author: Poci-eé, J.

text:
    No. 9360.
    R. S. Charles for use etc. vs. Board of Liquidation.
    A devolutivo appeal taken by a warrant or a bond holder under Act 11 of Extra Session of 1875, requiring the action of tlio Supreme Court on all warrants or bonds the validity of which is questioned as a prerequisite to the funding* of such warrant or bond, must be governed by Article 598. Code of Practice, which denies the rii**ht of appeal, if a year lias expired since the date of the final judgment.

      Tho Supremo Court has no jurisdiction in. such matters, but by appeal—which must be brought by the party who has recovered judgment, if the defendant Board refuses or neglects to appeal.
    An appeal in such a proceeding, taken after a year has expired from final judgment, will be dismissed.
    APPEAL from the Civil District Court for the Parish of Orleans. . Tissot, J.

      Famin' & Simonds for Plaintiffs and Appellants.

      M. J. Cunningham, Attorney General, for Defendant and Appellee.
   The opinion of the Court was delivered by

Poci-eé, J.

Pinal judgment was rendered in this case on November 7, 1883, and the present appeal was taken on January 26, 1885. Hence the attorney general properly contends that the appeal was taken too late and that it should be dismisssed.

This proceeding- was instituted under the-provisions of Act No. 11 of the Extra Session of the Legislature of 1875, which requires that the validity of all warrants and bonds, whenever the same is questioned, shall be determined by the Supreme Court as a prerequisite to a legal exchange of tlie same by the Board of Liquidation, created under Act No. 3 of 1874, for bonds authorized to be issued by said Board.

The object of this appeal is to submit to the final action of this court a decree of the district court recognizing the validity of the warrant sued on by plaintiff. His counsel contend that as this appeal is taken by appellant from a judgment in Ms favor, the provisions of Article 593 of the Code of Practice denying the right of appeal after a year has expired to be computed from the day that final judgment was rendered, do not apply to appeals under the provisions of the Act of 1875 hereinabove referred to.

It is true, as they contend, that the act does not specify the time within which the matter must be brought before the Supreme Court; hence it appears to our minds that such proceedings were intended by the law-maker to he governed by existing laws on the subject.

Tire jurisdiction of this court over all matters must emanate from the Constitution. In such matters, this court has no other hut an appellate jurisdiction, hence the only mode of‘testing the validity of the warrant held by plaintiff is by means of an appeal.

This is conceded by him, for a devolutive appeal was the remedy which he has invoked; and he should have complied with the only law which regulates that kind of appeals.

The act provides no other mode; hence we intimated in the case of the State ex rel. Meyers vs. Board, 33 Ann. 126 that the requirement of the act would necessitate an appeal by the very party in whose favor judgment had been rendered below, in case the Board did not appeal. The argument that.time does-not enter as an essence in the validity of such appeal finds no sanction in a proper construction of the act.'

It contains the following provision: “In order to facilitate and bring lo a speedy determination, all matters in controversy, as provided for in this act, every suit hereby instituted shall have precedence in all courts over all other cases, and to be fixed by motion of either party ; the day of trial to be named in the motion, and all other cases fixed for the day named in the motion, fixing such cases for trial to give way thereto.”

Language so explicit, and indicating so clearly the intention of the law-maker to speedily dispose of all such controversies, unmistakably discards the idea that he could have contemplated an extension of the time fixed for taking devolutive appeals.

We are not concerned with the fate of the warrant or with the legal status of the judgment rendered in its favor by the district court.

We are only applying the inevitable legal consequences which attacli to plaintiff’s own laches.

The appeal taken herein is therefore dismissed at plaintiff’s costs.


source: Caselaw Access Project

author: Manning, J. Benner, J.

license: Public Domain

text:
    No. 9117.
    Bettie Scott vs. Mary E. Briscoe et als.
    None but creditors and forced heirs can attack the acts of an owner of property fraudulently alienating it.
    Article 1754, Civil Code, is applicable only to spouses who have forced heirs; and though the nullioy of donations, disguised or macte to persons interposed, is absolute, in the sense that they are not reducible merely, but wholly null, it is only relative to forced heirs, and cannot be invoked by mere simple collateral heirs.
    APPEAL from the Ninth District Court, Parish of Tensas, Hough, J.

      Julius Aroni for Plaintiff and Appellant.

      1Ü, I). White, J. W. Montgomery and Steele & fíwrreU for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff is one of the nieces and legal heirs of William J. Briscoe, and sues his widow to annul her title to the Mound plantation in Tensas for die causes set in Mrs. Upshur’s suit just decided. Two other nieces of Briscoe, co-heirs with Mrs. Scott, refused to join her in the suit and are made defendants.

The sales and conveyances attacked in this suit have been annulled at the instance of Mrs. Upshur, a creditor of Briscoe. Nevertheless we liave to pass upon the question raised here, whether the plaintiff, being a simple and not forced heir, can attack the acts of Briscoe by and through which his wife acquired her title. Numerous decisions confine the right of this attack to creditors and forced heirs. Druman v. Klemnan, 31 Ann. 124; Stewart v. Mix, 30 Ann. 1036; Compton v. Maxwell, 33 Ann. 688; Brown v. Stroud, 34 Ann. 374; Kerwin v. Ins Co., 35 Ann. 33.

The judgment below recognised this settled rule and was in favour of the defendant, Mrs. Briscoe, rejecting the demand for annulment of her title at plaintiff’s instance, but recognised Mrs. Scott as one of the legal heirs of Briscoe with right to open his succession in form.

Judgment affirmed.

On Application por Rehearing.

Benner, J.

Our original opinion rested on the question of estoppel, which logically xn-imed and antidpated all other questions in the case.

Tt is conceded by plaintiff’s counsel that the numerous authorities quoted therein, fully sustain the general proxrosition, that simple heirs cannot be heard to falsify authentic declarations of their ancestors or to attack titles solemnly granted or recognized by him.

But a learned and ingenious argument is presented To establish an exception to this general rule iu the case of donations between husband and wife, disguised in the form of onerous contracts or made to persons interposed, on the ground that such donations are stricken with absolute nullity by article 1754 of the Civil Code.

It is claimed that the object of x>laintiff’s action is to show that the title to the proporty involved, was really acquired by Briscoe, and that he caused the same to bo x>laced iu the name of his wife, with the intention and effect of making to her a disguised donation.

Tt cannot be disputed, as a scientific proposition, that the result of an unqualified, absolute nullity, is to deprive the act of all effect whatever, to leave matters as if the act had not been done, and to open it to the attack of any person whatever, having the slightest interest.

Neither can it be denied that the French Court of Cassation, many of the ablest commentators upon the French code, and even this Court have, in general terms, declared that the nullity denounced by article 1754 (C. N., art. 1099) was absolute. 5 Toullier, No. 901; 1 Grenier, No. G91; 11 Dalloz, ch. 12, sec. 4, art. 3, No. 3; 4 Marcado, p. 245; Journal du Palais, 30 Nov., 1831; Id. 27 May, 1838; Succ’n of Ames, 33 Ann. 1328; Casanova vs. Acosta, 1 La. 179; Thibodeaux vs, Herpin, 6 Ann. 673.

The case last cited, taken in connection with the first decision therein reported in 5 Ann. 578, will be found to rest on peculiar principles.

With this exception, the assertions of absolute nullity referred to, were generally made in cases brought by forced heirs or in discussions touching the question whether such prohibited donations were null in their entirety, or only reducible to the disposable portion; on which question the courts and commentators of Prance are almost equally divided, many holding that they were reducible merely. 9 Duranton No. 831; Coin-Delisle, p. 614; also, Paujol-Rodier-Devilleneuve; Journal du Palais, 21 June, 1837.

This Court, as will be seen by the authorities above quoted, has adopted the former view. *

We feel no doubt, however, that the predication of absolute nullity is limited to the effect of the act's, and is not extended to the parties who may invoke it.

Whenever the question had been fairly presented, it has been uniformly held, so far as our diligent researches have extended, that the nullity referred to could not be invoked by mere simple, or collateral heirs. It came before the Court of Cassation in Prance as early as 1819, and the court disposed of it in these words:

“La eou/r de Bordeaux a suivi les vrais principes dm, droii en décidant que Vartiele 1099 était éira/nger á un iestateur qui ne laisscátpas dihériliers cwjamt droit a une réserve.” Journal du Palais, 1st April, 1819.

Mourlon evidently takes the same view, for, after stating the doctrine of absolute nullity, he proceeds: “Comment les Mriüers reservataires prouveront-ils l’intorpositíon de personnes ? ” obviously showing that he did not contemplate the possibility of other heirs having-such right. 2 Mourlon, No. 1023.

Coin-Delisle, in discussing the general declaration of absolute nullity which had been made in certain decisions, adds: Nous pensons bien

que la jurisprudence abandonnera cette qualification de nullité absolme, pour dire que la nullité n’est que relative á la personne des hóritiers á réserve, et declarer toujours les eollatéraux non-recevables.” CoinDelisle, p. 615, No. 16.

Aubry and Ran hold that the nullity attaches only when the prohibited donation is made with a view to commit a fraud upon the law by exceeding the disposable portion—whence it follows that when there are no forced heirs, and hence no limit to the power of disposition, the nullity does not apply. 7 Aubry and Rau, p. 276, note 24.

This view is enforced by an opinion of the Court of Cassation, saying: “Qu’il est de prinoipe que les parties peuvont faire un ckoix entre plusieurs moyens d’atteindre leur but, lorsque ce but est licite en luiméme, qu’ainsi l’interposition de personnes n’est pas condamnable qu’autant qu’elle a pu couvrir une fraude a la loi.” Journal du Palais, 7 Feb. 1849.

