dissolving the injunction; had a right to consider the injunction operative, and' to proceed to enforce it, by the infliction of fine and imprisonment. O. P. 131. The remedy of the relators consists in pleading to the jurisdiction by exception to the petition, in moving to dissolve the injunction,, in eventually trying the merits, and showing that the remedy was-wrongfully allowed. If justice is not done them in the lower court, and they claim that they are entitled to it, their next remedy will be by appeal to this Oourt, by which the differences between the litigants will have to be adjusted on the pleadings and the evidence.

It is, therefore, ordered that the preliminary restraining order herein made be rescinded, and that the application for a prohibition be-refused at the cost of relators.


author: Levy, J. Poché, J.

text:
    No. 8028.
    State of Louisiana ex rel. Mary W. Crean et al. vs. P. L. Bouny, State Tax Collector, et al.
    The Appeal in tins case is dismissed for want of jurisdiction in this Court, because it is impossible to show in the premises, that the appealable interest of any of the Appellants individually or of all of them collectively, can be affected by the decision of the cause in an amount exceeding one thousand dollars.
    ^PPEAL from the Civil District Court, parish of Orleans. Houston,

    R. H. Marr for plaintiffs and Appellants.
    First — The Act No. 93, of 1880, is in violation .of the Constitution, Articles 29, 44, 48, 56.
    Second — Taxpayers and creditors have the right to invoke the unconstitutionality of an act when the carrying out of its provisions injures them pecuniarily.
    Third — Where suit is brought to prevent the doing' of an illegal act by officers of the State, they alone are necessary parties defendant.
    J. C. Egan, Attorney General, for Defendants and Appellees.
    First — There are no defendants or proper parties before the Court.
    Second — The Court is without authority to grant an injunction in a case where there are not proper parties.
    Third — Of two constructions, that must be adopted which will render the statute constitutional, even though it be not the most obvious ; provided that violence is not done to the language and terms of the act; and if a statute is capable of a construction which will make it constitutional, this construction will and must be adopted.
    Fourth — -This Court has no jurisdiction in cases involving an amount less than one thousand dollars.
    Fifth — A particular individual cannot sue for a grievance which affects the entire public as well as himself.
    Mott & Kelly on same side.
    ;First — The Court is without j urisdiction, because it cannot be made to appear from anything in the record that the amount in controversy exceeds one thousand dollars.
    Second — If the suit be considered one to distribute a fund, the Court is without jurisdiction, because the distributees are not parties.
    Third — If the matter in dispute be considered the use of claims to the amount of $267,412.31, in payment of licenses and taxes due the State, the Court' is without jurisdiction for want of proper parties, neither the State nor the holders of any of said claims being parties to this suit.
    Fourth — If this is a suit against the defendants individually, the Court is without jurisdiction, because the defendants are without individual interests in the controversy:
    Fifth — The suit is, in reality, a suit against the defendants iq their official characters, and substantially a suit against the State of Louisiana, which this Court is without jurisdiction to entertain.
   Motion to Dismiss Appeal.

The opinion of the Court was delivered by

Levy, J.

Appellees move to dismiss the appeal in this case, on the following grounds:

1st. That there is no averment, in the petition for injunction, that the amount in dispute, as to all or any of the petitioners, exceeds the sum of one thousand dollars.

2nd. That, as no community of title is averred between any two or more of the plaintiffs in the petition, it should, in order to give the Court jurisdiction, appear affirmatively, as it does not, that the amount in dispute, as to each individual appellant, exceeds one thousand dollars.

3d. That it appears from the whole tenor of the petition and the averments therein, that the only pecuniary interest which petitioners, individually or collectively, can have in the dispute in this proceeding is limited to the pecuniary loss or damage they may respectively suffer in consequence of the receipt by the State, in settlement of taxes due prior to January 1st, 1880, of the certificates issued under Act 93 of 1880 ; and there are no facts averred or data afforded by the petition from which, as elements of calculation, this Court could, by any process of computation, determine that the amount in dispute, as to any or all of the relators, exceeds one thousand dollars ; or that any or all of the relators would suffer loss or damage to that amount, dr any other definite amount; and that such being the case, the averment in the petition of appeal, that the amount in dispute exceeds one thousand dollars, not being deducible from or consistent with the facts averred in the original petition, does not suffice to confer jurisdiction on this Court.

