author: Nicholas, C. J.

text:
    No. 12,603.
    State vs. Archie Ashworth.
    Where a deceased person, at the time of his being, wounded, states to a witness- . that be could not live much longer and that he was bound to die, his declarations made under such circumstances are admissible in favor of an accused as a dying declaration. ■ ' ■ '
    ■ There is no rule of practice or of law requiring that a dying declaration should be made all at one time, without interruption or turning aside to other matters.
    A failure on the part of the witness to whom the statement was made to have heard, or to have remembered all the conversation which may have taken place at the time between the deceased and other parties, does not do away with the fact that the witness heard everything and remembered everything that was said to him or in reference to that particular subject when he was present. *
    Rules of evidence relative to the admissibility of dying declarations are not to be as rigorously applied when the fact itself of their having been made has been satisfactorily established, and they are in favor of the accused as when they are sought to be urged against him.
    The fact that the declaration was elicited by questions asked the deceased by the witness, instead of being a volunteered statement, does not render it inadmissible.
    A PPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Bead, J,

      M. J. Cunningham, Attorney General, and A. R, Mitchell, District Attorney (P. A. Simmons, Jo-., oí Counsel), for Plaintiff, Appellee.

      R. L. Belden for Defendant, Appellant.
    Submitted on briefs, December 18, 1897.
    Opinion handed down January 10, 1898.
   The opinion of the court was delivered by

Nicholas, C. J.

The accused in this case was indicted in the parish of Calcasieu; was found guilty without capital punishment and sentenced to life imprisonment.

The bill of exceptions on which he relies for reversal is to the effect: . ,

“ That on the trial of the cause the accused called to the witness stand one Leonard Doyle for the purpose of proving the dying declarations of Andrew Ashworth, the person the indictment charges the accused of killing on June 29, 1897. '
“ That the object of proving the dying.declaration of the deceased Ashworth was to show that one or two declarations made by the deceased were entirely in favor of the accused and would have had great weight with the jury before whom the accused was tried. That on the trial the evidence was taken in writing by the clerk of court, and after various questions propounded by counsel of defendant and cross-examination by.the State — the trial, judge, upon objection made to the competency of the witness to testify, sustained the objection. That the testimony which was taken as stated was annexed to the bill as part thereof 'and for reference. The District Judge signed the bill without comment. ■

The clerk’s note of the examination of the witness Doyle shows the following questions and answers, and also the objections as made by counsel and the action qf the court thereon.

“ Q. State if you were present in the woods on the 29th of June when you had a conversation with deceased Andrew Ashworth?
“ A. Yes, I was there.
Q. Did you hear Andrew Ashworth make any statement in reference to Archie Ashworth shooting him?
“ A. I did.
“ Q. Did Andrew Ashworth express to you anything in reference to his dying?
“ A. Yes, sir.
“ Q. State what it was.
“ A. He said he was bound to die, he could not live much longer.
££ Q,. Do you remember all the conversation; all that was said and all that was asked him?
££ A. No, sir.
“ Q. Do you remember the substance of all that he said?
“ A. I remember all he said when I asked him.
££ Q. Did you remain with him until he was removed on this cot?
' “ A. Yes, sir.
“ Q,. What time of day was it when they removed hipa?
££ A. I do not know, sir; some time in the evening.
Q. What time of the day was it when you arrived where old man Ashford was?
££ A. I do not know;’it was in the morning.
££ Q,. Who was present at the time you were having this conversation with him?
A. John Ashworth, Marion Perkins, Roy Roberts, Hollis Buxton and Eb. Buxton. ■
“ Q. Do you remember all the conversation that took place between yourself and Andrew Ashworth from the time you got there until they put him on the cot?
££ A. I do.
££ Q,. Can you state that conversation?
A. Yes, sir, I can.”

Cross-Examined by the State.

“ Q,. You say you can remember all that he said with reference to his condition? State that in his exact words?
A. He said he was bound to die — he could not live long.
£c Q. You say that you remember all that he said in answer to your questions?
“A. Yes, sir.
“ Q. Is it not a fact that others were there asking him questions at the same time?
££ A. No, sir; if there was I did not hear it.
“ Q. No one spoke to him at that time about this matter but you?
!iA. Not that I heard.
“Q. Did you not, in answer to a question a few minutes ago from , he court, state that what you had heard of Ashworth’s statement at that time was partly in answer to questions you asked him and partly in answer to questions others asked him?
“A. I said he answered questions I asked him. I did.
“ Q. Did you not state, in answer to a question asked you by Mr. Belden, that you could only state what he said in answer to questions asked him by yourself?
“A. I did.
“ Q. Is it not a fact that others came up there while you were still there and had been there?
“A. Yes.
“ Q. Is it,not a fact that there was a sort of general conversation going on there with him when this new crowd came up, and continued after they did come up?
“A. Yes, sir.

(By the State.)

The testimony of this witness is objected to by the State for the reasons:

1. That the testimony of the witness does not show that he appreciated that he, the deceased, was in a dying condition and was dying at that time; that he did not have at that time such a conviction of immediate and impending death in his mind as would place the statement in the category of privileged testimony as a dying declaration.

2. That the testimony of the witness shows that the statement was made in answer to questions asked by himself and others at the time. That it was not a continuous and uninterrupted statement; that the witness does not remember all, or the substance of all, that was said at this time in connection with this matter, and that witness can not state all that was said between deceased and other parties other than witness himself, though others participated in the statement.

Objection as to the admissibility of the evidence sustained.

Counsel for defendant excepts to the ruling of the court.

Redirect.

“ Q. Did you have any conversation with Ashworth or did he tell you at that time you were in the woods with deceased, Ashworth — did he tell you, or did you hear him say that he went too far with Archie Ashworth, and that he was to blame with his own death?”

Objected to on the ground that the witness had shown himself as not qualified to testify to the whole of the statement made at that time — that he can not be permitted to testify to a part without giving the whole statement.

2. That it is an attempt to have the witness testify indirectly to that which the court has ruled the witness could not testify to directly.

8. That the witness has not been qualified before this question was asked to testify to this conversation.

Objection Sustained.

1. Because if it refers to the testimony previously given by the witness the objection is well taken; if not, it is mere hearsay testimony so far as the court is informed. Oounsel for defendant excepts to the ruling of the court.

Ordinarily dying declarations are introduced in evidence on behalf of the prosecution — -in the ease at bar they were unsuccessfully offered to support the defence. Greenleaf, Sec. 159, cites Rex vs. Scaife, 1 Mood & R. 551; Sec. 2, Lewin’s Cr. Cas. 150, as sustaining the proposition that the right to offer them in evidence is not restricted to the side of the prosecutor, but that they are equally admissible in favor of the party charged with the death.

With respect to the declarations themselves he says that it is essential to their admissibility and a preliminary fact to be proved by the party offering them in evidence that they were made under a sense of impending death, but that it is not necessary that they should be stated at the time to be so made. That it was sufficient if it satisfactorily appears in any mode that they were made under that sanction, whether it be directly proved by the express language of the declarant or be inferred from his evident danger or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances, all of which are resorted to in order to ascertain the state of the declarant’s mind. That it is the impres-. sion of almost immediate death, and not the rapid succession of death in point of fact that renders the testimony admissible. That a belief that he will not recover is not in itself sufficient, unless there be also a prospect of “ almost immediate dissolution.” That the declarations are admissible only to those things to which the declarant ivould have been competent-to testify if sworn in the cause. That they must therefore in general speak to facts only, and not to mere matters of opinion, and must be confined to what is relevant to the issue. That it is no objection to their admissibility that they were made in answer to leading questions, or obtained by pressing and earnest solicitation, but that whatever the statement might be. it must be complete in itself, for if the declarations appear to have been intended by the dying man to be connected with and qualified by other statements which he is prevented from any cause from making they would not be received (Secs. 158 and 159).

In Sec. 161 the same writer states (citing authority for the statement) that it has been held that the substance of the declarations may be given in evidence if the witness is not able to state the precise language used, and he repeats that it was no objection to their admissibility that they were so obtained in answer to questions, and if it appears that the declarations were intended by the dying person to be connected with and qualified by other statements material to the completeness of the narrative, and that this was prevented by interruption or death, so that the narrative was left incomplete and partial, the evidence is inadmissible.

In State vs. Patterson, 45 Vermont, 308, it is declared that by “ complete in itself ” is meant that the declarant’s'statement of any given fact shall be all he intended to say as to that fact, and in (McLean vs. State, 16 Ala. 672) it was held that where the deceased being asked “ who shot him,” replied: “the prisoner,” the declaration is complete and can not be rejected because from weakness and exhaustion he was unable to answer another question propounded to him immediately afterward.

Rice, in his work on Evidence, Vol. 3, Sec. 338, refers to Rex vs. Scaife, and to the comments of the Kentucky Court of Appeals upon the same as follows:

“ In the case of Rex vs. Scaife, 1 Mood & R. 551, the declaration was: I don’t think he would have struck me if I had not provoked him.’ ” Coleridge, J., hesitated, but finally admitted the declaration upon the ground that it might have an influence on the amount of punishment. There was no discussion at all as to whether or not the declaration involved a conclusion. It will be observed that the declaration did not involve the one and vital question in the case, and that it was in favor of and not against the prisoner. The prisoner was not endangered by the want of an opportunity to cross-examine the dying witness because the declaration was in his favor.”
“In speaking of this declaration the Kentucky Court of Appeals, in the case of Haney vs. Com. (Ky.), 5 Crim. L. Mag. 47, said that it was the expression of an opinion, but was admissible because in favor of the accused. The Ohio court (Wroe vs. State, 20 Ohio St. 460) cites it as being the statement of a fact. It was held in the Kentucky case above, as stated in the syllabus, that “ the general rule that declarations of the deceased are only admissible when they relate to facts and not to mere matters of opinion, is subject to the exception that declarations of the mere opinion of deceased are admissible when they are favorable to the accused, and explain the conduct or motives of the deceased.”