Finally Laurent, after stating the entire nullity of such prohibited donations, says: “II ya dependant une restriction qui résulte des termes de la loi. Le premier alinéa suppose que les donations excédent le disponible, c’est en faveur des réservataires qu’il établit la reduction des libéralitós excessives; douc le second, qui prononce la nullitó des donations dissimulées, doit etre limitó á la mérne hypothese. S’il n’y a pas des réservataires, la nullitó n’a plus raison d’etre. C’est it dire que Particle 1099 ne s’appliqne aux donations que les époux se font pendant le mariage que dans le cas oü ils ont des enfant.” Pie admits that French jurisprudence has derogated from this doctrine in so far as to hold that disguised or interposed donations between spouses, even when they have no forced heirs, may be revoked under the previous article 1096, (Art. 1749 of our code). But as Briscoe died without revoking, no such question is presented here. 15 Laurent No. 408, p. 462.

It is to be observed that the decisions of the French courts recognizing the right of the spouse who has made a disguised donation himself to invoke its nulllity, rest upon C. N. Art. 1096, and not exclusively onArt. 1099 (our Code Arts. 1749 and 1754), and have no application to the case where the spouse has died without revoking and without forced heirs. See specially Journal du Palais, 1873, January 22.

We have failed to fin d an autli ority recognizing such right in collateral heirs.

These authorities and the reasons upon which they rest satisfy us that the plaintiff in this case is without right to urge the nullity relied upon by her.

Briscoe had no children and no forced heirs. There was no limit as tQ his power of disposition of his property, saving the rights of creditors. He had the power to give to his wife all that he could give to a stranger. C. C. Art. 1746. lie had the capacity to give to her, and she to receive from him, his whole estate, without, in any manner, infringing the rights of this ordinary collateral heir. If it was his intention to give, it was a thing lawful in itself, operating no fraud upon any provision of the law, and he had the. right to select the mode of doing so. If he had received the title from Mrs. Gregory, and then donated it to his wife, neither plaintiff nor any one else, save creditors, would have had the right to complain. If, to avoid circuity, he had the title made directly to her, no law was violated and no injury done to plaintiff.

Prom this it follows that plaintiff does not bring herself within any exception to the rule of estoppel which bars her action.

We have not noticed the references made to Art, 2446, C. C., prohibiting sales between spouses save in certain cases; because, from no point of view, can this be regarded as a sale from Briscoe to his wife.

Rehearing refused.


author: Fenner, J.

text:
    No. 9380.
    G. Henry Crétin vs. Daniel Levy.
    In a suit for damages for malicious prosecution of a civil suit, and for a wrongful pro vis. ional seizure, the first ground of action will be disregarded in absence of proof of malice and want of probable cause. The judgment dissolving the writ is res judicata as to its wrongful issuance, and establishes liability for actual damages.
    Where alleged injury to credit and resultant losses appear attributable to the suit itself and not to the seizure, they will not be allowed as damages for the wrongful issuance of the latter.
    The counsel fees, allowable as damages for the wrongful issuance of conservative writs, are not those incurred for the defense of the suit, but only those rendered exclusively in relation to the writ.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      Alex. Hebert for Plaintiff and Appellant.

      Demid H. Borrow for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This is an action for damages claimed to have resulted from the institution of a suit for rent by defendant against plaintiff, accompanied by a writ of provisional seizure.

The petition combines the elements of an action for malicious prosecution of a civil suit and for wrongful seizure.

So far as the first ground of action is concerned, we concur with the judge ad hoe, that the evidence fails to establish that malice and want of probable cause which are essential to the maintenance of such an action.

Nothing remains for consideration except the damages resulting from the wrongful seizure of plaintiff’s property.

Plaintiff kept a hotel and barroom which he leased from defendant. The officer charged with the execution of the writ of provisional seizure was instructed not to interfere with plaintiff’s business. He executed the writ by appointing plaintiff’s bar-keeper as sheriff’s keeper informing him, at the time, that plaintiff could continue.his business as usual. On the first or second day after the seizure, plaintiff released the same by giving bond.

The decision in the rent-suit, dismissing the action and dissolving the writ, is conclusive on the question that the latter was wrongfully issued. The judgment is res judicata on that question. Roos vs. Goldman, 36 Ann. 133; Block vs. Meyer,s 35 Ann. 220; Barrimore vs. McFeely, 32 Ann. 1182. This entitled plaintiff to damages; but in .absence of malice or want of probable cause, the measure of damages is the actual expense and loss resulting from the seizure itself.

Much evidence is taken showing injury to plaintiff’s credit, but we agree with the judge a quo that such injury was attributable, not to the mere seizure, but to the suit. Plaintiff’s own testimony is direct that his credit was affected during the entire pendency of the suit, and became good again as soon as it was decided. See Byrne vs. Gardner, 33 Ann. 9.

There was no substantial interference with his business or control of his property. The seizure lasted one, or, at most, two days, and was merely formal.

The mortification and mental suffering professed to have been suffered by plaintiff, he himself attributes to the “ suit and seizure,” and we see no reason why the latter should have aggravated them.

We consider him entitled to no damages except counsel fees incurred exclusively in relation to the provisional seizure. He is not entitled io counsel fees for the defense of the suit, but only to those peculiar to the seizure. Penny vs. Taylor, 5 Ann. 714; Accessory Co. vs. McCerren, 13 Ann. 214; Phelps vs. Coggeshall, id. 440.

We can discover none of this character except those incurred for the bonding of the writ. They are allowed by the judge a quo and assessed at twenty dollars which we do not consider sufficiently underestimated to justify us in disturbing the judgment.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9370.
    John Chaffe & Sons vs. J. M. T. Elliott, Sheriff, et al.
    A sheriff, who is a nominal party to an injunction proceeding to prevent a sale of property under fi, fa, and against whom no personal judgment is sought, has no right to set up defenses which the party enjoined, or the alleged transferee of his rights, alone ° could raise.
    Appeal from Bull, J. the. Tenth District Court, Parish of Red River.

      L. B. Watkins and S. A. Ball for Plaintiffs and Appellants.

      J. F. Pierson and Fgcm & Fgcm for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The appellee asks the dismissal of this appeal.

1. Because the bond which is for one hundred dollars, is not for the amount fixed by the court, viz : six hundred dollars.

2. Because the amount in controversy is less than two thousand dollars.

I.

The order granting the appeal, fixed two amounts: six hundred dollars if the appeal be suspensive; one hundred dollars if devolutive only.

The amount for which the bond was furnished, if insufficient for a suspensive appeal, satisfies the law, for a devolutive appeal. It was optional with the plaintiffs to have taken and perfected either appeal. They have elected the devolutive appeal and have given the bond required by the court for such appeal.

II.

The plaintiffs distinctly claim the ownership of 920 acres of lafid, alleged to bo worth over two thousand dollars, and in this Court an affidcwii is filed in verification of the averment.

The motion to dismiss is overruled.

On the Merits.

The plaintiffs appeal from a judgment sustaining an exception and dismissing the suit-

It is sufficient to say, for the purposes of the controversy at its present stage, that the plaintiffs claiming to be the owners of land seized under a writ issued for the benefit of Madison Mobley, against the heirs of Bradley and Goldsby, obtained an injunction to arrest the sale of the property levied on, as belonging to said heirs, and made Madison Mobley and the sheriff defendants in the proceeding.

Without being- joined by Mobley, the sheriff excepted to the right of plaintiffs to proceed in this form on the grounds:

1. Want of the proper party, namely: That Ben Wolfson, to whom Mobley had transferred his rights, title and interest in and to the judgment, the execution of which is enjoined, is not made a defendant herein; that the transfer was made on the 8th of December, 1883, duly recorded at about that date, and that it is binding on the plaintiffs who had notice of it through their counsel.

2. Insufficiency óf the bond in this, that it is not in favor of Ben Wolfson.

3. Insufficiency of the petition which discloses no cause of action and no right to the remedy, the injunction sought being designed to supply a suspensive appeal not taken and perfected.

The petition does not claim any damages from the sheriff, and does not seek to hold him in any manner personally responsible. 25 Ann. 414. He is held merely as a nominal party, a stake holder, and represents nobody in the suit besides himself. C. P. 15, 20; 23 Ann. 580.

The writ enjoined issued in favor of Madison Mobley. Nothing in the record, at the date of the filing of the petition herein, showed that the judgment on. which execution thus issued had been transferred to any one.

Mobley had filed no appearance at that date, neither had Wolfson.

It is clear, that if the sheriff had no standing iu court to set up defenses in behalf of either of these, those which he has raised, and of which those parties have no knowledge, cannot be inquired into, for the plain reason that the judgment thereon, if adverse to either Mobley or Wolfson, or both, in the absence of issue joined against or by Mobley or appearance by Wolfson, would not be binding on them.

The law is plain that, if the suit has for its object to set aside the seizure, as having been affected on property not belonging to the party against -whom the order was directed, but owned, on the contrary, by the party claiming it, the petition must be served on the party making the seizure. C. P. 398.

This is the rule in cases of third oppositions, which the law considers as separate demands, distinct from the suit in which the order was granted, and it applies to cases in which the action is brought directly.

This view of the case renders unnecessary an investigation of the merits of the exceptions, which the lower court had no authority to consider.

It is therefore ordered and decreed, that the judgment appealed from be reversed, and that this case be reinstated; that the exceptions of the sheriff be overruled, and that the case be remanded to tlie lower court for further proceedings, according to law, at the costs of the sheriff in both courts.


author: Poohií, J.

text:
    No. 9357.
    John Chaffe & Sons vs. D. D. DeMoss and Wife.
    In an action by a judgment creditor, for the simulation of a purchase of property, which he alleges to be that of his debtor, the value of the property, and not the amount of the .judgment sought, to be executed thereon, is tbe real matter in dispute.
    A married woman, duly separated in property from her husband, has the legal right to purchase property for her own and separate account, either for casli or on terms of credit—and property thus purchased, becomes her paraphernal estate. The burden of proving the invalidity of such purchasos. is on the party attacking the same.
    APPEAL from tbe Eighth District Court Parish of Madison. Boloney, J.