4th. That all the respondents being State officers, and proceeded against herein in their official characters, are without any pecuniary interest, and there is no amount whatever in dispute between them and the petitioners, or any of them, these officers being the only parties made defendants.

The suit was instituted by Mary W. Crean, Bertrand Saloy, Joseph Bayle and Henry J. Rivet, in which they pray for an injunction inhibiting the defendants, Tax Collectors, State Auditor and State Treasurer, each in his official capacity, from receiving or permitting to be used in payment of taxes or licenses due the State of Louisiana, any claim or •claims approved under Act No. 93 of 1880; and that the said Act No. 93 be declared to be unconstitutional, of no effect and void. This prayer is based upon the allegations in the petition, averring: that one of the petitioners, Mary W. Orean, is the holder of twenty-eight Auditor’s warrants, aggregating in amount one thousand and four dollars and ninety-one cents, issued in accordance with and by the authority of Act No. 126, of 1880 ; that under the provisions and requirements of said Act No. 126, they are made payable out of certain taxes and licenses due the State of Louisiana prior to the 1st of January, 1880, and collected subsequent to that day ; that these warrants are convertible into certificates, in sums of five, ten, twenty and fifty dollars, at the option of the holders, and •when so converted are made receivable for all taxes and licenses due the State subsequent to January 1st, 1879, and prior to January 1st, 1880, except taxes due the interest and levee funds; and that said certificates, after certain requirements of the Act No. 126 are complied with, shall be receivable for all taxes and licenses due the State prior to January 1st, 1879, and all costs, etc., therein, except taxes due the interest and levee funds ; that the remission of costs and penalties on delinquent taxes and licenses, and the right of redemption of forfeited property, were conditional and dependent on the payment of the principal of such delinquent taxes prior to the 1st of January, 1881; that Act Nu. 93, of 1880, author-' feed the receipt of the claims, approved under the provisions of this last mentioned act, in payment of any taxes and licenses due the State prior to the 1st of January, 1880. They further aver the unconstitutionality of the Act No. 93 on various grounds, fully set forth in the petition, and that 8267,412.31 of claims under said act have been approved, and that said approved claims have been put upon the market and are being used and have been received in payment of taxes and licenses due the State prior to 1st of January, 1880 ; that the greater part, if not the whole, of these approved claims, have passed out of the possession and control of the persons in whose favor they were approved and issued, and petitioners have no means of ascertaining who are their holders and owners ; that each and all of the petitioners are citizens of the State of Louisiana, taxpayers, and owners of property in the city of New Orleans, subject to taxation and actually taxed by the State of Louisiana — Mary W. Crean owning such property of the value of at least $1000, Bertrand Saloy of $135,000, Joseph Bayle of $10,000, and Henry J. Bivet of $8000 ; that as citizens, owners of taxable property and taxpayers, they are each and all of them interested in seeing that no part of the revenues of the State shall be applied to other than valid legal obligations of the State, and that the full amount of the taxes and licenses due the State Shall be paid into the treasury, either in money or in valid legal obligations of the State, which she is bound to pay out of the taxes and licenses ; that the effect of Act No. 93 will be to diminish the amount which the State will realize from taxes and licenses, and the capacity of the State to pay its pre-existing and unquestioned indebtedness ; that the use of the claims approved under Act 93, in payment of taxes and licenses, will increase the existing excess of expenditures over receipts and add to the burdens of the tax payers, by making it necessary to raise a corresponding amount by taxation, and thus irreparable injury will be done to these petitioners. The petitioner, Mary W. Orean, alleges that, in addition to the interest which she has as a taxpayer, citizen and property owner, she is also the holder of the warrants above mentioned, amounting to $1004.91, which are receivable in payment of taxes due subsequent to January 1st, 1879, And prior to January 1st, 1880, and that the receipt of the claims under Act 93 interfere with and diminish her rights to be paid out of the fund provided by Act Ño. 126, and her rights are and will be seriously impaired by means of the illegal issue and receipt of said claims thus coming into competition with her.