In speaking of such declarations in favor of the accused, the court said, among other things: “The admission of such declarations can do no harm. Frauds can not be practised under cover of the rule. And there is not so much danger of misconception or perjury as where the declarant speaks from hostile feelings, surrounded by sympathizing friends ready to construe his words as favorable to their own views as may reasonably be done.”

Rice refers in very warm, approving terms in connection with this subject to the dissenting opinion of Mr. Justice Zollars, of the Indiana Supreme Court, in Boyle vs. State, 105 Ind. 469.

In Mattox vs. United States (13 Supreme Court Reporter, 50), Mr. Chief Justice Miller, speaking for the Supreme Court of the United States, said: “Dying declarations are admissible on a trial for murder, as to the fact of the homicide and the person by whom it was committted, in favor of the defendant as well as against him (1 East P. C. 353; Rex vs. Scaife, 1 Moody and R. 551; U. S. vs. Taylor, 4 Cranch, 338; Moore vs. State, 12 Ala. 764; Commonwealth vs. Mathews, 89 Kentucky, 287; 12 S. W. Rep. 333). But it must be shown by the party offering them in evidence that they were made under a sense of impending death. * * * In Reg. vs. Perkins, 9 Car. and P. 395, the deceased received a severe wound from a gun loaded with shot, of which wound he died at 5 o’clock the next morning. On the evening of the day on which-he was wounded he was told by a surgeon that he could not recover — made no reply blit appeared dejected. It was. held by all the judges of England that a declaration made by him at that time was receivable on the trial of a person for killing him as being a declaration in articulo mortis. There the declaration was against the accused, and obviously no more vigorous rule should be applied when it is in his favor.”

In People vs. Knapp, 26 Mich. 117, the Supreme Court, referring to dying declarations, said: “It was held in Scaife’s case (Moody and R. 551), that the prisoner had the same right with the people to show them. This rule would be very unjust without this application.”

In Com. vs. Mathews, 89 Ky. 287 (12 S. W. Rep. 334), it was proved that the deceased about fifteen minutes after he was shot, when lying upon the ground bleeding and suffering, said that he hoped he would live long enough to take the gun home, and that he died in about twenty minutes. The witness said that deceased did not say whether he believed he would die or not, and he (witness) did not know whether he was conscious or not when he made the statement. The statement in substance was that he and the accused were playing, and that it was an accident. The court said: “To be competent as a dying declaration the statement must not only relate to the immediate circumstances of the transaction resulting in the injury, but it must detail facts and not the opinion of the declarant. In our opinion the statement in this instance conforms to this rule. It is unlike the case where the injured party declared he had been killed for nothing. This was purely his opinion and inference. Here the injured man said that he and the accused were engaged in play, and that the shooting was an accident. This, in our opinion, was the statement of a fact more than the giving of an opinion and the court properly permitted it to be proven.”

In Adams vs. The People, 47 Ill. 376, the accused endeavored to obtain a new trial on the ground of newly discovered evidence to prove among other matters, as we understand, certain dying declarations of the deceased. Of these the court said: “ The dying declaration of the deceased that he did not wish the accused hurt for what he had done, and that accused had done nearly right, affords no evidence of anything more than a truly Christian spirit on the part of one who had been unjustly done to death and who in his dying agonies was willing to forgive the malefactor. The further statement that he knocked down the accused three times before the accused touched him was substantially before the jury on the trial.” The court said “ the testimony, we think, fully sustained the finding of the jury, and it could not have been different had all the evidence alleged to be newly discovered been before them.”

In Moeck vs. The People, 100 Ill. 244, the court said: “ It is urged that the court erred in excluding the declarations of deceased made shortly before his death, in substance, that he struck accused, and he was not to blame. They were made so long after the occurrence as to preclude all claims that they were a part of the res gestas. They were, therefore, mere hearsay evidence and were not admissible, tinder the decision in Adams vs. The People, 47 Ill. 376, they were not admissible in evidence. * * It is true that this was newly discovered evidence, but was said not to be evidence for the jury.”

We have carefully considered the question submitted to us in this case. We are of the opinion that the grounds upon which the court excluded the dying declarations sought to be introduced in evidence were not tenable. The witness states that the deceased said that he was bound to die, that he could not live much longer, and the indictment in this ease and .verdict of the jury show that that opinion was well founded. The statements made by him were made at the time of his being wounded and evidently with a full sense of his dangerous condition. We know of no rule of practice or of law requiring that dying declarations should be made “all at one time without interruption or turning aside to other matters.” We do not see anything in the evidence of the witness that would go to take away from the declarations the character of a complete statement to the extent that the deceased desired to make it. Unquestionably general conversation took place while witness was present with the deceased, but nothing goes to show that it had any reference to or bearing upon the facts of the case. Witness says that if any conversation of that kind went on while he was present he did not hear it; that he did, however, hear all that the deceased said to him (witness) on the subject. A failure on the part of the witness to have heard or to have remembered all the conversation which may have taken place at the time between the deceased and other parties does not in our opinion do away with the fact that he heard everything and remembered everything that was said to him or in reference to that particular subject when he was present. As the correctness of the exclusion of the declarations does not rest upon the correctness of the particular reasons assigned by the District Oourt for its action we have considered the matter dehors those particular reasons. We were at first much impressed with the idea'that the declaration was made inadmissible as being the mere expression of a conclusion or an opinion of the deceased, but have become satisfied that the rules relative to the admissibility of such declarations are not to be as rigorously applied when the fact itself of their having been made has been satisfactorily established, and they áre in favor of the accused, as when they are sought to be urged against him. In the case at bar the witness named a number of persons as being present when the declarations sought to be proved were declared by him to have been made, and the danger of a falsification of facts was greatly lessened from what it would have been without such a statement. We do not think that the fact that the declaration was elicited by questions asked the deceased by the witness instead of being a volunteered statement render them inadmissible.

We were disposed to think that counsel in not stating fully in his bill of exceptions what he expected to show by said declarations, or what he had reason to believe they would be, had not placed before us sufficient facts on which to base a conclusion that declarations favorable to the accused of sufficient weight to have in all likelihood affected the result had really been made, but the testimony was cut off at the threshold of the attempt which was made to ascertain what had been said, and the question which was asked suggested with some certainty, at least, from its character, the answer which it was believed would be given to it. Lanier vs. Gallatas, 13 An. 175.

We are of the opinion that the witness should have been permitted to answer the question which was asked of him, ánd that a refusal to permit the same to be answered was prejudicial to the accused.

For the reasons assigned, the verdict of the jury and the judgment thereon rendered is hereby set aside, annulled, avoided and reversed, and the cause is remanded to the lower court for further proceedings, according to law, the accused to be held in custody subject to further orders of the District Oourt.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,695.
    J. F. White et als. vs. W. L. White, Administrator.
    An action by heirs for the recovery from the succession of their father the amount of their interests in the succession of their predeceased mother is not a personal action prescriptible by ten years, but one for an entire succession, which is prescriptible by thirty years.
    Contracts made during the late war in one of the Confederate States, payable in Confederate money, will be enforced in the Supreme Court, when the value of same, as compared with lawful money of the United States at the time aud place of contract is ascertained by proof.
    An executory contract, made in 1862 in Louisiana, for the future delivery of cotton to the Confederate States government, for and in consideration of Confederate States bonds, to be furnished thereafter, does not evidence a complete sale; only a promise of sale which entitled the promissee to sue for a specific performance, or damages for the non-fulfilment of the contract.
    APPEAL from the Third Judicial District Court for the Parish of Claiborne. Barksdale, J.

      MeOlendon & Seals for Plaintiffs, Appellees.

      J. W. Holbert and J. E. Moore for Defendant and Appellant.
    Argued and submitted January 12, 1898.
    Opinion handed down January 24, 1898.
   The opinion of the court was delivered by

Watkins, J.

Alleging themselves to be three of the five children of the marriage of William White and Sophie White, and that the latter died in 1864, and the former in 1895, the petitioners seek to recover a judgment against the succession of their father for the value of three-fifths of their mother’s one-half of the community property as it existed at her death and the consequent dissolution of the matrimonial community — their father having lost his right of usufruct in July, 1865, when he married his second wife.

They aver that there was at the time of their mother’s death personal property and effects of various kind on hand, and which subsequently remained in their father’s possession, of the value of thirteen thousand seven hundred and seventy-one dollars — an itemized list and valuation of which is annexed to their petition — and for one-half of which sum they pray judgment “for the use and benefit of the heirs,” etc., alleging that same had been by their father appropriated to and used in the community with his second wife.

They further aver that W. L. White, as administrator of the succession of William White, their father, is administering the estate of the second community; and that the áforesaid indebtedness is that of the said second community to the first community, and that they are entitled to have same paid from the assets of the second com - munity by preference over any other debts thereof — praying for judgment accordingly.

The answer of the administrator is a general denial,'coupled with a special denial, to the effect that William White, deceased, owned the property described in plaintiff’s petition, or that, if he was not the owner thereof, that he had used the same for the benefit of the second community. In an amended answer defendant shows that William White paid plaintiffs and other heirs in full the amounts coming to them from their mother’s community interest, and for which sums he took their respective receipts — that is to say, from J. F. White a receipt for the sums of seven hundred and thirty-nine dollars and five hundred and twenty-four dollars; from Z. T. White a like receipt for six hundred and sixty-six dollars and two hundred and ninety-five dollars, and from Philan White a like receipt for six hundred and sixty-six dollars and four hundred and seven dollars.