      H. P. Wells and John B. Stone for Plaintiffs and Appellants.

      Parrar d¿ Spencer for Defendants and Appellees.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poohií, J.

Plaintiffs’ object, by means of tliis suit, is to obtain a judgment declaring tbe purchase of a plantation by the wife of DeMoss to be a nullity and a simulation, and that the jiurchase was really made for the husband, who is their judgment debtor in the sum of $1679.86. Hence they seek to execute their judgment on said plantation, which the record discloses is worth about $6000.

Appellee’s contention is that this Courtis without jurisdiction, for the reason that the amount of the judgment, which is the matter in dispute, is less in amount than the lower limit of our jurisdiction. They are in error; the real matter in dispute is the validity of tlie defendant wife’s title to property of the value of $6000. A judgment in their favor would strip the wife of her title to the property in question in toto; a judgment in her favor would confirm her title. Under no circumstances, could the validity- of plaintiffs’ judgment he affected by- the final determination of the issues presented by the pleadings in the present controversy.

Appellees can obtain no support of their theory from the two cases which they quote: Loeb & Bloom vs. Arent, 33 Ann. 1086; Zuberbier & Behan vs. Morse, recently decided, and not yet reported.

Both of those cases were instances of the revocatory action, in which the matter in dispute is the right of the seizing creditor to subject the property to the execution of his judgment, without necessarily effecting the status of the property- as to third parties.

As stated above, in the present case, which is practically the action in declaration of simulation, a judgment would determine the title to the property as to the whole world.

The motion in this case is governed by the considerations which prevailed in the case of the State ex rel. Bloss vs. Judges of Court of Appeals, 33 Ann. 1351.

The motion to dismiss is therefore denied.

On the Merits.

The following are the salient facts in the controversy :

On the 20th of July, 1875, Mrs. DeMoss obtained a judgment of separation of property, and for four hundred dollars, against her husband. It was duly published, and was followed by execution in November of the same year.

The Crescent plantation, heretofore owned by the' husband, was seized at the instance of O. M. Klein, in August, 1875, and adjudicated to H. R. Lucas, who in February following sold the same to Mrs. DeMoss for the sum of $6009.10 wholly on terms of credit.

The purchase price was subsequently^ paid to Lucas in full and byinstalments, and partly by the proceeds of cotton raised on the land, and the balance by- a loan from another party on mortgage not yet satisfied.

As it is now well established in our jurisprudence that a married woman, duly separated in property from her husband, can purchase property, either for cash or on terms of credit, and that property thus acquired is hei separate and paraphernal estate, it follows that plaintiff must fail in this ease, unless the evidence shows that the judgment of separation is a nullity, or that there was fraud or other elements of simulation in the purchase by the wife.

In their pleadings they allege the nullity of the judgment, hut the record is barren of any evidence in support of their allegation; and the ground is virtually abandoned, as their counsel made no reference thereto, either in their oral argument, or in their brief. The judgment is shown to be valid.

The only suspicious circumstance disclosed b3r the record in connection with the reality of the wife’s purchase, is the fact that, in a written contract between plaintiffs and the defendant husband, in the year 1877, the latter is described as the owner of the Crescent Plantation now in litigation. But the wife was not a party to that instrument, and lienee she could not be bound by the declaration., which might, at most, involve, her husband as the perpetrator of a fraud; hut her titles, if otherwise real and legal, could not be affected thereby.

But, in point of fact, the advances which DeMoss secured from plaintiffs, and which were the subject-matter of the contract referred to, were used by him on another plantation which he leased and cultivated during that year. A careful examination of the record has satisfied us that the bona fide intention of Lucas, the vendor, and of Mrs. DeMoss, his vendee, was to make a sale to her, as her separate property, of the plantation which Lucas had bid in at the sheriff’s sale in August, 1875, with the lawful intention, and with the avowed purpose of selling it to Mrs. DeMoss, in the manner that the idea was subsequently carried out.

Great reliance is placed by appellees’ counsel on the principles announced by tills court in the eases of Miller vs. Handy, 33 Ann. 160, and Forbes vs. Layton, 34 Ann. 975.

But in tlüs tli03r must be disappointed. The utterances in both cases applied to purchases made by women not separated in property, but under the regime .of the community. Hence, neither ease has any application to the present discussion, which involves the legal status of property purchased b}' a married woman duly separated in property from lier husband.

The conclusions reached b,y the district judge are correct, and they are also ours.

Judgment affirmed.

Bermudez, C, J. concurs in the decree.


author: Manning, J.

text:
    No. 9265.
    Louisiana Board of Trustees of the American Printing House for the Blind vs. V. J. Dupuy et als.
    The title of a legislative Act need not be a synopsis of its contents. It is sufficient if it indicate the general purpose of the law without specifying each provision thereof.
    The legislature usurps the functions of the judiciary when it pronounces the forfeiture of the chartered rights of a corporation and executes its own decree by taking possession of the corporate funds.

      The legislature can delegate to the State Treasurer authority to demand and receipt for certain funds, and the authority to demand includes ex vi termini authority to demand judicially or stand in judgment for the State.
    The State can reclaim a donation made by it to a corporation when the condition upon which it was made lias not been fulfilled and the time for its performance has passed.
    But she cannot confiscate funds in the possession of the corporation, donated by others, and appropriate them to her own use or to the use of another corporation.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor. J.

      JE. T. Merrick and John A. Campbell for Plaintiff and Appellant.

      M. J. Cunningham, Attorney General, FL. B. Magruder and F. L. Mchardson, contra.

   The opinion of the Court was delivered by

Manning, J.

The object of this suit, the nature of the proceedings therein, and the mode devised by this court to enable the parties to test their respective claims and ascertain cheir rights, are fully set out in the Opinion read when it was here before. 31 Ann. 305.

Pursuant to the decree then rendered an account was tiled by the plaintiff which was opposed by a number of the contributors—by all of them who had theretofore brought suit for their contributions and by others who were induced to demand them then—and the result was that the plaintiff compromised with all these claimants and paid them five thousand dollars in full. This settlement was put in the form of a judgment.

But meanwhile the Treasurer of the State and the Louisiana Institution for the Blind liad also opposed the account, aud this compromise is expressly stated to have', been made without prejudice to the rights of these two opponents who were therefore, unaffected thereby. The present contest is between them and the plaintiff.

The State had contributed two thousand dollars to the plaintiff by an appropriation made in 1860 the year following its incorporation, the charter having been made by seven persons in January 1859 under the general law authorizing corporations io be thus made. The original petition in this case was filed in December 1877 and the next succeding legislature passed the Act which is the basis of the pretensions set up in behalf of the State iu the present controversy. It is as follows:

AN ACT
“To authorize and direct the Louisiana Board of Trustees of the American Printing House for the Blind to pay certain funds into the State Treasury for the benefit of the Louisiana Institution for the Education of the Blind and Industrial House for the Blind; to provide the mode of said payment and for the delivery of said money to the treasurer of said institution, and to relieve from responsibility said Board of Trustees of the American Printing House for the Blind.
PREAMBLE.
“Whereas, the Louisiana Board of Trustees of the American Printing House for the Blind, incorporated under the general laws of the State, and organized under, a charter bearing date--, 1859, did receive contributions to be applied to the establishment at Louisville, Ky., of the American Printing House for the Blind; and
“Whereas, said charter provides that if said printing house should not be established, as required by said charter, within a limited time therein fixed, which limit has long since been reached, said donations should revert, with accumulated interest thereon, to the original donor; and
“Whereas the State of Louisiana, by Act No. 163, of the General Assembly of I860, approved March 10th, I860, entitled ‘ An Act to appropriate the sum of two thousand dollars to the Louisiana Board of Trustees of the American Printing House for the Blind,’ did appropriate the sum of two thousand dollars to said board for said purpose; and
“ Whereas, said sum with accumulated interest is now in the hands of said board; and
“ Whereas, there remains also in the hands of said board certain other amounts contributed by private individuals for said purpose, which amounts are unclaimed by said contributors ; and
“Whereas, owing to the small amounts contributed by each of said donors, and the lapse of time since said donations were made, it is improbable that said donations will ever be reclaimed by said contributors ; and
“ Whereas, the provisions of said act of incorporation have not been complied with, now, thou, for the purpose of relieving said board of trustees of responsibility, and of realizing, so far as practicable, tire spirit of said donation,
Sec. I. Be it enacted by the Senate and Souse of Representatives of the State of Louisiana, in General Assembly convened, That the Louisiana Board of Trustees of the American Printing House for the Blind be aud are hereby authorized and required to pay into the State Treasury, the aforesaid sum of two thousand dollars, with all accumulated interest thereon, donated by the State of Louisiana pursuant to Act No. 163, approved March 10th, 1860, and all such other sums as may have been donated or contributed pursuant to the provisions of the act of incorporation' of said Board and remain at present unclaimed by said contributors in the hands of said board, together with all accumulated interest on said sums.
“Sec. 2. Be it further enacted, etc., That the State Treasurer be and he is hereby authorized todemand and receipt for all sums of money, with accumulated interest, within the contemplation of the foregoing section, and that upon compliance with the provisions of said section the aforesaid Board of Trustees shall be released from all responsibility relative to any and all moneys thus paid into the State Treasury, aud forever guaranteed and protected against all loss or'damage growing out of or in any manner connected with such sum or siims of money thus paid into the State treasury, whether against the original contributors, their heirs or assigns, or any other person or persons whomsoever.
“Sec. 3. Be it further enacted, etc., That all moneys paid into the State treasury pursuant to the provisions of this act shall be and remain a special and inviolable fund for the sole and exclusive benefit of the Louisiana Institution for tbo Blind and the Industrial House for the Blind, domiciled at Baton Rouge in said State, and that said money shall be paid over by the State Treasurer to the Board of Trustees of said Louisiana Institution for the Bliud and Industrial House for the Blind, whenever demanded by said Board on the warrant of the treasurer thereof, countersigned by the vice president of said board.
“Sec. 4. Be it further enacted, etc., That in case any sum or sums, with accumulated interest, to ho as aforesaid paid into the State treasury should be hereafter claimed by any of the contributors of said sums, or others, upon making due proof ■ of said claims before any court of competent jurisdiction and obtaining judg?nent therefor, upon presentation of a duly authenticated copy of said judgment, the State Treasurer shall pay the same out of any money in the treasury not otherwise appropriated.
“Sec. 5. Be it further enacted, etc.. That all laws and parts of laws in conflict witii this act be and the same are hereby repealed.
“Sec. (1. Be it further enacted, etc., That this act shall take effect from and after its passage.
“ Approved May 14, 1878.”