We have stated fully the reasons urged and grounds relied upon by the petitioners as being necessary to a full and proper comprehension of their claims and for the solution of the question of the right of appeal herein. The Constitution, Art. 81, declares, that “ the Supreme Court * * * shall have appellate jurisdiction only, which jurisdiction shall extend to all cases when the matter in dispute, or the fund to be distributed, whatever may be t.he amount therein claimed, shall exceed one thousand dollars, exclusive of interest.” In this case does the-matter in dispute exceed one thousand dollars? The petitioner, Mrs.. Crean, avers her ownership of warrants over that amount; that, under an act, which she charges to be unconstitutional, certificates to a large-amount, viz: upwards of $267,000 have been illegally issued and are made receivable in payment of certain taxes and licenses, and out of the fund arising from such taxes and licenses, her warrants are made-payable by law. It may or not occur that her warrants may be-depreciated, or indeed entirely annihilated in value, by the receipt of the alleged invalid certificates issued under Act No. 93. This is a matter which is susceptible of proof, and, non constat, that the loss to which she may be subjected for the reasons averred in the petition may be-determined by proof and by a certain process of computation. We do not think it necessary to pass upon the extent of the interest of the-other petitioners in the decision of this motion. The question of the constitutionality of Act No. 93, under which certificates to the amount of $267,412.31 have been issued and made receivable for taxes and licenses;out of which the petitioner, Crean, claims her warrants, are entitled to be paid, is directly presented to us, and we think the record discloses such interest in her as vests us with jurisdiction of this appeal.

The motion to dismiss at this stage is denied ; but if on the trial on the merits an appealable interest should not be proven, we shall exercise the right of dismissal.

On the Meeits.

Poché, J.

When we disposed of the motion made to dismiss this-appeal, we expressly reserved our right to sustain that motion, “ if on the trial of the merits an appealable interest should not be proven.”

In view of the public interest involved in the decision of the alleged, unconstitutionality of an important legislative enactment,, regulating-matters of vast, legal and pecuniary interest to the State, we had hoped that a hearing of the cause on its merits would develop that the matter-in dispute between the parties to this suit did exceed one thousand dollars.

. But after hearing the oral argument of counsel on both sides, and carefully considering their able briefs submitted on this point, we are-reluctantly constrained to recognize that we are deprived of jurisdiction of the cause. With the exception of suits for divorce and separation from bed and board, and of cases involving the legality or constitutionality of any tax, toll, or impost, or of any fine, forfeiture, or penalty imposed by a municipal corporation, our civil appellate jurisdiction must be tested by the pecuniary amount involved in the controversy,, as between the parties thereto. The magnitude of public interest awakened by the peculiar litigation, the importance of the legal questions involved, added to the dire consequences to flow from the execution of an alleged unconstitutional act of the Legislature, cannot alone be-invoked as the test of our jurisdiction in any given case, and cannot be-strained so as to clothe the judicial department of the State with the power to interfere with, or arrest, the execution of the acts of the legislative department. To justify such an interference, which in proper cases is clearly sanctioned by the Constitution in all republican governments, the jurisdiction of the tribunal appealed to must appear unequivocally under some of the modes provided for in the organic law, in default of which courts must decline their aid or interference.

Under such a test it is impossible to demonstrate in this case that-the appealable interest of any of these appellants individually, or of all of them collectively, can be affected by the decision of the cause in an amount exceeding one thousand dollars.

It must be conceded that the defendants, State officers, whose offir •cial acts aloné can be affected, shaped or regulated by the decree, have no direct or personal pecuniary interest in contestation. And it appears •to us equally clear that no judgment can be rendered under these pleadings which could involve a gain or a loss, exceeding one thousand dollars, to any or all of the plaintiffs in this case.

If, as alleged, under the operation of Act 93 of 1880, the State as■sumes an indebtedness of $267,000, in violation of constitutional prohibitions, no attempt has been made by appellants to show, and we earnestly believe that no system of calculation can successfully demonstrate, how much of that sum each, or all of them, could be made to ■contribute as taxpayers ; nor has it been shown what loss would thereby be visited on Mary W. Crean, as a creditor of the State, by ther conser quent depreciation of her twenty-eight warrants. It has not been even pretended that appellants could claim a direct interest, or any share in, or out of the $267,000, as in the case of a fund to be distributed. For obvious reasons, but principally by having failed to make parties to this suit, the holders of the certificates making up that amount, plaintiffs would be precluded from asserting this as a test of our jurisdiction.

Viewed in every possible feature, the question is subject to but one ■solution, and that points to the denial of our jurisdiction.