He further represents that those amounts exceed the respective virile shares of the plaintiffs in their mother’s succession, or one-half interest in said first community; and that, in addition thereto, two of the plaintiffs are indebted to the succession of their father the amounts of some small notes, which are annexed to and made parts of his answer.

Plaintiffs filed a supplemental petition and alleged that their father acquired, during the existence of the first community, a tract of land upon which he erected buildings and improvements and cleared and laid off a farm; and that he subsequently used, occupied and cultivated same, during the period of his life, for the benefit of the second community, for which same is indebted in the way of rent at the rate of one-half of two hundred and fifty dollars per annum — that is to say, to the amount of seventy-five dollars per annum for their shares of three-fifths of one-half thereof.

They also claim five per cent, per annum interest on each annual Instalment of said rent, from the date of their father’s second marriage in 1865.

To this amended petition the answer of the defendant is a general denial, coupled with the averment that “ the plaintiffs have been more than paid for their shares in their mother’s succession, and that they had no interest in the land for the use of which they make claim,” etc.

At this stage of the proceedings the defendant filed a plea of no cause of action, as a peremptory exception founded on the law; but there appears to have been no formal disposition made of same, as the court proceeded with the trial and rendered a judgment in favor of the plaintiffs — thereby affirming that there was a cause of action.

The defendant also filed a plea of prescription of three years against the plaintiff’s demand for rents.

The trial resulted in a judgment in favor of each one of the three plaintiffs and against the administrator of the succession of William White, for their respective interests in the estate of their mother; that is to say, for the sum of seven hundred and one dollars each— that is, two thousand one hundred and. three dollars in all, with legal interest from the first of September, 1865.

And in a judgment for the further sum of three hundred and sixty-seven dollars and fifty cents on the plaintiff’s claim for rent, with legal interest from January 4, 1897.

It further ordered that the plaintiffs be charged with sundry amounts which are particularly specified, and that same be awarded to the defendants on their reconventional demand.

From that judgment the administrator has appealed.

In this court counsel for plaintiffs and appellees filed an answer to the appeal and prayed for an amendment of the judgment in their favor, so as to award them the fnil amount claimed; and they also filed contemporaneously a plea of five and ten years prescription against the defendants’ reconventional demand.

And in this court also appears the counsel for the administrator, who filed a plea of prescription of ten and thirty years in bar of plaintiffs’ demands.

As neither party has requested that the cause be remanded for the purpose of rebutting the aforesaid pleas which were filed in this court, it is fair to assume that they rest their respective contentions upon the face of the record before us.

In the first place, we think it appears clearly from the language of the judgment, that all the plaintiff’s demand for rent was barred, with the exception of the amount due for the last three years; and in thus decreeing we think the lower judge was right.

We are of opinion that the plaintiffs’ plea of five and ten years’ prescription against the defendant’s reconventional demand is not good, because his claim is, that the sum specified evidenced payments made to them in the course of a settlement between them and their father; of their interests in their mother’s succession. The claim is urged as an offset against the plaintiffs’ demand; and not as a reconventional demand, properly speaking, for which he claims judgment.

The petition in this suit was filed on the 28bh of May, 1896, and it is therefore evident, that the plea of prescription of thirty years bars the action inasmuch as plaintiffs’ right of action arose in July, 1865, the date of the second marriage of the deceased father, provided they were of full age at the time. But of their majority the proof does not satisfy us. It is at least doubtful as to one, and clearly shows the majority of the other two.

This is admitted by defendants’ counsel, at least inferentially.

To sustain a plea of prescription the proof must be clear. The plea of ten years is directed against this suit as a purely personal action. R. C. C. 3544.

This is not a suit against an usufructuary for an accounting; bul one for the recovery of an entire succession, and is only barred by the lapse of thirty years. R. C. C. 3548.

The proof administered at the trial fairly supports the judgment rendered. It satisfies us that the properties were fairly estimated in the opinion of the district judge; and that same were on hand in kind, at the date of the second marriage of plaintiff’s father, and were subsequently disposed of by him. Necessarily he incurred an obligation to reimburse the heirs of his deceased wife the value thereof, less the amount he paid them on account.

An agreement to sell cotton to the Confederate government during the existence of the late war, to be paid for in bonds of the Confederate States, and unaccompanied with delivery of possession, did not operate a divestiture of title. Boyd vs. Chaffe, 21 An. 476; Schmidt vs. Barker, 17 An. 262; Howard vs. Kirwin, 19 An. 432; Huck vs. Haller, 19 An. 257; Levy vs. Baer, 19 An. 469; Biossat vs. Sullivan, 21 An. 565.

In this last case, the court expressed the following view, viz.:

“ If full effect be given to the testimony of the witnesses for defendant, and the evidence of the plaintiff be disregarded, it wouid only prove an agreement to sell an executory contract, and the consideration was Confederate treasury notes. It is well settled that this court will not aid parties to enforce a contract which had Confederate money for a consideration.”

In the United States Supreme Court, a different rule of interpreting contracts predicated on Confederate treasury notes has obtained, the purport of which is, that contracts made during the war in one of the Confederate States, payable in Confederate money, will be enforced in the Federal Courts, when the value of such Confederate notes as compared with lawful money of the United States, at the time and place of the contract, is ascertained by proof. Railroad Company vs. King, 91 U. S. 3; Stewart vs. Solomon, 9 U. S. 434; Cook vs. Lillo, 103 U. S. 792; Rives vs. Duke, 105 U. S. 132; Effinger vs. Kenney, 115 U. S. 566.

The theory upon which these decisions proceed is that Confederate treasury notes constituted a currency which was imposed upon a community by irresistible force; and that same must be considered in courts of law as though it had been issued by a foreign government temporarily occupying a part of the territory of the United States. Thorneyton vs. Smith, 8 Wallace, 1.

But in this case no such proof was administered. If it had been it would not have been availing to the defendant for the reason that the price which the witnesses testify they contracted to pay William White for the cotton in .1862 was not Confederate treasury notes, but Confederate bonds — an altogether different thing.

They were not at the time in esse. They were to have been delivered to White at a future date, and he retained possession of the cotton and sold it in 1865 after the close of the war.

At most the engagement evidenced an executory contract or agreement for the future delivery of cotton to the Confederate government — a mere promise of sale which did not convey a title.

Such a transaction does not constitute a complete sale; only a promise of sale which entitled the promisee to sue either for a specific performance or the recovery of damages. Collins vs. Desmaret, 45 An. 108: Satterfield vs. Keller, 14 An. 615; Garret vs. Crooks, 15 An. 483; Knox vs. Payne, 13 An. 361; Broadwell vs. Raines, 34 An. 677; Thompson vs. Sheriff, 40 An. 712.

The alleged sale of the cotton by White to the Confederate government is not sustained by either law or evidence.

Judgment affirmed.


text:
    No. 12,714.
    State ex rel. H. W. McLeod & Co. vs. W. N. Potts, Judge of the Fifth Judicial District Court, Parish of Oauchita.
    The writ of prohibition, as its name imports, is one which commands the person to whom it is directed not to do something which by the suggestion of the relator the court is informed he is about to do. If the thing is already done it is manifest that the writ can not undo it, for that would require the performance of an affirmative act; whereas the only effect of the writ of prohibition is to . suspend all action and prevent further proceeding in the prohibited direction.
    ^PPLIOATION for Writs of Certiorari and Prohibition.

      A. A. Gunby and Sholars <6 Sehreiber for Relators.
    Respondent pro se.

    Submitted on briefs January 10, 1898,
    Opinion handed down January 24, 1898.
   The opinion of the court was delivered by

Watkins, J.

Relators’ complaint is that they instituted suit in a magistrate’s court of the parish of Ouachita and obtained judgment therein for ninety dollars, and that they caused an execution to issue thereunder, and the constable of that court to seize certain personal property of the judgment debtor and to advertise the same for sale.

That one McLain filed in said magistrate’s court a petition of third opposition in which it is alleged that the judgment debtor was indebted to him in the sum of two hundred and fifty dollars — one hundred dollars of which represented rent of land, and the remainder necessary plantation supplies — and that for the security of the payment of that sum he had a first lien and privilege on the aforesaid property; and that he obtained from said magistrate an order directing and requiring the constable to retain in his hands a sufficient amount of the proceeds of same when sold to pay and satisfy said demand.

Relators represent that they filed in said court an exception to the jurisdiction thereof ratione materias, which was grounded on the averment that the demand of a third opponent being for the sum of two hundred dollars was far in excess of the constitutional limit of its authority; and that the justice of the peace sustained that exception and dismissed the aforesaid opposition.

That from that judgment of dismissal the third opponent prosecuted an appeal to the court of the respondent; and that they therein appeared by counsel an'd filed a motion to dismiss the appeal on the ground that the District Oourthad no appellate jurisdiction thereof.”

The relators further aver that the respondent overruled their motion, eDtertaiued jurisdiction of the appeal, heard and considered the cause on its merits, reversed the judgment of the justice of the peace, and remanded same to his court with instructions to proceed with the trial thereof.

They complain that the judgment of the respondent is contrary to law, and in contravention of the provisions of the constitution, defining and limiting the jurisdiction of magistrates, or justice courts; and that same is consequently absolutely null and void.

And that if, in pursuance of said decree, the justice of the peace should attempt to carry same into effect, his act would be an usurpation of authority, and his judgment an absolute nullity.

The answer of the respondent attracts our attention to the conceded fact that, at the time the relators presented their demand for relief in the premises, the judgment which they complain of as illegal and void had already been rendered by him, and signed, and the record duly transmitted to the court of first instance; and that the said judicial proceedings having terminated before the issuance of the supervisory writs from this court, and his connection therewith having ceased, the remedy sought by them can not be applied, and consequently relief must be refused.