Numerous objections ate made to this Act. It is charged to he unconstitutional because it does not express its objects in its title, hut surely it is not necessary at this late day to say that the title of an Act need not he a synopsis of its contents. Tt is sufficient if it iudicate the general object or purpose of the law without specifying each provision made therein.

It is said also that it invades the judicial department of the government and assumes to And certain facts and to declare the legal consequences flowing therefrom. The preamble is justly liable to this objection, but in so far as it declares a forfeiture of the plaintiff’s charter and assumes that the donors wlio have not already reclaimed tlieir donations will never do so, and because, of this assumption proceeds to take possession of the whole fund, the Act goes beyond legislative power and to that extent is null. As was said in Perry v. Coms. Clinton & Port Hudson R. Co., XI Rob. 414, the legislature has no right, having enacted laws providing what infractions of obligations of corporations shall produce forfeiture of their chartered privileges, to try a particular case, decide it, and execute its own decree.

As to the denial of the authority of the State Treasurer to sue for the donation made by the State, it is competent for the legislature, to confer that power upon him, and the authority to “demand and receipt for” snob donation includes the authority to demand ic judicially and give receipt for it in her name—in other words to stand in judgment for the State.

The power and the right of the donors to reclaim their contribution has been admitted by the plaintiff. Such admission is contained in the payment to those, who participated in these proceedings by opposing the plaintiff’s account, the sums agreed to be received iu full of their demands. There were over two hundred ol them. The State has an equal right to reclaim her donation of two thousand dollars which ve shall allow without taking into account the foe ( $200 ) paid by the plaintiff for getting it out of the Treasury, and shall reckon the interest from the date of the Act instead of the earlier period of the receipt of the donation or the later one of judicial demand. And this is the full extent of the State’s demand to which we can listen.

The attempt to confiscate moneys that are not hers by ordering the payment of them into her Treasury on the pretence of relieving the Trustees of responsibility which they have not asked is a stretch of legislative power that no Court can sanction under our system of government. The fund has been nursed by the Trustees with unexampled care and scrupulous fidelity. Its accumulation commenced in 1860, it survived the perilous war-time, survived that more perilous time, the decade that followed the war, when fortunes were engulphed and public funds withered, and to-day is more than double the original sum. When the State orders the Trustees to pay the whole with its accumulated compounded interest into her Treasury, at the same moment announcing her purpose to give it to another institution, she gives another example of the ease with which one can be generous with the money of others. She cannot appropriate the money of others to her own use. She can only reclaim that which she gave on the non-fulfillment of the condition upon which she gave it. Montpelier Academy vs. George, 14 La. 395.

The case is not assimilated to that in which the State enacts that the curator of a vacant estate shall pay into her Treasury the funds in his hands, for of that estate she is the ultimate heir.

lij is not for us to say what is to become of the fund now in the hands of the plaintiff. We may adopt the language of the Supreme Court of the United States in reference to it;—“the .Louisiana board by virtue of their distinct organization, their separate position, the local character of their operations, and their just expectations of a special benefit to the blind of their State, not only had a right but were under an obligation to take due care that the institution to which their fund should be entrusted was such an institution in its objects and constitution as was contemplated when the scheme was undertaken and entered into and not one materially different therefrom in other respects.” Printing House v. Trustees, 104 U. S. Rep. 724.

It is therefore ordered and decreed that the judgment of the lower court is reversed, and that the Treasurer of the State have aud recover of the plaintiff two thousand dollars with live per cent per annum interest from May 14, 1878 and the costs of his opposition in both courts, and that the opposition of the Institution for the Blind at Baton Rouge is dismissed at its costs.

On Application por Rehearing.

The cost of appeal was thrown on the plaintiff by our decree. It was an inadvertan.ee and needs correction which may be made without a rehearing, which is refused.

It is ordered and decreed that the plaintiff have and recover of the opponents the cost of appeal, and with this alteration that our former j udgment stand.


text:
    No. 9392.
    Mrs. E. J. Ralston and Husband vs. British & American Mortgage Company (Limited).
    An order of seizure and sale in a proceeding via ejecutiva, on a mortgage importing confession of judgment, is a judgment, and, after its rendition, such proceeding is not removable from the State to the "Federal court. So. an action brought by the defendant to restrain the execution of such judgment, is auxiliary to the proceeding and is not removable
    Boudurant vs. Watson, L03 U. S. 287, only applies to injunction suits to restrain execution of State court judgments, when brought by persons not parties to such judgments,
    A PPEAL from the Ninth District Court, Parish of Tensas. J. A. Hough, J.

      Wade B. Young for Plaintiffs and Appellants.

      Steele & Garrett for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The motion to dismiss presents the same points urged in the case of Sachse vs. Citizens’ Bank, just decided, and for the reasons there given, is overruled.

Merits.

The appeal is taken from an order removing the cause to the Federal Court.

The defendant, an alien, proceeding against the plaintiffs on a mortgage act importing confession of judgment, obtained a decree or order of seizure and sale. The plaintiffs filed the instant suit for injunction restraining the execution of said decree. Then, alleging their own citizenship of Louisiana and the alienage of defendant, they apply for the removal under the Act of 1875. The order granting the removal was clearly error.

This Court has held that the order of seizure and sale “ was a final judgment exhausting the power of the court quoad the application, and leaving nothing to be decided and no contest or issue between the parties,” and that, after such order, the executory proceeding was not removable. Meaux vs. Pittman, 31 Ann. 405.

The injunction proceeding to restrain the execution of such a judgment is merely auxiliary, when brought by the defendants in such a judgment. The Supreme Court of the United States has held that an injunction proceeding to restrain the execution of a judgment of a State Court brought by one, not a party to the judgment, was removable, but the reasons assigned are thus given: “The injunction had its origin in the judgment, but it was a new and independent suit between other parties and upon new issues. It was a suit in which the plaintiff sought to be protected against a judgment to which he was not a party, by which his property had been specifically condemned to satisfy a claim against others and not against him, * * * It could not be called incidental or auxiliary to the original case. It was a new and independent controversy between other irarties.” Bondurant vs. Watson, 103 U. S. 287.

Upon the principle of inelusio unius, exclusio alterius, the stress laid upon the fact that the plaintiff in injunction was not a party to the judgment, powerfully indicates that, if he had been a party, tiro decision would have been different. Believing such inference to be, not only justified by the language of the Supreme Court, but thoroughly sound in principle, we shall enforce it.

It is, therefore, ordered, adjudged, and decreed, that the order of removal appealed from be annulled and set aside; and it is now ordered, adjudged, and decreed, that the petition of plaintiffs herein praying for removal of this cause to the Federal Court be rejected at cost of appellees in both courts. '


text:
    No. 9329.
    Gervais Lèche vs. Police Jury of Jefferson Parish et al.
    An injunction is not the appropriate remedy to prevent a-jjoliee jury from employing an attorney in itn suit, even where the law provides that the district attorney shall represent it in such suits—the less so, who e the latter claims for himself exclusively the salary allowed to the employed attorney, who is not made a party to the action.
    APPEAL from tlio Twenty-sixth District Court, Paiish of Jefferson. Halm, J,

      A. B. Billings for Plaintiff and Appellee.

      8. 8. Carlisle and J. JD. Coleman for Defendants and Appellants.
   The ppinion of the Court was delivered by

Bermudez, C. J.

This action is brought by the plaintiff as district attorney of the Twenty-sixth Judicial District, composed of the parishes of Jefferson, St. John the Baptist and St, Charles, to prevent the police jury of the first parish, from employing and paying S. S. Carlisle, Esq., as the attorney of their body, and to decree the ordinances or resolutions, under which he was employed, null and void, and to recognize him the plaintiff as the legal representative of said police jury and entitled to the emoluments provided by law for services rendered said jury by Mm (Carlisle).

The police jury appeared, excepting to plaintiff’s right of action to claim either a provisional or perpetual injunction, or .final judgment, and under reserve of such exceptions, pleaded the general issue, made certain admissions and specifically averred its right to employ and pay counsel.

The exceptions were overruled, and on the merits judgment was rendered in favor of plaintiff, from which the police jury appeals.

The clear object of tbe suit is, to have the plaintiff recognized as the only attorney authorized to represent the police jury in its legal and judicial matters, to the exclusion therefore of S. S. Carlisle, who is not made a party to this suit, and as a corrollary, to have the jury prevented from employing and paying said attorney for services rendered.