It is, therefore, ordered that this appeal be dismissed at appellants’ •costs.


author: Todd, J. Bermudez, C. J.

text:
    No. 7998.
    Crescent City Live-Stock Landing & Slaughter-House Company vs. Police Jury, Parish of Jefferson, Right Bank.
    The Appeal -will he dismissed when granted from an order dissolving an Injunction on bond and said dissolving order does not work irreparable injury.
    An injury is not irreparable when it can be made good or repaired by payment of money.
    'The sworn allegation of plaintiff in Injunction, that the act to be enjoined will cause irreparable injury, is not conclusive of the fact and does not deprive the judge who granted the Injunction, of all discretion in dissolving it on bond.
    APPEAL from the Twenty-Sixth Judicial District Court, parish of Jefferson. Hahn, J.
    Eobert Mott, S. L. Gilmore and T. J. Semmes for Plaintiff and Ap■pellant.
    First — To determine whether an appeal will lie from an order dissolving an injunction on bond, under article 307 C. P., the Court is compelled to consider whether the order be erroneous ; if it be, the appeal lies.
    .'Second — The order allowing the inj unction in this case to be set aside on bond was erroneous : First. Because plaintiff had alleged and sworn that the act prohibited would work it irreparable injury. Second. The facts, as set forth in the petition, show that the act prohibited would work plaintiff irreparable injury. Third. The injury that the act prohibited would cause plaintiff is not one which can be wholly computed in dollars and cents.
    Third — An appeal will lie from an interlocutory order where the final decree on appeal cannot place the party where he stood before the interlocutory order complained of was granted.
    Fourth — On a motion to set aside an injunction on bond the allegations of the petition are to be taken as true.
    J. Fisk and Ohas. Louque for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff enjoined the defendant from granting permission to any one to establish a slaughter-house in the parish of Jefferson, alleging that such a grant of authority would be in violation of the rights, given them under their charter, to the exclusive privilege of slaughtering animals for market in said parish. It was further alleged that such action on the part of the police jury of Jefferson would cause the plaintiff a manifest “ and irreparable injury of fifteen hundred dollars and upwards.”

This injunction was set aside by the order of the judge who granted it, on the application of the defendant in injunction, upon the execution of a bond for six thousand dollars. From this order the plaintiff appealed.

The defendant has moved the • dismissal of the appeal on the ground that the order appealed from was an interlocutory one that could not cause an irreparable injury, and that, therefore, no appeal from the same would lie. This is the sole question presented.

Article 307 of the Code of Practice provides, that “ where the act prohibited by the injunction is not such as may work an irreparable injury to the plaintiff, the court may in its discretion dissolve the same, provided the defendant execute his obligation for such sum as the court may determine, according to the nature of the case,” etc.

Does the dissolution of the injunction on bond in this case work an irreparable injury to the plaintiff?

As a general rule no injury can be considered irreparable where the damage or loss caused by the act complained of can be made good or repaired by the payment of money, or where the party complaining may be fully reinstated in the position which he may have lost by the act complained of.

There are many injuries which, in the very nature of things, cannot he repaired by any money consideration. Such, for instance, as result from acts which outrage the feeling and wound the sensibilities, or deprive us of objects of affection and of things, perhaps trivial in themselves, but of inestimable value by reason, solely, of being associated with some precious memory or touching incident of our lives. Or, it •may be that the maintenance if the writ is required to preserve to us our homes, and to establish us in a state or condition which lost for the ■moment can never be recovered, nor the loss atoned for by money. In ■all this class of cases the injunction should be maintained because the injury from its dissolution would be irreparable. But the legal prohibition does not extend beyond this.

We have examined the pleadings carefully, and likewise the authorities cited by the plaintiff’s counsel, and we cannot discover that the plaintiff could possibly suffer such loss by the threatened act as money could not replace; and we are led the more naturally to this conclusion by the reflection that if the authority objected to is granted by the police jury, that but little progress could be made in the threatened works before the case could be tried on its merits.