That if this were not so, and further proceedings in said suit were contemplated by him, he had undoubted appellate jurisdiction in the premises — the appeal having been prosecuted from a final judgment of a justice of the peace.

On the merits the respondent returns, that the third opponent did not make the defendant’s in the magistrate’s court a party thereto, and prayed for no judgment against him; but that he demanded judgment recognizing his privilege as lessor and furnisher of supplies upon the property which relator had caused to be seized under their judgment.

That, as matter of fact, the debt and privilege of third opponent had been previously liquidated and established by a final judgment in his court; and that, in disregard of his rights, the relator had caused same to be seized under a fl. fa. issued out the magistrate’s court.

That the only course which was open to third opponent was the one he pursued, that of making opposition to the seizure under fi. fa. in the court issuing the writ, so that it might fix the rank of the respective privileges of the two claimants, contradictorily with each other — the first seizure of the property affected with the liens having been made under the execution from the magistrate’s court.

The record shows, and the foregoing statement from the relator’s petition admits, that the respondent had actually tried and disposed of the appeal of third opponent before relators applied for relióf by writs of prohibition and certiorari.

On this state of facts Mr. High announces the law to be as follows, viz.:

Another distinguishing feature of the writ (of prohibition) is that it is preventive rather than a corroborative remedy; and (that) it issues only to prevent the commission of a future act, and not to undo an act already performed.” High’s Extraordinary Legal Remedies, Sec. 766.

In United States vs. Hoffman, 4 Wallace, 158, the Supreme Court, speaking through Mr. Justice Miller, said:

The writ of prohibition, as its name imports, is one which commends the person, towhomitis directed, not to do something which by the suggestion of the relator the court is informed he is about to do. If the thing be already done, it is manifest the writ of prohibition can not undo it, for that would require an affirmative, act'; and the only effect of writ of prohibition is to suspend all action and to prevent any further proceedings in the prohibited direction.”

This court had occasion to express a similar opinion in State ex rel. Bassetti vs. Judge, 44 An. 1093; and in State ex rel. Davidson vs. Judge, 38 An. 178, we held that if the particular grievance complained of “no longer exists there is no longer any need of the relief sought.”

On this state of the authorities we are of the opinion that the application for relief by prohibition came too late; but that fact can not seriously affect or impair the relator’s rights. For if, indeed, the magistrate’s court was not vested with jurisdiction of the matter in dispute in his court, and the respondent decided the appeal erroneously, relators may yet contest third opponent’s debt as well as his lien and privilege, in order to protect their previous seizure.

But we are inclined to the opinion that the respondent took a proper view of the case before his court, for two reasons:

1. Because the Constitution confers on district courts “jurisdiction of appeals from justice courts in all matters when the amount in controversy shall exceed ten dollars, exclusive of interest” (Art. 112).

2. Because the Code of Practice provides that when a conflict of privilege arises amongst different creditors “ all suits and claims shall be transferred to the court by whose mandate the property on which the privilege or right of mortgage is to be exercised was first seized, and said court shall proceed to class the said privileges and right of mortgage according to their rank and dignity,” etc. (Art. 126; vide Kahn & Bigart vs. Sippili, 35 An. 1041) .

We can not perceive any reason why a justice of the peace is not just as much authorized to test and determine the rank of conflicting liens and privileges on property which is under seizure in his court as the District Court is. For that question must he determined by the terms of the law or the date of registry, and not by the validity of the debt, except for the purpose of displacing a prior lien and making way for one of inferior rank.

We are of opinion that relators have not presented a case entitling them to relief.

It is therefore ordered and decreed that the preliminary order be set aside, and that relators’ demands be rejected at their costs.


author: Miller, J.

text:
    No. 12,729.
    State of Louisiana ex rel. Jules Andrieu vs. N. H. Rightor, Judge, etc.
    'When the record o£ appeal or tlie petition oí the litigant is suffered to be filed or the cause heard, and it is then ascertained that by inadvertence the record or petition is not properly stamped, or the stamps defectively canceled, if the litigant tenders the requisite stamps properly canceled, the offer should be accepted and the suit not dismissed. 37 An. 573; 16 An. 1203; i3 An, 883; Stamp Act No. 136 of 1880.
    QN Application for Writs of Mandamus and Certiorari.

      Charles F. Claiborne for Relator.

      Dinlcelspiel & Hart for Respondent.
    Submitted on briefs January 24, 1898.
    Opinion handed down February 7, 1898.
    On Application por Writs op Certiorari and Mandamus.
   The opinion of the court was delivered by

Miller, J.

The relator seeks the writs to compel the judge of the lower court to reinstate and determine the suit brought up to the division of the Civil District Court by appeal from the City Court, and the record of which was not sufficiently stamped. The City Court gave the plaintiff the judgment claimed and afterward, on appeal, the Civil District Court reversed it and dismissed plaintiff’s suit, because of deficiency in the stamps.

While it is extremely important that the courts should exercise the necessary supervision and control in respect to the stamps required to be placed on all judicial records we do not think the litigant’s suit should be dismissed, if, from inadvertence, he fails to affix the requisite stamps on his petition or record of appeal, but offers to attach the requisite stamps when the error is discovered. It would be entirely proper for the court to refuse to hear the case and the paper or record should not be allowed to be filed at all without the requisite stamps, but if filed, or the cause is suffered to proceed to hearing, the law, in our opinion, does not authorize the judgment to be annulled and the suit dismissed, because the deficiency of stamps or the defective cancellation is then discovered and the litigant tenders the stamps required.

It is therefore ordered, adjudged and decreed that the writ of mandamus issue directing the respondent judge to reinstate and determine the relator’s suit on his affixing to the record of appeal the required stamps properly canceled.


author: Breaux, J.

text:
    No. 12,692.
    Mrs. Lena Wellman, Wife, vs. Mack Wellman, Husband.
    Charges of adultery, under the circumstances of this ease, set forth by the wife against her husband, as a ground for a judgment of divorce, do not, of them* selves, constitute a defamation.
    The charges had been abandoned by the wife, and her suit dismissed without prejudice to the husband’s reconventional demand for a separation from bed and board.
    In that condition, the defendant having failed to sustain his demand in reconven* tion by other than plaintiff’s allegations, they were not alone grounds or cause for a judgment of separation.
    Excesses, cruel treatment and outrages of the wife form a legal ground for separation, but no acts of ill treatment occurring after suit has been brought are alone and of themselves cause for a judgment of separation.
    Statements of the wife (made to a committee appointed by a secret order, of which the husband was a member, w ith the purpose of re-establishing pleasant relations between spouses) can not be taken of themselves as a manifestation on her part (notified as she was to appear and make a statement) of deliberate intention to wantonly injure her husband and publicly defame his character.
    A PPEAL from the Eirst Judicial District] Court for the Parish of ** Caddo, Land, J.

      Wise & Herndon for Plaintiff, Appellee.
    A. L. Kahn for Defendant, Appellant.
    Argued and submitted January 12, 1898.
    Opinion handed down January 24, 1898.
   The opinion of the court was delivered by

Breaux, J.

This was a suit for a divorce.

The defendant filed a plea in reconvention for a separation from bed and board. This plea was grounded on plaintiff’s allegations that he, the defendant, was guilty of adultery, and that she, the plaintiff, had made threats to kill him, the defendant. The defendant charged that the accusation of adultery was false.

On the day the case was called for trial, on motion of plaintiff’s counsel her suit was dismissed without prejudice to the reconventional demand of defendant.

Both the plaintiff and the defendant find fault with a ruling of the District Judge permitting the introduction of evidence on the reconventional demand.

The plaintiff (in the suit defendant in the reconventional demand) complained on the ground that there was no allegation on the reconventional demand of public defamation of character.

While, on the other hand, defendant’s counsel accepts the ruling as correct he complains of the reasons for overruling it as error. We take it that the basis of the objection to the ruling is that, in the view of the counsel, the reasons were not broad enough, and that if the charge preferred by plaintiff was not a public defamation it was at any rate of a character to bring it within the term “ outrages of one toward the other” under another provision of the law of separation, and that under this provision, even if it was not a public-defamation, it was admissible. In other words, as we understand, that the court, instead of holding that the answers of the witnesses were admissible because they went to prove defamation of character, should have held that the answers were admissible as evidence of personal and direct outrage committed by the wife toward the defendant husband; which rendered their living together insupportable. If there was anything erroneous in the ruling it was in admitting the testimony at all. At any rate the defendant had no cause to complain.

The'faets are, as we gather from the record, after suit had been instituted, the Damon Lodge Knights of Pythias, of which plaintiff was a member, took up the matter and appointed a committee of investigation with the view, as we conclude, to bring on a reconciliation between the parties. They were notified to have their witnesses present, and when the committee met, statements were heard from both the plaintiff and the defendant. The former stated to the committee that her husband had been guilty of adultery with women, one of whom she named.

The District Judge, in his reasons for judgment, said that there could be no investigation by this committee without hearing both, and that the husband tacitly consented that his wife should disclose to the committee her grounds of complaint against him. He also added that the answer did not charge “ malice,” which is the essence of slander or defamation, and must be proved either by direct testimony or by implication flowing clearly from the language and conduct of the defendant, citing 34 An. 1146, that the statement was justified by the occasion and was not volunteered for the purpose of bringiug her husband into public contempt. “ It was made to a secret committee of a secret society acting with the laudable purpose of bringing about reconciliation between the parties.”

Upon these grounds defendant’s reconventional demand was dismissed as in case of non-suit, and the community was condemned to pay all costs.

From the judgment the defendant husband, prosecutes this appeal.