The plaintiff does not aver in what particular tbe employment and payment of Carlisle, as such attorney, has affected or may affect him. There is no allegation that the salary or fees to be paid Carlisle, is proposed to be drawn from tbe salary to which the plaintiff may he by law entitled, and that he will be injured thereby.

If it be true that tbe police jury refuses to allow plaintiff to represent it in legal proceedings and has in violation of a constitutional prohibition, employed S. S. Carlisle, Esq., who lias usurped tlie functions of the plaintiff, as district attorney, the remedy would not be an injunction against the police jury, but, some well known proceeding either against the police jury or against Carlisle or both.

It has been held that where the charter of a city provides that its solicitor shall represent it in all suits, in which its property or rights are involved—an injunction will not be allowed for the purpose of preventing the city council from employing another attorney in its suits, the remedy by injunction is not appropriate to such case. High on Inj. vol. 2, p. 833, § 1267; Tl>. on Ex. Leg. Rem. p. 449, § 619, and authorities in notes; also, 27 Ann. 446; 29 Ann. 271; 30 Ann. 660.

As plaintiff has shown no cause of action for the main relief, it clearly results that he was not entitled to the preliminary injunction asked and obtained.

Without moving for a dismissal of the appeal, the appellee suggests that the case is unappealable.

The plaintiff himself makes the case an appealable one, by claiming to be entitled to the amount to which Carlisle would be entitled eventually, which is in excess of i wo thousand dollars.

The exceptions should not have been overruled.

It is therefore ordered and decreed, that the judgment appealed from he reversed. It is now ordered and adjudged that the injunction issued he dissolved; that the exceptions filed be sustained, and that the suit be dismissed at tho cost of plaintiff and appellee in both courts. _____


author: Poci-iic, J.

text:
    No. 9376.
    The State of Louisiana ex rel. Board of Health vs. E. A. Burke, Treasurer.
    The provisions of Avticle 178 of tho Constitution directing- that: “ The General Assembly shall i: provide for the establishment and maintenance of a State Board of Health,” do not make it the imperative duly of the legislature to thus provide by means of appropriations from the State treasury
    The authority for such appropriations rna\ be traced thereto, hut it is morely permissive and not mandatory.
    Henoe, the-warrants issued to Board of Health, under the Act 52 of 1884, are not strictly constitutional warrants, and are not entitled to preference of payment out of the General fund.
    APPEAL fi-om the Seventeenth District Court, Parish of East Baton Rouge. Tkt/rgess, J.

      .F. G. Zarharie for Relator and Appellant.
    71/. J. Gwnningham, Attorney General, for Defendant and Appellee.
   The opinion of the Court was delivered by

Poci-iic, J.

Relators, holders of warrants issued under the provisions of Act No. 52 of 1884, claim preference for their payment as constitutional warrants, second to warrants issued in favor of constitutional officers, whose salaries are fixed by the Constitution, and concurrently with warrants issued in favor of the University of Louisiana, of the University for the education of persons of color, and of the Mechanical and Agricultural College.

They are appellants from an adverse judgment.

The theory of preference among warrants drawn against the treasury of this State, finds its sanction in the very essence of a Constitution which has limited the power of legislative taxation. While the tax limit is strictly defined, the same certainty could not he applied to the limit of appropriation. From the very nature of things, full discretion was left to the legislature, touching innumerable and unforeseen subjects of State aid, and of legislative appropriations. The very reason, which justified the propriety aud the wisdom of a constitutional limitation to taxation, suggests the possibility and even the probability of an excess of appropriations, necessarily unlimited by the Constitution, over the State revenue depending upon a rate of taxation, restricted within constitutional limits.

Dealing with these principles, actually illustrated by facts and experience, and understanding that the Constitution must first he obeyed aud enforced, we recognized the inevitable doctrine of a preference of a certain class of warrants over others, all issued under the same legislative provisions, in our decision in the case of the State ex rel. Collens vs. Burke, Treasurer, 32 Ann. 1213. Applying the same rule and expounding the same doctrine, we subsequently held that, as warrants in favor of constitutional officers, whose salaries are fixed by tlie Constitution, should bold the first rank, it followed as a logical, as well as a legal, consequence, that next to them should come other warrants issued under a direct mandate of the Constitution, and that the latter class of warrants should be allowed superiority of rank, out of the same fund, over all other warrants which cannot be traced to a like direct constitutional source. State ex rel. Administrators of the University of Louisiana vs. E. A. Burke, Treasurer, 35 Ann, 457.

The question presented in this controversy, involves the classification of relator’s warrants in one of tlie two categories of warrants herein-above last described.

If the Constitution has made it the imperative duty of the legislature to appropriate money from the State treasury for the purposes of the Board of Health generally or as enumerated or provided for in the appropriation for its benefit, in the Act 52 of 1884—our plain and inevitable duty will be to recognize and to enforce the preference which relators claim.

Relators trace the constitutional character of their warrants to the provisions of Article 178 of the Constitution, which ordains, that the General Assembly shall provide * s * for the establishment and maintenance of a State Board of Health.”

The language of the appropriation under which relators’ warrants were issued is as follows: “ For the Board of Health óf the State of Louisiana, to be used in purchasing the necessary mechanical apparatus, for improving the system of disinfection of vessels, preventive of introduction of fever, and the erection of the necessary buildings and the establishment of a lower quarantine * * * for the year 1884, fifteen thousand dollars; for the year 1885, fifteen thousand dollars',”

From the mere reading of the provision, it is at once apparent that the object of the appropriation is not for the establishment and maintenance of a State Board of Health. But the clearly avowed object of the appropriation is to increase the means or facilities for the accomplishment of certain specified ends, by an institution already established, and whose maintenance is provided for through and by means of other resources outside and independently of that particular appropriation.

It is easy to read through the language of the section, that the legislative aid intended thereby, had no reference to the constitutional recommendation contained in Article 178, but, that it was simply prompted by the laudable desire of enhancing the usefulness of the Board of Health, and that its constitutional source was understood to be found in the general and discretionary power of the legislature on the subject of taxation and appropriation.

Our conclusion is, therefore, that, conceding the language of Article 178 to be liable to the construction of an imperative mandate to the legislature to provide for the establishment and maintenance of a State Board of Health, by appropriation of funds from the State treaswy, it is not at all apparent or even probable that the appropriation now under discussion entered into the legislative mind, as an'act adopted in obedience to, or in furtherance of, such constitutional mandate, or that it had the remotest connection therewith. And this is the essential condition of the relief which relators now crave at the hands of the courts.

But a proper construction of Article 178 is absolutely inconsistent with tbe idea of its cóntaining an imperative mandate to the legislature, for the maintenance of a Board of Health, by appropriations from the State Treasury.

There are many modes, both constitutional and legal, for the establishment and maintenance of State institutions besides a direct recourse to the State Treasury. Indeed, past experience and the legislation which has.prevailed on this identical subject between the years 1879 and 1884 pointedly suggest other and very efficient modes to accomplish the same end.

We must take judicial cognizance of the legislation of the State, and we find that in the session of 1880, the extra session of 1881, and the session of 1882, no appropriation was made by the legislature for the Board of Health, and we are thus afforded a precedent of legislative construction of the true meaning of Article 178, and that construction is more than confirmed by the language used in the section containing the appropriation made at the session of 1884.

Of course, it never entered the mind of the Attorney General to contend or in ours even to intimate that there is no constitutional authority for the appropriation which we are now considering. It has ample constitutional andlegal justification, both in the inherent powers of the General Assembly, and in the special power conferred by the article; hence it is perfectly legal and binding on the treasurer; but this does not confer the preference claimed for relators’ warrants. Our meaning is simply that the authority of the General Assembly which derives from the article is permissive and not mandatory.

Of the latter character are the constitutional requirements which we were called on to consider in the cases- of Collens and of the University of Louisiana.

Prom the foregoing considerations, naturally flows the conclusion that relators’ warrants are not entitled to the preference which is claimed for them, and that relators are not entitled to the writ which they seek to obtain.

We have considered, and we duly appreciate, the very able and in-, genious argument of their zealous counsel, and we are fully impressed with the great usefulness of the Board of Health, as one of the most important State functionaries, and we are free to concede that in a discussion for the adoption of a constitutional provision intended to give to their warrants the rank which is now claimed, the argument of counsel would be unanswerable and irresistible. But such is not our mission, and our power is restricted to expound, and cannot be extended to enlarge, the Constitution.

The same consideration dictates our answer to the State Treasurer, as to his suggestion of the wisdom or necessity of an adjudication establishing, at this time, a correct classification of all warrants which are drawn against the general fund. Our authority must be confined to the issue presented in this case; and all our utterances on other rights or questions not necessarily involved in the case at hand, would be mere suggestions and idle recommendations binding on no one.

We are asked to judicially enforce an alleged preference in favor of relators’ warrants; we find no constitutional ground for such a preference ; in refusing the relief prayed for we have disposed of the only issue which was presented to us and we have thus exhausted our whole power in the premises.

Judgment affirmed.

Rehearing refused.


text:
    No. 9378.
    The State of Louisiana vs. Joshua Williams.
    The forfeiture of an appearaee bond is a proceeding in a criminal case, and tlie appeal from tlie judgment of forfeiture is not to be tested by tlie rule applicable to civil actions.
    Whenever the offence charged in the indictment is of a grade that gives us jurisdiction because one of the jurisdictional punishments may be inflicted, that fact attracts jurisdiction to the appearance bond that was given in that criminal proceeding. The test of our jurisdiction is not the amount of the bond but the grade of the offence charged.
    The forfeiture of an appearance bond given without authority will be set aside.
    The object of an appearance bond is to secure the trial of the offender rather than to fill the coffers of the Treasury, and therefore when after forfeiture the sureties bring the offender into open court during the term when the bond was forfeited, the judgment of forfeiture should be set aside, provided there is no collusion or deceit or fraud practiced or attempted to be put upon the court.
    APPEAL from tbe Seventeenth. District Court, Parish of East Baton Rouge. Gross, Special Judge.