The contemplated act on the part of the police jury of Jefferson ■may be in derogation of plaintiff’s chartered franchises. On this point we express no opinion. There is no question, however, that but for this alleged infringement of the plaintiff’s rights by the act in question, the entire subject-matter connected with the proposed grant of authority for the construction of a slaughter-house, would lie entirely within the province and discussion of that body. This consideration of itself would make us hesitate to interfere with the exercises of such authority unless, within the plain intendment of the law, the act done or contemplated would work irreparable injury to the plaintiff. Nor do we consider that the mere allegations in the petition, sworn to though they be by the plaintiff, that the act in question would cause such injury, is ■conclusive on the subject, and deprived the judge a quo of all the dis■cretion in the matter touching the dissolution of the injunction. We think that discretion was legitimately exercised in this case.

The motion to dismiss must, therefore, prevail, and the appeal is .■dismissed with costs.

On Application fob. a Reheaeing.

Bermudez, C. J.

The injunction obtained, and which was dissolved on bond, was intended to prevent the defendant from passing any resolution, or granting any permission, to erect slaughterhouses in the parish ■of Jefferson.

Tlie question presented was, shall or not the defendant be enjoined ■from passing such resolution and granting such permission.

Prima fade, the lower Court, considering the oath, that the doing of either, or both of such acts, would cause the plaintiff an irreparable injury, granted the preliminary injunction, but, when the defendant moved to dissolve it on giving bond, the Court reviewed its previous decree, and, decreeing that the commission of the acts enjoined could not work irreparable injury, allowed the dissolution on bond.

From this dissolving order the plaintiff took a suspensive appeal, reiterating that the commission of the acts would cause an irreparable 'injury.'

We are at a loss, notwithstanding the sworn averments in the petition, to perceive how an injunction can lie to prevent a municipal organization from passing a resolution, or giving a permission ; and even were .such resolution passed or permission granted, we fail to realize how the plaintiff could be injured at all by such action. Non constat that the police jury, contrary to the fears or apprehensions of the plaintiff, will ■not refuse or abstain from passing the resolution or giving the permission. Whatever may be the action of the police jury in the premises, it can in no way affect the rights of the plaintiff, if any, when the proper time shall arrive for asserting them.

The test of the right of a court to grant the dissolving order is whether, from the allegations of the petition, taken for true, it appears -that the act, the commission of which is feared, would, if accomplished, be susceptible of causing an irreparable injury.

It is not because a petitioner swears he fears that the act will be done, that if it be not prevented and be committed, he will sustain an irreparable injury, that an injunction must be allowed. The Court is required to consider the nature of the act apprehended and sought to be enjoined, and in the exercise of a sound discretion is to determine judiciously. It must be satisfied not only of the correctness, but of the ■sufficiency, of the sworn allegation, and it' is not until satisfied of both that it should grant the remedy sought.

If the matters be contradictory, improbable, impossible, insufficient to justify the averment of irreparable injury, the Court is not concluded by the sworn averment. If a petitioner swear that he apprehends that the defendant will make a square circle, and that by the making thereof he will sustain an irreparable injury, and apply for an injunction, the ■Court, notwithstanding verification by oath of the allegation in the peti-■tition, would certainly be justified in refusing the remedy.

We have given our attention to the authorities quoted by the plaintiff’s learned counsel, and far from overruling them, expressly affirm them as correct. But they have no applicability to the case before us.

It is well settled by jurisprudence in accord with law and reason, that no appeal lies from an order dissolving an injunction on the execution of a bond by defendants, in compliance with Art. 307 C. P., where the facts of the case show, as found in the petition, that the dissolution can work no irreparable injury to plaintiff. 2 A. 321: 4 A. 147 ; 2S A. 649.

To determine whether an appeal lies from an order dissolving an injunction under Art. 307 C. P., the Court is compelled to consider whether the order is erroneous ; if it be, the appeal lies ; if it be not, the appeal will be dismissed. The discretionary power to dissolve the injunction exists only when the act prohibited is not such as may .work an irreparable injury. 14 A. 57.

The erroneous exercise of that discretion in unfettering an act not irreparably mischievous does not give to the plaintiff in injunction a right to a suspensive appeal from the dissolving order, under the express terms of Art. 566. In such a case the necessary consequence of dismissing the appeal is the reversal of the order granting the injunction e converso. 14 A. 57.

The averments of the petition disclose a clear case of prematurity of complaint.

It will be time enough for the plaintiff to apply for an injunction upon a sworn averment of proper facts, if, after the police jury will have passed the resolution, or given the permission, some party assumes to act upon that resolution and permission.