It is settled in our judgment ordinarily in order that the offence alleged may be cause enough for separation from bed and board, it must be shown that it was committed before the plea for the separation was filed.

At all events a judgment of separation should not be granted for alleged offences committed after suit had been filed and in the absence of all evidence of cause for separation of a date anterior to the suit. If evidence be admissible of utterances post lites to prove public defamation, they are not admissible, unless it be alleged that the defamer was actuated by “ malice ” in making the charges, and that they were of a public character. That was not the reconventional demand of the defendant; it was absolutely silent as to “malice ” and only alleged that plaintiff had accused him “of being guilty of adultery.”

In so far as the record shows it was only to the special committee that the plaintiff complained of conduct on the part of the husband she deemed was in violation of his marriage vows. The committee was not at all public. In carrying out the purpose it had of restoring harmony between the two, the husband and the wife, the committee sat within closed doors and there heard the real or imaginary grievances of each of the spouses. We have no reason to conclude that •they were made public.

The defendant, moreover, in support of his demand in reconvention for separation argues that the charges made by the plaintiff in the pleadings should be considered as grounds sustaining his reconventional demand. As the only other evidence before us is the statement made by plaintiff to the committee, not to be taken account of for reasons we have already stated, it would result were we to grant the demand for a separatton that it would be grounded exclusively upon the allegations of plaintiff in her petition for a divorce in a suit she has chosen to abandon. We do not feel authorized to make such allegations the exclusive basis of a judgment of separation. They are not of themselves grounds for a separation from bed and board.

The law as we take it has in view more particularly facts alleged to have occurred prior to the suit and not mere pleadings in cases of this character without proof of any kind.

In Towne vs. Towne, 9 La. 457, this court said: ‘‘ The only question we have to examine is whether the facts alleged as having occurred before the suit was brought are sufficient to justify a separation.” There is nothing in the case.before us requiring that it be taken out of the rule having in view acts . preceding the institution of the suit as giving rise to a cause of action. In suits of the nature of the one here allegations of the petition have never, in this State, been taken as cause sufficient for judgment. If the allegations were true the plaintiff had had no cause to complain if they were made in error; it not having been shown that plaintiff acted wantonly or maliciously the error was not of itself cause to decree a separation.

Here the charge of public defamation is not sustained by the allegations of plaintiff in her petition for a divorce; it not appearing that they were prompted by insincerity and conceived in malice. Terrell vs. Boarman, 84 An. 806.

We agree with the judge of the District Court that the defendant has not shown cause for a separation from bed and board considered from any point of view. The wrongs asserted have not been shown.

Therefore it is ordered, adjudged and decreed that the judgment appealed from is affirmed.


text:
    No. 12,694.
    Mrs. M. C. Ludeling vs. J. Garrett, Sheriff, et al.
    Motion to Dismiss.
    In testing jurisdiction the title to the property -which had beeu seized (but subsequently released), and the damages claimed in the petition for injunction, presented inseparable issues, as plaintiff’s title was denied on trial of claim for damages.
    The property seized,, the title to which was an issue in the case, and the damages brought the appeal within the court’s jurisdiction.
    On the Merits.
    Only actual damages allowed against the defendant in injunction.
    The demand as to the sheriff made by one of the defendants was rejected.
    A PPEAL from the Fifth Judicial District Court for the Parish of Onachita. Potts, J.

      Chas. J. Boatner and F. Q. Hudson for Plaintiff, Appellant.

      Munholland & Munholland for Defendants, Appellees.
    Argued and submitted January 13, 1898.
    Opinion handed down January 24, 1898.
   The opinion of the Court was delivered by

Breaux, J.

This was an injunction. In her petition for a writ of injunction plaintiff complained of a seizure made of her property under a writ of fieri facias issued on a judgment rendered in a suit entitled Bonecaze Shoe Company, Limited, vs. Succession of John T. Ludeling. She alleged that no judgment was rendered against her, and that the writ of ft. fa. under which her property bad been seized was directed against the succession of John T. Ludeling and Maria 0. Ludeling, and that the writ of fieri facias was not a writ under which it was possible to seize and sell property of a succession.

She alleged that she had suffered damages in one sum of five hundred dollars, occasioned by the unlawful seizure, and in similar amounts in counsel fee for obtaining the injunction.

In September following the date of the seizure made on defendant’s, the seizing creditor’s order, the seizure was released, and afterward the creditor answered plaintiff’s petition for an injunction, pleading a general denial and averring specially that Mrs. Ludeling’s individual property had been seized.

The judgment of the District Court sustained the injunction, but rejected plaintiff’s demand for damages.

Plaintiff appealed to the Circuit Court. On appeal that court determined ex proprio motu that it was without jurisdiction of the issues involved; that in addition to damages claimed there was a question of title to the property seized which brought the amount in dispute within the jurisdiction of this court.

Plaintiff then appealed to this court.

Here the defendant appellee moved to dismiss the appeal on the ground that this court is without jurisdiction ratione materia.

The question of jurisdiction is the first before us for determination.

The Circuit Court, in the opinion dismissing the suit, said: “ After carefully reviewing the record we did not find that defendant had judicially admitted that the property seized belongs to Mrs. Ludeling, nor can the inference be drawn from the fact that the seizure was released. It was necessary that the court should decide the question of ownership first in order to perpetuate the injunction, for if Mrs. Ludeling was not the owner she had no cause of action.”

Defendant’s answer especially denies her ownership.

In our view the foregoing statement of facts is correct. With reference to the law in the nature of things plaintiff could not recover damages for the illegal seizure of property she claimed, without proof that she was the owner, as alleged.

The defendants have denied her allegation. As to the ownership of the property, her ownership vel non became an issue. Evidently, prior to a determination of that issue, she could not stand in judgment. The release of the seizure, as relates to the jurisdiction of the court, did not affect the question involved. The defendant had denied the title. The abandonment of the seizure did not have the effect of admitting that the property was owned by the plaintiff; nor did it have the effect of admitting that plaintiff was entitled to damages, notwithstanding she did not prove that the property which had been seized was hers.

As against a seizing creditor, one seeking to arrest a sale by injunction on an allegation of his ownership, is bound to make out his title by clear written evidence. Jones vs. Lake, 43 An. 1024.

In the manner the controversy is before us, title to the property seized and the damages growing out of the seizure are inseparable issues and are considered together in determining the value of interests involved, and the jurisdiction of this court.

The court declined to dismiss the appeal.

On the Merits.

It does not appear that the seizure disturbed the planting operations of the plaintiff. If it was a hindrance to the cultivation of the place, it was not shown on the trial.

We would not feel justified — in assuming that plaintiff’s credit was impaired; that her laborers were less controllable, or that the seizure was in any manner harassing. There is a complete absence of all evidence in the record in this respect. This disposes of the question of damages; if any directly grew out of the seizure of the place.

This brings us to the question of the execution, which issued under the judgment.

There can be no controversy about the writ of fieri facias as issued. It had no binding force, and gave no right to the judgment creditor to seize succession property, or the property of the plaintiff in injunction.

This the judgment creditor realized and ordered the return of the writ.

It now only remains for us to determine whether the plaintiff in injunction, whose injunction is sustained, is entitled to recover attorney’s fee as damages. We recall to mind two cases in which such a fee was sanctioned.

In White vs. Givens, 29 An. 573 a case similar upon this point,, the court said: “The seizure was unlawful, ” and allowed attorney’s fee to plaintiff in injunction, whose injunction was sustained. In Gilkerson Sloss Company vs. Yale & Bowling, 47 An. 695, also plaintiff in injunction recovered counsel’s fee.

Plaintiff, in order to prevent an unlawful sale of her property, under a writ of fieri facias which was absolutely null, was compelled to engage, counsel. The appearance of counsel in the case to assert her right as owner of the property seized is evidence of services rendered for which she is bound.

The amount expended by her for the services, or the amount she' owes, is due to her by the seizing creditor.

We must take it that an amount is due, in regard to which testimony was heard without objection in the District Court.

We do not think that the sheriff is liable in solido with the defendant Bonneeaze Shoe Company, Limited. The writ was issued in accordance with the latter’s instruction. It was issued by the proper officer, from a court of competent jurisdiction, and under a valid judgment. Crow vs. Sheriff, 45 An. 1225; Brainard vs. Head, 15 An. 490.

It is therefore ordered, adjudged and decreed that plaintiff have judgment against the Bonneeaze Shoe Company, Limited, for the sum of two hundred and fifty dollars ($250), with five per cent, interest from the date of this judgment; that the demand for these damages against the sheriff be rejected.

With this amendment, the judgment of the District Court is affirmed at appellee’s cost.


text:
    No. 12,697.
    Mrs. Genie Layton, Tutrix, vs. Mayor and City Council of Monroe, La., et als.
    Under the Act No. 105 of 1892, providing for the annexation of adjacent lands to the; area of incorporated towns or cities, the council of the city has no power to-order the election preliminary to any proposed enlargement of the city limits, unless the petition for annexation is before the council from one-third in number and value of the property owners residing within the territory proposed to-be added to the city or town.
    The owner of property within the area to be added to the town or city has the-right to enjoin the execution of the ordinance of the council directing the elec-. tion prescribed by the statute, when the ordinance is adopted without the ful-, filinent of the conditions exacted by the Act No. 105 of 1892 as requisite to authorize the ordinance and election.
    APPEAL from Fifth Judicial District Oouirt for the Parish oi+ Ouachita. Potts, J.

      Stubbs <& Russell for Plaintiff, Appellant.

      Thos. 0. Benton, City Attorney {Percy Roberts & Boatner of Counsel), for Defendants, Appellees.
    Argued and submitted January 13, 1898.
    Opinion handed down January 24, 1898.
   The opinion of the court was delivered by

Miller, J.