      M. J. Ounnmgham, Attorney General and G. G. Bird, District Attorney, for Plaintiff and Appellee.

      Bouse & Grant, contra.

   The opinion of the Court was delivered by

Manning, J.

This appeal is from a judgment of forfeiture of an appearance bond, and a motion to dismiss is made for want of jurisdiction.

Joshua Williams, having been arrested on a charge of murder, was held to bail ( by what authority does not appear ) in the sum of three hundred dollars for which he gave bond with Henry Schorten and Charles Williams as sureties. Upou the meeting of court an information was filed charging him with assault with a dangerous weapon with intent to commit murder, and an order was entered that the sheriff take bond for the defendant’s appearance in the sum of three hundred dollars. None was taken.

The defendant was tried and the jury failed to agree. There were several continuances at subsequent terms. Finally at the autumn term 1884, the defendant was called and failing to appear, his bond was forfeited. Later in the same term his sureties produced him in ojien court and moved to set aside the judgment of forfeiture which was refused and they have appealed.

The ground of the motion to dismiss is that the sum is below our jurisdiction, but it is not maintainable.

The forfeiture of an appearance bond is a criminal proceeding and the appeal from the judgment of forfeiture is not to be tested by the rule applicable to civil actions. State v. Cassidy, 7 Ann. 276.

In criminal eases our jurisdiction comprehends only those where the punishment of death or imprisonment at hard labour may be inflicted or a fine exceeding three hundred dollars is actually imposed. Yet it is well settled that we have jurisdiction when the indictment for those offences has been quashed. The State may appeal therefrom although no punishment has been awarded and no fine imposed. State v. Ellis, 12 Ann. 390.

So where the punishment awarded is neither death nor imprisonment at hard labour but of a grade whereof we have not jurisdiction, yet if the offence charged be one for which either of those punishments may be inflicted, we have jurisdiction. State v. Charles, 14 Ann. 650.

Now the. offence with which the defendant is charged is one that gives us jurisdiction because one of the jurisdictional punishments may be inflicted on him, and that fact attracts jurisdiction to the appearance bond that was given in that criminal proceeding. The test of our jurisdiction in such case is not the amount of the bond, but the fact that an offence is charged for the commission of which the punishment of death or imprisonment at hard labour may be inflicted, or a fine exceeding three hundred dollars is actually imposed.

The motion to dismiss is therefore denied.

On the Merits.

The judgment of forfeiture cannot stand. The bond was given apparently without authority. It states on its face that it is given to answer a charge of murder and bears date of the time of arrest, January 1882. The bond that was ordered to be given at the March term 1882, when the information for assault with intent to murder was filed, was never given. It is not the bond that was required by the court. Tt antedates the time of filing the information and the order permitting and prescribing the bond.

There is another reason why it cannot stand. The sureties brought the accused in open court and offered him for trial. The object of an appearance- bond is to secure the trial of offenders rather than to fill the State coffers by forced contributions from sureties. That object was attainable through and by the action of the sureties in producing the body of the offender at the term when he was called. Where there is no collusion nor suspicion of collusion to defeat the ends of justice, sureties have been always relieved from a judgment of forfeiture when they have produced their principal and surrendered him into the custody of the law. That should have been done in the present case.

Judgment reversed.


text:
    No. 9386.
    Alex. Cohn (T. C. Sachse, Assignee,) vs. Canal Bank.
    notion to dismiss denied, and judgment reversed for tlie reasons given in Saclise vs. Oifci/ens’ Bank.
    áPPEAL from the Ninth District Court, Parish of Tensas. . Young, J.

      Wade 7Í. Young smA Farrar & Kruttsehnidtt for Plaintiff and Appellee.

      Miller & Finney and Steele & Garrett for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

A motion to dismiss is filed in this case, based on the same grounds as those presented in the case of Sachse vs. Citizens’ Bank just decided. For the reasons there given, it is denied.

On The Merits.

This is an appeal from, an order removing the canse to the Federal Court, and presents all the features detailed in the case of Sachse vs. Citizens’ Bank just decided, with the additional one, that the injunction here was originally taken out on the petition of A. Cohn, the defendant in the executory proceeding, and a resident of this State; that the assignment to Sachse for the benefit of creditors was subsequently made; that Sachse appears in the cause as a substituted plaintiff, and in that capacity petitions for the removal. All the reasons given for reversing the order in the Citizens’ Bank case, apply with greater force to this, with the additional one, that no assignment made during the pendency of the suit could confer on Sachse rights which the original party did not possess.

It is, therefore, ordered, adjudged and decreed that the order appealed from be annulled and set aside, and it is now adjudged and decreed that tiie xietition of plaintiff, praying for removal of this cause to the Federal Court, be rejected at appellee’s cost in both courts.


author: Bermudez, C. J. Poci-ié, J.

text:
    No. 9351.
    Charles Vial vs. John G. Moll et al.
    la the absence of a specific averment of error, fraud, ambiguity, or the like, oral testimony is inadmissible to contradict, vary, restrict, or enlarge an authentic act. In the absence of an averment that time was granted since the date of such act and in the face of one to the effect that time was agreed to, previous thereto, oral testimony cannot be received.
    X
    t is especially inadmissible to show that the consideration of a mortgage given to secure the payment of a note issued for value received in advances made, and which is acknowledged in the act as an indebtedness—was not the consideration of the act; but that the consideration was the granting of time for the payment of the mortgager’s debt, and the promise of the mortgagee to furnish supplies to work the mortgaged land.
    Want of consideration is not one of the causes for which an injunction can be obtained without bond, under Art. 739, G. P.
    Objections to the legality of the issuance of such injunction without bond, can be formulated, either in a rule to dissolve, or in an exception, and urged at the time of offering the oral testimony, on the trial of the rule or exception.
    An answer filed under reserve of such exception cannot be considered as a waiver of the preliminary defense. It joins issue on the merits only, if the exception is overruled.
    In the absence of legal proof in support of the averments, a judgment of non suit is. the proper one to be rendered.

      A PPEAL from the Twenty-Sixth District Court, Parish of St. John ^ 1 the-Baptist. Wahn, J.

      James Legendre, Francis B. Lee, and St M. Bérauli for Plaintiff and Appellant.

      L. DePoorter for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff' appeals from a judgment of non suit dissolving- an injunction taken by him, without bond, against executory process issued on three notes of his, against property said to have been mortgaged to secure their payment.

The substantial averments of his petition are: that one of the two notes, older in date, was issued without consideration and that the last note issued, thirdly described in the petition, was uttered and secured by mortgage, on a promise of the holder of the two notes to grant time for the. payment of the debt, and to make advances for the, cultivation of the land mortgaged to secure the notes.

The injunction was asked and was granted' without bond.

Shortly after, the plaintiff in executory process, charging that the injunction had illegally issued without bond, and that the allegations of the petition were false, took a rule for the dissolution of the writ.

On the day of trial of the rule, the mover therein died an exception to the right of the mortgager to an injunction without bond, and, under reserve of this exception, pleaded the general issue, averring, however, his claim and mortgage.

The exception was overruled. Plaintiff in injunction then offered oral testimony in support of his averment. On objection, the testimony was ruled out and bills were reserved.

The testimony was offered to show :

1. That one of the two notes older in date had issued without consideration.

2. That the consideration of the last described note, was an extension of time; and

3. That the consideration of the mortgage was a promise to furnish supplies, the complaint being- that, in violation of the understanding between the parties, neither was the time granted, nor the supplies furnished.

Objection was made to the admission of this testimony to establish want of consideration of the note first mentioned, on the ground that, even if the fact were true, it did not authorize an injunction without bond, and that this defense was in conflict with, and waived by, subsequent averments of the petition, which admits the validity of the debt evidenced by that note, and is based on an agreement alleged to have been made anterior to the date of the mortgage act.

Objection was also made to the hearing of oral proof to support the second and third grounds of complaint in the injunction, on the ground that it would contradict, vary, or enlarge the authentic act, in which the consideration of the note and of the mortgage is, without the least ambiguity, expressly declared to be the indebtedness of the drawer and mortgager for value received in advances for the previous year.

The plaintiff in injunction contends that the objections should have been made, either in a rule to dissolve, or by objection, at the time of trial, to the reception of the testimony.

This is precisely what was done by the defendant in injunction. He not only took the rule, but also objected when the offers were made, to the reception of the oral testimony. He, besides, filed an exception, which, like the rule, objects to the legality of the injunction without bond. He has further eventually put the averments of the petition at issue by denying them. We are, therefore, at a loss to perceive the force of the contention, even if the proposition advanced bo a correct-one.

After creditably admitting here that he had no right to inject into his petition for an injunction, without bond, a ground (want of consideration) not enumerated among those specified in Art. 739, (J. P., which authorize an injunction without security; and that the ruling excluding testimony to establish it is correct, the plaintiff in injunction insists nevertheless, that he had a right to introduce the oral proof, to show that the consideration of the third note and of the mortgage securing it was not only money, but also time and supplies.

His counsel refers the court to several authorities.with a view to establish that oral testimony has been judicially allowed, to show facts at variance with declarations made in authentic acts, in kindred instances. The rulings invoked were made, either in cases in which the. act was silent on the question of consideration, or in cases in which error, fraud, ambiguity, or some other cause bad been alleged, or in which third parties were the movers. They surely do not apply to suits in which such features are not prevented—which is the case in the instant controversy.