For the determination of the motion to dismiss an opinion necessarily had to be expressed, not upon the merits, for none as yet exist, but upon the sufficiency of the sworn averment to justify the injunction. If the allegations, though sworn to, do not warrant the injunction issued, it irresistibly follows that the order dissolving it on bond was properly made under art. 307 C. P., and that if it was so made, a sus-pensive appeal from it to prevent a dissolution of the injunction should not be countenanced ; otherwise it would be permitting the continuance in force of an injunction which, on the face of the papers, issued illegally, and preventing a defendant from doing acts which it may have the right of doing, and which, when consummated, can in no conceivable manner, work any injury whatever to the plaintiff, as long as no steps are attempted to carry out the resolution or permission.

“We think that the danger apprehended is too remote and too contingent to form the basis of a proceeding in court to avert it. Courts of justice have enough to do in dealing with real, existing and present wrongs, without anticipating and combating hypothetical evils of the future that may or may not arise. There are too many contingencies at present between them and danger to justify them in resorting to law.” 29 A. 272. ,

We consider with the plaintiff’s learned counsel that our ruling on the motion to dismiss virtually, unavoidably disposes of the case, which practically stands before us in the same attitude as it would occupy on an exception to the action. It is better that the litigation should end here than be unnecessarily prosecuted any further. 14 A. 57. We adhere to our previous opinion.

Rehearing refused.


text:
    No. 8000.
    Alden McLellan vs. Mrs. Sarah B. Dane.
    There is no law in this State which forbids the husband to bind himself for debts contracted by his wife.
    Evidence is not admissible to show that the money borrowed by a married woman, under the proper judicial authority, was received and used by the husband in his own affairs.
    i PPEAL from the Third District Court, parish of Orleans. Monroe, J.
    Breaux & Hall for Plaintiff and Appellee.
    First — When admissible to contradict her judicial admissions and notarial allegations, the simple oral denial by a married woman of their truth is not sufficient to destroy these admissions and allegations. 25 An. 597
    Second — Money resulting from a wife’s mortgage of her paraphernal property may be given by her to her husband without invalidating that mortgage, because: 1st. He can lawfully administer it. O. C. O. 2361-2 ; 2375-6 ; 18 La. 431 ; 6 R. 41; 14 An. 281; 4 N. S. 404 ; 16 An. 145 ; 18 An. 106, 588 ; 31 An. 736; and 2d. The only effect of such disposition, as provided by the Code, is to give her a legal' mortgage on his property for its reimbursement. R. C. C. 2390,, • (2367); 26 An. 325.
    Third — A married woman who gives a mortgage based upon the judge’s certificate, as prescribed in the acts of 1855, R. C. C. 126 et seep, is placed on the same footing as a femme sole, and cannot contradict the averments and recitals of that act by parol, except on allegation of fraud. Vide 22 An. 90 ; 26 An. 263, 401, 418, 737 ; 28 An. 233, 494 ; 29 An. 125, 333 ; 30 An. 292, 779, 940 ; 31 An. 734 ; Henry vs. Gauth-reaux, 32 An.
    Fourth — The certificate of the judge need not describe the property to be mortgaged, nor recite the wife’s purpose. Henry vs. Gauthreaux, 32 An.
    Fifth — A wife may bind herself conjointly with her husband, provided it be not for Ids debt. R. C.-C. 2398, (2412).
    Sixth — Force, fraud or threats used to induce the wife’s obligation are without effect as to tnird persons in good faith and not party to them. 26 An. 419 ; 28 An. 496, 232, 418 ; 30 An. p. 293 ; 31 An. 834 ; Henry vs. Gauthreaux, 32 An.
    Seventh — A married woman is estopped and bound by her frauds. 29 ■ An. 335 ; 2 An. 1; 6 An. 56 ; 10 An. 433 ; 6 H. 228 ; Vide 30 An. 789 ; Henry vs. Gauthreaux, 32 An.
    Eighth — The husband may be surety for his wife’s debt. 29 An. 753.
    Ninth — Husband and wife may bind themselves in solido with each other. 2 N. S. 39; 5 N. S. 431; 7ES. 251; 4 Rob. 510 ; 17 An. 233 ; 30 An. 811; Journal du Palais, 7 Sept., 1814, Monin vs. Bonnot.
    Tenth — In an obligation in solido there are as many distinct obligations as there are debtors. Duranton, vol. 2, sec. 216.
    Eleventh — As between debtors in solido the law divides the debt into equal parts. Journal du Palais, verbo Oblig. Solid., p. 768, No. 119.
    Joseph P. Hornor and Francis W. Baker for Defendant and Appellant.
    First — The certificate of a judge to a married woman, to authorize her to borrow money or contract a debt, and to mortgage her separate property to secure it, should specify the purpose for which the money is to be borrowed or the debt contracted, and indicate the property to be mortgaged.
    Second — -If the note or act of mortgage shows that the money was borrowed, or the debt contracted for a different purpose than that authorized by the judge’s certificate, the authorization has no effect.
    Third — When money has been borrowed, or a debt contracted for a different purpose than that authorized by the certificate, as appears by the note and act of mortgage, the creditor must prove aliunde that the same inured to her sole and separate benefit, or to that of her separate property.
    Fourth — The act of 1855, (articles 126,127,128, of the Civil Code), were made for the protection of married women, and when the authorization was in form of law, and the money borrowed or the debt contracted, and the mortgage was in conformity, to the authorisation, it had the effect only of shifting the burden of proof from the creditor to the married woman attacking.
    Fifth — A married woman cannot bind herself nor her separate property for her husband, nor conjointly with Mm, for debts contracted during marriage.
   'The opinion of the Court was delivered by