The plaintiff as the owner of property in the parish of Ouachita seeks to enjoin the execution of an ordinance of the ■council of Monroe proposing the extension of the corporate limits of Monroe so as to embrace the property of petitioner, and from the judgment dissolving the injunction plaintiff appeals.

The petition in substance avers that plaintiff’s children are owners of property in the parish, part in use as the plantation and part plotted, or laid off into squares; that the plantation is entirely beyond the city limits, as is a portion of the land laid off in squares, and that there are no other owners residing on the plantation besides petitioner and her children; that the plantation has well-defined limits, is separate from the property laid off into squares, lies in different sections and is not contiguous to Monroe. The petition goes on to aver the presentation of a petition to the mayor and council of Monroe for the extension of the city so as to add thereto the property of petitioner; that the petition was not signed by one-third in number and value of the owners of property sought to be annexed, tout, in point of fact, the signers did not represent one-tenth of the property, and many signatures were affixed to the petition by unauthorized persons; that on this petition the council'has ordered an ■election to determine whether the land should be annexed, to be held by the qualified electors, and has fixed the date of the election and .appointed the commissioners pretending to act under the Act No. 105 of 1892; the petitioner charges that her property not contiguous to Monroe is not within the parview of the act if constitutional, that the act makes no provision for determining whether the petition is signed by the owners in number and value required by the statute, and it is charged that the council acted on the assumption not in accordance with the fact, that the petition was properly signed; it is charged that the proposed annexation of petitioner’s property will impose burdens on the owners with no corresponding benefits; that illegal and unconstitutional taxes will be levied, and there is the averment of the resulting irreparable injury and the necessity for the injunction to restrain the holding of the election and the enforcement of the ordinance. The defendants excepted that the action of the mayor and council on the petition was final; that the ordering the election was the exercise of legislative power, not reviewable by the courts; that the Act No. 105 of 1892 is constitutional, and the courts can not obstruct, interfere with, or review the execution of the act. The case comes here on the question raised by the exceptions.

The Act No. 105 of 1892 provides that property adjacent to any city or town may be brought within the corporate limits, in compliance with the requisites carefully prescribed by the act. There is required (1) the petition of one-third of the bona fide owners in number and value of the property within the limits of the proposed addition, to the mayor and council of the city or town, the limits of which are to be extended by taking in the land described in the petition; thereupon the council is to ascertain by successive elections the sense of the voters within the proposed addition, and of the voters of the city, the area of which it is designed to be enlarged, with reference to the annexation of territory proposed, and if the vote at such election is favorable on the proposition submitted, the annexation is to be deemed accomplished.

The defendants direct attention to the principle that exempts legislative bodies from judicial control. The action of the council in this case is completed in respect to ordering the election. If that action is ultra vires the execution of the ordinance may be resisted by the citizen, or, at least, by the taxpayer whose interests are affected. 1 High on Injunctions, See. 1241; 1 Dillon Municipal Corporations, See. 1246, notes at foot. Again, it is urged the suit is premature, and reference is made in this connection to Roudanez vs. The Mayor and Administrators of the City of New Orleans, 29 An. 271; State ex rel. Behan vs. Judge, 32 An. 1276. The election now ordered by the council followed by another, and that by the proclamation of the result, is all the statute requires to complete the annexation, if the basis to authorize the action of the council exists. Act No. 105 of 1892, No. 1, Secs. 3, 7, 10. Irrespective of the question discussed in the text-books, and decisions of the right of the taxpayer after the annexation proceedings are completed to contest the taxes levied on the property brought within the city limits, we think in a case of this character of action charged to be wholly ultra vires, the taxpayer need not wait until the injury from such action is consummated, so far as respects the action of the council. 2 High on Injunction, Sec. 1241. Further, the defendants insist that ordering this election belongs to that class of mere ministerial duties no injunction can control. The power of the council, the exercise of which is dependent on a well defined condition is a ministerial duty, if the condition is fulfilled, but if not there is no power to do the act in question. Our attention is also directed to our decision, that it is not for public officials charged with simple ministerial duties to originate objections and refuse performance of such duties. State ex rel. Reynolds & Henry Construction Co. vs. Mayor and Council, 46 An. 1278; Reynolds & Henry Construction Co. vs. The Mayor and City Council of Monroe, 47 An. 1289. It seems to us that the right of the taxpayer to resist an illegal ordinance injurious to his interests is not to be tested by the principle that makes ministerial duty imperative on the public body or official.

It is the'legislative province exclusively to incorporate cities or extend their limits, and the citizen must submit, however impolitic or oppressive he may deem the legislative act, although there is an intimation in the authorities that in exceptional cases the judicial control is not even excluded by legislative action incorporating or enlarging the limits of cities. 1 High on Injunction, Sec. 547; Cooley on Taxation, p. 119; 75 111. 152; 59 Ind. 225; Laramie County vs. Albany County et al., 92 U. S. 807. The defendants insist that the ordinance of the council ordering this election is as much beyond question as would be the act of direct legislation of the General Assembly extending the limits of Monroe if special legislation were not prohibited. The legislative power over the subject, when capable of being exerted by special legislation incorporating or enlarging the area of cities or towns, is plenary. The Legislature has not undertaken to convey this power to city councils, if, indeed, any such transfer of a legislative function were possible. This act of 1892 confers on the councils of cities or towns the limited function of ascertaining by successive elections the sense of the qualified electors in reference to any proposed enlargement of the city or limits, and, when that sense is ascertained, the council is to announce the result. Before these functions of the council are called into exercise there must be the petition for the proposed annexation by one-third in number and value of the property owners within the area to be added to the city or town. The petition in this case contains the distinct averment that no such petition was filed, and under this form of controversy that averment is to be taken as true. If the contention of defendant is maintained practically, the council can order the election on any kind of petition, or, indeed, without any petition. Yet to order the election without that petition the statute prescribes, is simply a usurpation of power. It is claimed the council is made the sole judge of the sufficiency of the petition. There is no room for the judgment of the council as to the requisites of the petition, defined as they are with precision by the statute. The argument for the defendant in its effect converts a limited function of the council into an unqualified and unlimited power to order elections for the annexation of territory to incorporated towns, and strips the taxpayer of all right to relief when the council transcends its power. The limitation that no annexation shall take place, and no election by the qualified electors shall be ordered, unless the property holders, one-third in number residing in the district to be added and representing that portion of value, shall first petition for such annexation, is placed in this act of 1892 for the protection of the property owners. In our view, the council in exercising the delegated power under this act of 1892, must observe the condition accompanying that power, and that the taxpayer, in whose interest as well as for the public good the condition is imposed, has the right of appeal to the courts against the action oE the council injurious to his rights, and violative of the legislative act, source and measure of the power of the council. See 1 High on Injunction, Sec. 541, citing 58 Ind. 480; 55 Ind. 576.

We omit expressing any opinion on the questions arising on the merits as the contiguity of the property to be added, or on other questions raised by the exception and discussed in argument. We decide that the plaintiff has the right to be heard on the allegations in his petition.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, the exceptions be and they are hereby overruled and that the case proceed to trial on the merits, and that defendants pay costs.


text:
    No. 12,731.
    State ex rel. H. & C. Newman vs. Judges Blackman and Mouton of the Court of Appeals, Third Circuit, Parish of St. Landry.

      On application por Writ op Mandamus.
    The action was revocatory. When plaintiff’s claim does not exceed two thousand dollars, and the valueof the property involved in the contract sought to be annulled is greater than that amount, inasmuch as in such action the judgment can only affect the complaining creditor and the debtor to the amount of the former’s claim, the appellate jurisdiction is tested by reference to the amount of plaintiff’s claim.
    But when plaintiff’s claim exceeds two thousand dollars, and the value of the property, the sale of which is sought to be annulled as fraudulent, is less than two thousand dollars, the creditor can not recover an amount larger than the value of the property; that is the only amount at issue, and by it the court’s jurisdiction, is determined.
    QN APPLICATION for Writ of Mandamus. ■

      Kenneth Baillio for Relators.
    Respondents in person.
    Submitted on briefs January 29, 1898.
    Opinion handed down February 7, 1898.
   The opinion of the court was delivered by

Breaux, J.

This is an action to have an appeal which had been dismissed ex proprio motu reinstated on the docket of the Court of Appeals and tried and decided.

It appears that the property which was the subject of the revocatory action in the District Court, was of a value less than the amount of the lower jurisdiction of this court; while relators’ claim exceeds the sum of two thousand dollars.

The Court of Appeals held, that though the action is revocatory, in view of the fact that the amount of the creditors’ claim was, in their judgment, the test by which their jurisdiction was to be de-* termined, they were without jurisdiction.

The facts as disclosed are, that shortly after the relators had instituted their suit, Jules Petetin, their debtor, made a cession of his property to his creditors; the latter, except one or two including relators, voted for the acceptance of the surrender and for his discharge, which was duly granted. They, it is alleged, approved the dation en paiement assailed by relators, as hereafter mentioned.

After the debtors’ discharge, the relators, ordinary creditors, filed a petition setting forth the facts to. which we have alluded, and averring that there remained a very small pro rata for his ordinary creditors; that he did not make a complete surrender of his property, as he had fraudulently assigned and delivered the property described in their petition to his late wife as a dation en paiement of one thousand seven hundred and sixty dollars, now in possession of her heirs.

That the transfer had been fraudulently made and accepted by both parties to the transaction, and that unless annulled and set aside the effect of the transfer would be to place the property beyond the reach of his creditors.

It appears that after issue joined a judgment was rendered, annulling and setting aside the dation en paiement, ordering the property to be carried on the schedule of the debtor’s insolvency and ordering the syndic to apply the property to payment of the creditors, and further decreeing that the petitioners in the lower court, relators here, should be paid by preference over all other creditors out o£ the proceeds of the sale of the property.