Oil the trial, a question was put to a witness to ascertain whether the mortgagee had, ai am/ time, granted time for the payment of the debt; but, on objection, the question was not allowed to be answered.

Thp reason for this ruling was, that the averments of the petition showed that the promise, if any was ever made, was anterior to the date of execution of the last act of mortgage which distinctly states that the consideration of the mortgage was the indebtedness of the mortgager as evidenced by the note last described, and which had been issued for value received in advances of the previous year.

Had a vitiating charge been made, or one alleging an ambiguity in the act, over even that since the execution of the mortgage last consented, time liad been granted, a different case would have been presented.

The portion of the article-of the Code of Practice (739) which provides that the debtor can arrest the sale, where time has been granted to him, although this circumstance he not mentioned in the contract, can havé no reference to time granted before, and can only mean time granted after the date of the contract. It allows this defense, although no'provision was made in the contract, for the obvious reason, that the granting of time was a new contract subsequently entered into, of which proof is admissible, notwithstanding what may he contained in Article 2276 of the R. C. C. which prohibits the admission of parol evidence, not only against or beyond what is contained in the act, nor ou what may have been said before, or at the time of making them, or since.

The oral testimony offered was evidently desigued, if not to contradict, at least to vary and enlarge the declarations of the authentic act, touching the consideration of the mortgage given.

If it was not tendered to add to, or take from, the act, what was it offered for? It clearly had not for its sole object, if that, to confirm the declarations of the act, for that would have been a superfluity possibly injurious to the debtor. It was palpably intended to inject into the act ■what is not found in its context, and what is claimed should have been incorporated into it.

Confronted with the express declaration of what the consideration of the notes and of the mortgage was, and in the abseuce of any averment justifying an inquiry behind the act into anterior or contemporaneous matters, or to establish a new contract for delay in payment, subsequent thereto, we think the testimony was properly ruled out. The act is at least prima facie binding on the parties, and its effect must conclude them, unless it be destroyed or impaired by written ev ifieuce or by testimony admitted, under a vitiating special averment as already stated, or under a different statement of rights.

It is needless to indulge into any extended argument or quote specifically many authorities in support of such plain proposition of law. A general reference to fountain heads is all that is required. R. C. C. 2276; C. P.,739; Hen. Dig. 534, 536, 538, 540; Lou. Dig. 251; Greenleaf vol. 1, secs. 275, 277, 281, 283.

By this litigation, which was inaugurated on February 29, 1884, the plaintiff has reaped the benefit of the contract which he says had been agreed to, viz: tkne, in other words, a suspension of the sale of his property, until the end of the year 1884, which has now fully gone by.

Judgment affirmed.

Rehearing refused.

Dissenting Opinion.

Poci-ié, J.

My conception of the true issue involved in this case compels me to differ from the conclusions announced by my associates.

Under my views of the controversy, its pivotal point involves the right of a defendant in an executory process to prove by parol testimony that time had been granted to him for paying the debt for which his property has been seized. The debt in execution in this case is represented by two notes dated June 28, 1882, and by another note dated January 26, 1884, all these being past duo on their face when the seizure was made.

The latter note was secured by mortgage under date of February 5, 1884, wituout novation of the original tenor of the note. The act of mortgage did not, therefore, stipulate another or a different date of the contract which created the debt.

Now it is conceded that parol testimony would bo admissible to show an agreement to extend the maturity of an obligation, if made since the execution of the contract which evidences the obligation.

It follows, therefore, that if the executory process had issued on the notes and mortgage of June, 1882, exclusively, it would have been competent for the debtor to show by parol testimony the consent of his creditor granted in January, 1884, to allow him an additional time for the payment of the debt.

The indebtedness of Vial on the note of January 26, 1884, did not spring from the act of mortgage of the 5th of February following, but it was created by the note itself, which is the principal obligation, to which the mortgage subsequently granted was a mere security or accessory. The act of mortgage contained no mention of the maturity of the obligation, as a consideration or stipulation of the act itself; it merely recited 'the date of the execution and of the maturity of the note as fixed by a previous and separate contract. It appears clearly from the allegations of Vial’s petition of injunction, that the agreement for extension of the maturity of his entire debt to Moll was made between the 26th of January and the 5th of February, 1884-, as the act of the latter date is alleged to be the result of the agreement in question.

It therefore follows that the alleged consent to grant additional time for the payment of the debt, was not made previously, but subsequently to the act which created the obligation between the parties.

The agreement or contract for the extension of time was, therefore, no part or element of the act of mortgage, but it was entirely and absolutely distinct and separate therefrom.

The act of mortgage was intended to secure the note as it stood at the time. From the moment that the agreement was carried into effect by the execution of the mortgage, the. status of the note was fixed, and the projected renewal thereof was effected. To prove that renewal, and that of the two previous notes was the real and only object of the testimony offered by plaintiff.

What then becomes of the argument that the proffered oral testimony was intended or is calculated in its effects to vary or contradict the act of mortgage1? That testimony would not and could not impair or affect the security which the parties contemplated to result from the act of mortgage which, as to maturity, would merely follow the fate of the note which it secured. The contract which would be affected by that testimony was the note itself, and not the subsequent act of mortgage.

The silence of the act of mortgage on the subject of the new contract which the debtor sought to prove by parol.evidence, cannot avail against the debtor.

Art. 739, Code of Practice, provides th-.t the debtor can arrest the sale of the thing seized by alleging:

4. That time has been granted to him for paying the debt, although this eircumstcmce he not mentioned in the contract.”

Plaintiff has not weakened his case, or impaired his legal right to resort to parol testimony to show that he had been granted time, by alleging Hie consideration of that agreement, which was to grant a mortgage as security on his unsecured note which his creditor held. That consideration was quite reasonable and equally legal. It is always competent for a party to a written contract to show by parol testimony the real cause of the contract when the same is not expressed or described therein. Jackson vs. Muller, 32 Ann. 432; Cole, adm. vs. James Smith, 29 Ann. 551; Saramia vs. Comp., 13 Ann. 25; Falcon vs. Boucherville, 3 Rob. 337 ; Cain vs. Pullen, 34 Ann. 511.

In my opinion, the testimony offered was admissible, and there is error in the judgment which excludes it.


author: Poché, J.

text:
    No. 9399.
    Mrs. C. H. Gibson and Husband vs. Bennett Hitchcock et al. and Mrs. C. F. Hitchcock et al. vs. John McKin et al. (Consolidated.)
    A married woman duly authorized to contract by a competent judge, under Art. 127 Civil Code, cannot contradict her own declarations and the recital in the judge’s certificate, in the absence of allegations of fraud against the creditor, or of fraud committed to his knowledge. But evidence under an issue without the required allegations, admitted Without objection, will be considered—and the pleadings being thus enlarged, will open the door to the investigation of the real consideration of the contract sought to he onforced against a married woman. If the evidence shows that the contract was not based on the objects stated in the judge’s certificate, but for a different object to the ■knowledge of the creditor, the burden of proof that the contract enured to the benefit of the wife is thus shifted on the creditor seeking to enforce the contract
    A judge of a parish court under the Constitution of 1868, was absolutely without power to authorize a married woman to contract a debt exceeding five hundred dollars, even when acting in the absence or place of the district judge on an application addressed to the latter.
    In order to give validity to a contract by a married woman for the ostensible purpose of talcing her husband out oí jail, the evidence must show that the husband was actually incarcerated, and that he was liberated through the means of his wife’s contract, either by sale of property or loan of money.
    It is not sufficient to show that he was threatened with a criminal prosecution which was averted by means of his wife’s contrac!..
    A tax sale of property sold at a previous tax sale, which is itself shown to be null, can convey no title.
    V PPEAL from tlie Eighth District Court Parish of Concordia. / \ Young, J. -

      JDagg & Mason for the Appellants.

      Wade JR. Young for the Appellees.
   The opinion of the Court was delivered by

Poché, J.

The following are the salient facts in this complicated litigation.

In August, 1870, Mrs. C. II. Gibson, wife of J. S. Meng, separate in property by judgment from the husband, appeared in a notarial act by which she mortgaged her separate property, to secure a note of $1000, of that date, made to represent a loan which she had secured from Bennett Hitchcock. She had been authorized to make a loan of that amount by the district judge who had issued his certificate to that effect in conformity with the provisions of the Civil Code Arts. 127 etseq. The object of the loan as represented in her application to the judge and by the latter’s certificate, was to make the last payment on a certain house and lot which she owned in the town of Vidalia.

In March, 1872, a similar act was passed between the same parties, intended to secure a note of $1200 of the same date, representing a loan from the same lender. In that transaction she was authorized by the judge of the parish court, acting in the absence and place of the district judge to whom the application was addressed. In July, 1875, after a few payments on the original debt, Mrs. Gibson Meng renewed, by notarial act, the obligation to pay the balance of the debt which was represented by three promissory notes of $780.70 each, secured by mortgage on the same property which had been previously affected to secure the two original loans.

To that transaction she was authorized by the district judge.

In March, 1878, Hitchcock proceeded by executory process to enforce the payment of the three notes herein above described, whereupon Mrs. Gibson Meng enjoined his proceeding on the. grounds substantially as follows:

1. That the act of mortgage under date of July, 1875, was a renewal of those of August, 1870, and March, 1872, and has, therefore, no more binding force or effect than the latter.

2. That neither of said loans enured to her separate benefit or to that of her separate property.

3. That the authorization of the district judge to execute the mortgage of 1870 was null, because it purported to secure a debt already in existence, and was not intended to authorize her to contract a debt as contemplated by law.

4. That the judge, of the parish court had no legal authority to act in the absence and in the place of the district judge for the purpose of authorizing a loan exceeding five hundred dollars.