Poché, J.

Defendant has enjoined the sale of her separate property seized under executory process by plaintiff as holder of her note secured by mortgage on the property seized. She alleges that the note and mortgage were obtained from her by unlawful means, under the influence of her husband, who received the money, which was the consideration of the note and mortgage, and that the latter were, therefore, without consideration as to herself ; and she further alleges that- plaintiff is not the owner of the note for valuable consideration before maturity, and is liable to all the defenses which could be urged against the original mortgage.

In his answer to the petition for injunction, plaintiff changed his proceedings from the via exeoutiva into the via ordinaria; and defendant has taken the present appeal from the judgment of the lower court dissolving her injunction and recognizing plaintiff’s mortgage rights.

The record shows that plaintiff did acquire the note for valuable consideration, and before maturity, and that he has no knowledge of the original transactions beyond that which is imparted by the note and the act of mortgage.

It further appears that the wife had been authorized to mortgage her separate property in order to secure the loan which she made,' by the certificate of a competent judge, issued after examination, as required by the law of 1855, now articles 127 and 128 of the Oivil Cede.

But it also appears that the note was subscribed by herself and her husband conjointly, and in solido, and from this defendant argues that the act of mortgage was not made to conform with the judge’s authorization, and therefore stands, to all intents and purposes, as though made without such authorization.

While the law is peremptory in its prohibition to the wife to bind herself conjointly with her husband for debts contracted by him, we know of no authority, and have been referred to none, which prohibits the husband from binding himself for debts contracted by his wife.

In this case the act is expressly made under the authorization of the judge, for an amount equivalent, less interest and discount, to the loan authorized by Mm ; the check, representing the money borrowed, was made in favor of the wife, who endorsed the same, and received the money which it called for ; and to require more from the lender in such cases would be to defeat the very object of the law, which authorizes married women to borrow money and to mortgage their separate property therefor.

Defendant introduced parol testimony to show that the funds thus-borrowed were subsequently received by her husband, and by him used for his own purposes, and in his own business; and the evidence was admitted over plaintiff’s objections, who reserved his bill of exception. The Court erred, and should have rejected the proffered evidence.

Our jurisprudence is firmly settled on this question, and it is unnecessary to quote .authorities in support of the position, that, in the absence of any allegation of fraud against the creditor himself, married women are bound, as all other persons, by their contracts and mortgages executed under proper authorization, as required by the law of' 1855 (C. C. 127, 128), and cannot be allowed by parol testimony to attempt to disprove the certificate of the judge and their own authentic declarations in acts of mortgages. Nor will the law authorize the inquiry into the subsequent disposition made of the funds borrowed by married women, when properly authorized thereto. The law does not, and cannot, confer upon the lender in such circumstances the power and authority to watch over and control the acts of the married woman who has borrowed money from him, so as to prevent the improper use of the same.

Defendant must be held in the manner that she legally bound herself.

We see no error in the judgment appealed from, and it is, therefore affirmed with costs.

Justice Fenner, having been of counsel, recuses himself in this case.