From this judgment the relators took a devolutive appeal, which was dismissed as before stated, and which they now seek to have reinstated as before mentioned.

The judges of the Court of Appeals in their return state: that the test of jurisdiction in a revocatory action is the amount claimed of the original debtor, and not the value of the property, the sale of which the creditor seeks to have revoked, citing in support of that view several decisions of this court.

The record does not lead us to infer that there was any contestation between the parties, save as to the sale which had been made by the debtor to his wife; of property worth less than two thousand dollars. It is not contended that the creditors, relators here, were not creditors in the amount claimed, so that the issue is entirely limited to the sale just stated. There was no issue growing out of any denial of relators’ claim or any concest as to the indebtedness. ■The question before us is purely, whether the amount claimed and not the value of the property of the debtor alleged to have been fraudulently transferred is the test of jurisdiction.

It is a fact that this court has decided in eases in which the creditor’s claim was for an amount less than two thousand dollars that the test of jurisdiction in a revocatory action is the amount of the creditor’s claim. We do not propose to make any change or the least alteration in this respect. We reiterate: where the plaintiff’s claim is not within the jurisdiction of this court, in a revocatory action, this court is without jurisdiction, be the value of the property included in the contract sought to be annulled what it may. Then the only amount which can possibly be at issue is the amount of the creditor’s claim who asks to set aside a contract only in so far as it is a hidnrance to the collection of his claim out of the sale of the property.

Here the condition is different; the amount involved necessarily is the value of the property. The creditor can not recover more than that amount, despite the fact that his claim is for a larger amount. The limit of his claim must be the seventeen hundred and odd dollars it is conceded it is worth. Our jurisdiction depends upon the value involved. We have not found that the amount was within our jurisdiction.

Loeb & Bloom vs. Arent, 33 An. 1086: The sum in question is the sum total the creditor seeks to have credited on his claim.

It is ordered, adjudged and decreed that the mandamus in this case is maintained and made perpetual; and the respondent judges shall reinstate the cause on the docket of their court at Opelousas, and decide all other issues presented.


text:
    No. 12,652.
    Vincent Boagni vs. Armand Wartelle; Henry L. Garland, Intervenor.
    The intervenor’s action, did not raise foreign issues; it did not change the character of plaintiff’s action, and was not revocatory; therefore, the motion to dismiss was overruled.
    Separate, independent agreements of which no one knows anything save the creditor and the debtor cannot affect third persons, and can not be taken as an absolute basis for prescription.

      An imputation of payment, made at the time that the insolvent debtor paid, in part, his indebtedness to a senior mortgage creditor can not subsequently be recalled and changed to the prejudice o£ the junior mortgage.
    To the extent that payment is made a mortgage is annulled.
    it is not possible to give new life to the part annulled and thereby lessen the chances of recovery on the junior mortgage. .
    APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Frazee, J. ad hoc.

      Kenneth Baillio for Plaintiff, Appellant.

      E. D. Estillette for Intervenor, Appellee.
    Argued and submitted December 13, 1897.
    Opinion handed down December 28, 1897.
    Rehearing refused February 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued for five thousand eight hundred and twenty-seven dollars and sixty-two cents interest and fee of attorney and for a sum paid by him for taxes. He alleged for the security as to payment of the former he had a special privilege and mortgage, and for the latter (the taxes), he was subrogated to the privileges and mortgages of the State of Louisiana and the parish of St. Landry.

A default was entered in due time. A creditor of the defendant intervened in the suit. The defendant not having pleaded, the default against him was confirmed.

The plaintiff and intervenor are the parties in interest before this •court.

The intervenor alleged that the defendant was insolvent, and that he and plaintiff wrongfully combined to give plaintiff a preference over other creditors. The intervenor complained of the acknowledgment endorsed on plaintiff’s note, and avers that the note was paid at the date the suit was brought, but that plaintiff and defendant have kept alive the mortgage claimed by the former in order to prevent the intervenor from seizing the property and having it sold' under his judgment.

The intervenor specially alleged that he had procured a judgment against the defendant, and that he had a right of action to have plaintiff’s mortgage canceled in order that when defendant’s property will be offered for sale under his judgment, no prior claim secured by mortgage will prevent a sale, for after cancellation no-certificate of the recorder of mortgages will issue showing that there is a special mortgage on the property.

The prominent facts are: The plaintiff sold a plantation to the-defendant. The note secured as before stated represented the purchase price. After the sale the defendant obtained advances from the plaintiff to make his crop.

In compliance with an agreement between plaintiff, Dr. Boagni,. and the defendant, Wartelle, part of the property subject to plaintiff’s special privilege and mortgage was sold at private sale, and the proceeds were credited to the defendant.

In accordance with the agreement each deed of sale of part of the plantation sold, contains a clause setting forth that the plaintiff, Boagni, who signed each deed, consented to the sale and received, it is declared in the deed, the notes representing the purchase price made by the vendee and handed by the vendor (the defendant, Wartelle, to him Boagni). The intervenor in the deed (Boagni, creditor) expressly declared that upon payment of the notes given by the purchaser he would cancel his special privilege and mortgage, and that the proceeds of the notes would be applied to the payment of defendant’s indebtedness on note held by plaintiff, secured as before stated. Each deed was inscribed in due time.

It appears that an account current was opened between plaintiff and defendant at the time that the former began to make advances to the latter, and that advances were made as claimed by plaintiff.

The plaintiff’s petition is that he credited the proceeds of those sales to the account, and the remainder, after his account current had been paid in full, was credited on the note upon which his suit was brought.

It is shown by an entry in plaintiff’s books that on the date tha^ three of the sales were made by defendant Wartelle to several purchasers for the purpose of applying the proceeds to the payment of Wartelle’s indebtedness to the plaintiff, he, plaintiff, received the total cash paid by the purchasers. We do not gather from the testimony that on the day these sales were made, in the year 1889, the defendant was indebted to the plaintiff save as maker of the note secured by privilege and mortgage held by the plaintiff.

The indebtedness of defendant in open account for advances began in January, 1890, and continued for some time thereafter.

After a number of payments had been made, it is urged by the plaintiff that it was agreed between him and the defendant to apply the payments already made on the land and the proceeds of the notes plaintiff held, to the payment of plaintiff’s claim on current account — that is, the account unsecured was substituted to the note secured by mortgage.

Judgment was rendered for plaintiff, against the defendant as prayed for, and directed that the property be seized and sold to pay the plaintiff’s claim with interest, etc., subject to a credit of two thousand seven hundred and forty-six dollars and sixteen cents, and the further sum of two hundred and six dollars and twenty cents, and bearing interest as stated; also, a snm of five hundred and four dollars and forty-four cents, all having been paid before maturity, were deducted from the principal, and six hundred dollars collected, to be credited as having been paid on the 11th of November, 1890.

The payment of taxes to plaintiff, as claimed, also was decreed.

As between the plaintiff and the intervenor the court a qua held that intervenor is entitled to preference to the amount remaining due him.

From the judgment the plaintiff prosecutes this appeal.

The plaintiff interposed an exception to the intervention, on the ground that third opposition, after seizure of the property mortgaged, was the proper remedy, and not an intervention prior to seizure.

The intervenor has, if his allegations be sustained, an interest as creditor, which will ,b® affected by the proceedings between the plaintiff and the defendant. He has an interest opposed to both.

But it is urged by the plaintiff that an intervenor should not be permitted to change the character of the action, mnch less be permitted to interject into the suit a proceeding of the character of a revocatory action, nor make new parties in such suits.

It does not appear to us, as relates to the asserted change of issues between the plaintiff and defendant, that the change made their case different to an extent rendering it proper to dismiss the intervention. There were conflicting claims to the same fund: to the proceeds of one sale of property mortgaged to the plaintiff and the intervenor. •

Plaintiff’s action remained one of foreclosure of his mortgage via ordinaria. The intervenor has not questioned the right of the plaintiff to bring the suit, or to stand in judgment.

The issue tried was closely connected with the principal issue, in that both laid superior claims to the same property. The conflicting claims gave rise to no issues foreign one to the other.

Prompted by the objection that the action is revocatory, we have examined the issues from that point of view.

The intervenor, as we take it, does not primarily seek to have a contract rescinded. He petitioned, by way of intervention, to uphold the binding effect of payments he claimed as having indirectly enured to the benefit of his judicial mortgage. He sued for the recognition of an alleged right.

If his petition be sustained it will cut short the effect of subsequent agreements in so far as he is concerned. It does not follow that the intervenor tendered issues in effect revocatory in character from the mere fact that the intervention may interfere with agreements (of date subsequent) to plaintiff’s mortgage. We do not find that the intervenor seeks to put issues between plaintiff and defendant alien to the case, or is endeavoring to make parties to the suit persons without substantial interest. The clerk of court, a party to the suit, plaintiff urged, is a third person; in effect interposing new questions. He is, we think, a party only in name. He was needlessly called in the suit by the intervenor. He has no interest, controls no issue and is not to be considered in arriving at conclusions. His presence in the suit in his clerical capacity is no cause for dismissing the intervention.

Upon this point the plaintiff insists that the issues should not now be passed upon for the reason that the property may sell for an amount sufficient to pay both his mortgage and the junior mortgage, rendering in that case a decision unnecessary.

We are not led to so infer from the pleadings and facts before us. If it should sell for enough, the decree here will not affect the interest of any one.

The plaintiff, in the first place, sought to meet the issues on the merits by interposing the plea of prescription as a complete bar to any attempt to offset the agreement made with his debtor.

The intervenor contends in answer, that prescription runs from the date the agreement became known to him, and he cites in his support the case of Byrne vs. Their Creditors, 33 An. 202, in which it was held that the law can hold no one to impossibilities, which would be the very task imposed on a party if required to assail an act which has no existence as to him.

Thus in regard to the very point here involved a precedent has been established.

While it was not intended to conceal the agreement, practically it was hidden from the possible knowledge of the intervenor until a few days prior to his intervention in this suit.

There was as to third person no date; no commencement under an agreement; there was no document recorded, nor could there be delivery of property operating in effect a notice.

A creditor can make nothing of the plea of prescription against third persons based upon his own personal agreements- with his debtor, under the circumstances here. ,

This brings us to the question bearing upon the imputation of payment.

The defendant was an insolvent. He was in consequence without right to make the changes he undertook to effect. It was not possible, legally, to countermand payments already made and impute them to the payment of a debt contracted at a date subsequent to the mortgage indebtedness.

To the extent of the payment the mortgage had been annulled. It was not possible under the circumstances to revivify and give new life to that part of a mortgage annulled to the prejudice of plaintiff’s fellow-mortgagee. It would be giving an advantage never contemplated by the law-making power, if the mortgage creditor first in rank could thus lessen the chances of recovery of amount due to a creditor with mortgage second in rank.

After the imputation of payment to the amount of the partial payment the junior mortgage was benefited as against the insolvent-debtor. The mortgagee acquired a right which could not be affected by a change in payments made.

For the reason of the law and the evidence being in favor of the intervenor and against. plaintiff and defendant, it is ordered and adjudged that the judgment appealed.from is affirmed.


text:
    No. 12,632.
    Southern Cotton Oil Company vs. Boland S. Leathers et al.
    An injunction was issued to prevent the defendant from buying seed -cotton in sacks; the latter, the sacks (not the cotton), were owned by the plaintiff in injunction.
    The planter, it was alleged, had, to the knowledge of the defendant, bound himself to fill the sacks with new cotton, and to ship the cotton to the plaintiff. Instead of so doing, he had sold the cotton, ox ;was about to sell it, to the defendant.
    The injunction was set aside on bond. Plaintiff appealed from the order authorizing the defendant to bond.
    The value of the sacks, as compared with the value of the cotton, was small There was no injury, irreparable.
    When an injury is reparable an injunction restraining it may be dissolved on bond.
    An order dissolving on bond an injunction not working irreparable injury is not appealable.
    The plaintiff may be entitled to damages, for which the bond was given. As to defendants, there is no question of specific performance. O. C. 1926.
    A PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Edwin T. Merrick for Plaintiff, Appellant.

      Geo. W. Flynn for Defendants, Appellees.
    Submitted on briefs November 15, 1897.
    Opinion handed down December 13, 1897.
    Rehearing refused February 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued the defendant for seven hundred cotton seed sacks, valued by it, at ten cents each; also for one hundred and fifty dollars, value of the use of the sacks during defendants’ possession.

A writ of sequestration for the sacks was issued on plaintiff’s petition.

In matter more particularly of the injunction which was issued at its instance (in addition to the writ of sequestration) it sets out its •custom of furnishing seed sacks and avers that some three hundred thousand of its sacks had been delivered to cotton farmers to be filled, and those not filled to be returned in accordance with written agreement.

Plaintiff charges that one of the defendants, who is engaged in the carrying business, though he had full knowledge of this agreement and was fully aware that it was the owner of these sacks, notwithstanding bought the seed for his account, or that of a company in which he is interested, and thereby it would divest its trade (unless prevented by an injunction) and cause it irreparable injury.

This defendant was allowed by the court a qua to bond the injunction on a bond of fifteen hundred dollars.

An order for suspensive appeal was granted to this court, and the appeal was taken by plaintiff. An affidavit was filed on the appeal with the view of supplementing the allegations of its petition regard - ing the value of the interest involved in the suit.

In the motion to dismiss the appeal a number of grounds are alleged.

We think the following ground, of the number set forth, is ground enough to sustain the motion: “ the injuries alleged can be compensated in money.”

Appellant seeks to bring its case within the application of principles laid down in several decisions of this court, in which it was held, in substance at least, that the claims set up had no equivalent in money, as, for instance, where the feelings and sensibilities of the one complaining have been greatly outraged, or where he has been deprived of an object of affection or of things deemed of great value because of the affection and regard with which they are associated. The loss of the shelter of one’s house, if lost by an act of injustice, is another instance of injury which may not be compensated for in money and is included in the class of cases in which an injunction should not be dissolved on bond.

Here the case is not of that class of cases just indicated.

The offending here consisted in buying cotton in sacks, which the ■defendant knew was plaintiff’s property. The value of these sacks is alleged. The purchase by the defendant of cotton in bags owned by another than the seller is not an injury in so far as it may be actionable, which can not be compensated for in dollars and cents.

This brings us to the trade and business which appellant alleges has been established by it through years of effort and careful atten - tion, and which it is alleged would be diverted and irreparably lost if the injunction be not made perpetual.

It will be borne in memory that we have naught to do at this time with deciding any question going to the merits of the injunction.

'The conclusion of appellant above quoted from his petition in regard to business diverted and irreparable damages, taken with the facts alleged, offer very slender ground upon which to hold that a bond can not contain provisions sufficient for the payment of all recoverable damages.

The issue, traced to its origin, grows out of the alleged disposal of cotton, and the unwillingness of those to whom plaintiff’s sacks were delivered to comply with their promise.

The debtors, or promissors, not being before us we will not pass upon the nature and binding effect of the alleged agreement between them and the plaintiff, further than to say if the contract was one “ to do ” the equivalent for the loss was assessable in damages at any rate as relates to defendants, third persons, with notice as alleged.

Toute obligation de faire on de ne pas faire se resout en dommages et interets en cas dHnexecution de la part du debiteur. Baudry-Lacantinerie, Yol. II, p. 620.

It follows, in our opinion, if the defendant aided them, or is engaged in or is about to aid them to any extent and in such a way that he is responsible, the injury may be compensated for in money.

Taking each case of alleged purchase of cotton from the planters, it does not seem that the injury alleged to have been caused by their failure to fill the sacks and consign them to the plaintiff, and the asserted share taken by the defendant therein, are irreparable.

For instance, if one originally holding three or four thousand sacks were to sell them to another than the owner of the sacks after hav - ing filled them with cotton, and the former were sued and the buyer from him enjoined, the injunction set aside as in case of bond, the order authorizing the bonding would not offer ground for appeal as working an irreparable injury.

The same, we believe, is true of the large number of sacks distributed by the plaintiff among cotton planters to be filled with cotton seeds. The injury would be greater, but would not be irreparable. The whole sum of the business can be ascertained, and the loss to its business on plaintiff’s theory determined.

Article 307, relative to bonds, we think, may include the case where the number of purchases have been made, and which amount to an interference with another’s business, for which damages may be recovered.

In fine it will be time enough to determine that such injunctions can not be dissolved on bond when it will have been proven, in the action here, that plaintiffs will be subjected to continuous grievance or subjected to any grievance at all.

Where the injury is irreparable, not susceptible of adequate return and the damages occasion a persistent grievance that can not be in any other manner stopped, injunction as a remedy may from the first be made so peremptory that a dissolving on bond will offer ground for sustaining an appeal.

On the face of the papers we do not take it that such is the condition of affairs in this case.

The method followed to get possession of property, delivery of which has been promised, has given rise to questions that are res nova. Though concerned not to anticipate, we, as relates to remediable injury, are not impressed by the reason that looks forward to the possibility of forever enjoining all buyers at times, however distant, from buying goods in open markets in the sacks or bags of another.

Neither are we impressed by the argument, upon the theory that the one who promises to sell can be coerced into the discharge of his promise to sell by enjoining all buyers from buying from him.

But if the loss should be as argued the bond upon which the injunction was dissolved will not be an obstruction to a proper judgment. In the meantime it is ample security, we think. The court a qua has not overstepped the bounds of its discretion. We must, at this time, withhold our interference.

The value of the cotton (not owned by plaintiff) as compared with the value of the sacks in which it was, is much larger, and in consequence a claim through or grounded upon the state of being the owner of the sacks does not impress us as being one of the kind of injuries to be considered irreparable.

In support of the position taken it is also urged by the plaintiff that the defendant having suggested in his motion to bond, that the Writ of injunction works an irreparable injury to his interest, the ■defendant was concluded by that allegation, as relates to plaintiffs; 3n other words, that there was inconsistency between the two: when ¡he (defendant) sought to bond the injunction and his position when ¡he seeks to prevent relator from appealing from an order to bond.

We think that it is answer enough to this assertion to say that the injury may be irreparable as to the defendant seeking to set aside the injunction on bond; and not irreparable as to the plaintiff seeking to appeal from the order granted defendant to bond the injunction.

Moreover, a defendant does not admit by the suggestion of his injury that the other (the plaintiff) has been or is injured.

Similar allegations are made in nearly all petitions for injunctions. It never has been held that it gave to the defendant an additional light to set aside the injunction on boDd.

We note that Mr. High in his Treatise on the Law of Injunctions, Sec. 1497, 3 Ed., views the matter as resting in the sound judicial ■discretion of the court of the first instance and cites two decisions of ithis court. State ex rel. Cummings vs. Judge, 29 An. 360; State ex rel. N. O. and Havana S. S. and Lottery Co. vs. Judge, 23 An. 766. We, nevertheless, have not treated the case as one in which the court a qua had exclusive jurisdiction to determine whether or not the injury was irreparable. We have found that it was not irreparable. It follows that the appeal must be dismissed.

It is dismissed and a decree of dismissal will be accordingly ■entered.

Mb. Justice Miller dissents.