Pending tliis litigation Hitchcock died, and the proceedings have since been carried on contradictorily with his widow and his daughters his recognized legal representatives.

The issue thus tendered was met by defendants in ¡in answer which is practically a general denial, followed by a special averment of the validity of the mortgage executed by Mrs. Gibson Mong, plaintiff in injunction.

This appeal is taken by her from a judgment recognizing the validity and enforcing the execution of the mortgage.

It.is virtually conceded by appellees that the. binding force of the mortgage of July, 1875, now in execution, depends niton the validity of the two previous mortgages of August, 1870, and March, 1872.

1. Hi support of her allegations of the nullity of the first mortgage, plaintiff introduced a copy of her purchase of the property which was subsequently mortgaged, and other documentary evidence tending to show that she had acquired the property in March, 1870, and that the sale was for cash ; that, therefore, she owed no balance of payment ou the same, and she offered her own testimony and that of other witnesses, to rebut the presumption that the loan had enured to her separate benefit, flowing from the district judge’s certificate of authorization. The documentary evidence went in without objection. The parol testimony was resisted on the ground that she could not be allowed to attack or disprove her own solemn declarations made in her application to the judge, and the recital contained in his certificate. It is unfortunate for appellees that their counsel, in his objection, stated his proposition too broadly, as otherwise his bill should have been maintained. The rule on this question, as established in our jurisprudence, closes the door to the wife’s attack against a mortgage which she has executed with the authorization of the judge, in the absence of any allegation of fraud against the creditor himself, or of fraud committed at least to the knowledge of such creditor.

The judge did not, therefore, err in refusing to exclude the proffered testimony on the objection that the wife could not, in. any case, disprove the certificate of the judge and her own declarations. Jurisprudence has settled that in certain cases she can resort to that defense. Barth vs. Louisa Bond, Manning’s Unreported Cases, page 431; McLellan vs. Dane, 32 Ann. 1200; Stapleton vs. Butterfield, 34 Ann. 822. As the proper objection was not urged, tbe testimony was properly admitted, and the pleadings were thus enlarged sufficiently to justify an investigation into the real consideration of the contract.

But, in addition to that testimony which is of small moment, and to which we have attached little or no importance, we find documentary evidence, to which no objection was made, and which, shows beyond a doubt, that the money alleged to have been loaned to plaintiff was not and could not be used for the object described in her application for authorization to contract and in the judge’s certificate.

The authentic act of sale of the immovable propei ty, which was executed full six months previous to the act of mortgage, which had been legally put of record and to which reference is made in both acts of mortgage, shows conclusively that the property had been paid for in cash, and, that therefore, she could not use the money loaned by Hitchcock, for the payment of the balance due on her purchase.

Under this showing, the effect of the judge’s certificate is completely paralyzed and the burden of proving that the contract enured to the benefit of the wife is thus shifted on the creditor, who seeks to judicially enforce the same. Conrad and Husband vs. LeBlanc et al. 29 Ann. 24; Felman. vs. Stapleton, 24 Ann. 89.

Prom the documentary- evidence in the record, which was admitted without objection, it appears to our satisfaction that Hitchcock wa.s fully aware of the misrepresentations in the wife’s declaration and followed in the judge’s certificate. This places Mm within the rule of the excepted cases contained in our reports.

These conclusions, both of law and of fact, are virtually- conceded by appellee’s counsel, and his theory is that the money, which was the subject matter of the contract, was actually loaned to and used by-plaintiff in the construction of a dwelling house on the lot in question, which was vacant when she purchased it. His main reliance is on the testimony of the lamented Judge Spencer, one of our illustrious predecessors.

We have carefully considered Ms testimony, which amounts at most to the assertion that it was the witness’ impression that the money-borrowed was used to pay either for the lot or for the construction of the house now standing on it. It stands to reason that such testimony is glaringly insufficient to satisfy the. requirements of the law for affirmative and positive proof of the real consideration of a married woman’s contract.

Our conclusion is that defendants have utterly failed to prove that the loan of $1000 in August, 1870, was made to or enured to the benefit oi the plaintiff in injunction, Mrs. Gibson Meng.

2. Tills brings us to the secured mortgage, for $1200, executed in March, 1872.

The record shows that the authorization was given by the judge of the parish court, acting in the absence of the district judge.

Art. 127 of the Civil Code requires that the authorization must emanate from the judge of the district or parish according to the amount involved. It follows that in this case the exclusive power was vested in the district judge, hence the application was properly addressed to him, but it was improperly acted upon by the judge of the parish court. Section 2027 of the Revised Statutes of 1870 cantains a detailed enumeration of all the orders which judges of the parish courts were empowered to grant in the absence of district judges.

The power to examine married women under the provisions of Art. 127 of the Civil Code, is not included—it was therefore withheld, and it could not he exercised. Neil vs. Hibard, 30 Ann. 811, 493.

We therefore conclude, that the authorization, emanating from that officer in the present matter, was an absolute nullity. Hence the case stands as though the wife had not been authorized at all. The burden of proving that the consideration of the contract enured to plaintiff’s separate benefit is therefore on the defendants.

Their contention is that the money borrowed was used to screen plaintiff’s husband from a criminal prosecution, and practically to take him out of jail, and that the wife is hound under the provisions of Arts. 119 and 2361 of the Civil Code as expounded by this Court in Nuttby vs. Sheriff, 16 Ann. 337; and Saffa vs. Myers, 33 Ann. 408.

In both of those cases it appears that the husband was actually incarcerated under prosecution for heinous offenses, and that he was liberated through and by means of the contract of bis wife, which she attempted to repudiate.

In' the instant case, the record shows that Meng, the husband, was a defaulter as a collector of United States Internal Revenue, and that the criminal prosecution threatened therefor against him by his superior officer, was averted by means of a settlement made with the money loaned by Hitchcock. But it is not shown that lie was ever arrested, and much less incarcerated, on account of his criminal conduct.

Common decency and a proper sense of honor and honesty would, it seems to us, combine to prompt a dutiful wife to pay an indebtedness thus contracted, but to those who turn a deaf ear to those motives the law does not attempt to impose the obligation, and hence we are powerless to relieve the unfortunate creditor who has been deceived in bis confidence and betrayed in bis friendship.

Our article, 2361, which authorizes the sale of the wife’s immovables, under certain conditions, in order to liberate the husband from jail, has been taken from article 1558 of the Code of Napoleon—and hence our courts shoidd follow the construction placed thereon by the French tribunals.

It lias been uniformly held in France, that to justify the contract therein authorized, the husband must be actually incarcerated, and that the rule cannot apply in the case of a mere threat of imprisonment. Gilbert Code Annotés, p. 736; Troplong Droit Civil, vol. 4, p# 556 ; Marcadé, vol. 6, p. 70.

The proof on this branch of the case also fails, and this leaves the defendants without a case on their executory process. Hence the in-j unction sued out by plaintiff should have been perpetuated, and the judgment dissolving it is therefore erroneous.

The other case, which has been singu larly consolidated with the above suit, involves the validity of a tax-title to the same property to Bennett Hitchcock in 1877, under an offer of the property at a public sale, for the taxes of the years 1871, 1872, 1873, 1874, 1875 and 1876.

Pending the litigation which hereinabove occupied our attention, after the death of Hitchcock, the property was offered for sale, as the property of his succession for the unpaid taxes of the years 1877 and 1878, and it was adjudicated to John Macldn—Mrs. Hitchcock and her daughter claiming ownership under the tax-title of Hitchcock, and as mortgage creditors claimed the legal right of redeeming the property from Mackin, and to that end made him the tender of the amount of taxes, with penalties interests and costs which he had disbursed.

On his refusal they brought this suit for the purpose of compelling him to accept their tender with a view to a recovery of the property, and Mrs. Gibson Meng was made a party to the suit.

She answered denying the validity of the tax-sale, on grounds of defective assessment, including the nullity resulting from the assessment of the property in the name of her husband. Her answer was adopted by Mackin.

The district judge annulled Hitchcock’s title, but recognized the right of his legal representatives to redeem the property from Mackin, under his purchase at the tax-sale.

The record contains the following admission :

“It is admitted by counsel for C. F. Hitchcock et al. that the description of the property sold to Hitchcock for taxes of the years 1871, etc., as it appears on the assessment rolls, is too vague and indefinite to operate a conveyance of title or to serve as a basis of a valid title.”

Under that admission no other judgment could be rendered but one of nullity of Hitchcock’s title—and to that extent the judge is correct. But we are at a loss to conceive of the grounds on whicli.'he could possibly rest that portion of bis judgment which condemns Mackin to recouvey the title to Hitchcock’s representatives. The taxes which imderly Mackin’s purchase had been assessed against Hitchcock’s estate as owner. But as he liad no title, the adjudication could manifestly transfer none to Mackiu ; hence it is absolutely idle to comand him to recouvey the property to the Hitchcock succession. His tilte is “something nothing” and has no existence in law.

That part of the judgment is glaringly erroneous. It is, therefore, ordered that in so far as the judgment appealed from decrees the nullity of the tax-title set up bj' the Hitchcock succession to the property involved in this litigation, it be affirmed; and that in all othei' respects said judgment he annulled, avoided and reversed.

It is further ordered that the demand of E. C. Hitchcock et al. for the riglit of redeeming said property from John Mackin, be rejected, and their action dismissed. And it is further ordered that the injunction sued out against the executory process taken out by Hitchcock against the property of Caroline H. Gibson, wife of J. S. Meng, be perpetuated; and tire notes sued upon be decreed null-and the mortgages intended to secure the same be cancelled, annulled and erased. It is further ordered that the legal representatives of Bennett Hitchcock bo condemned to pay all costs in both cases in the lower court, and ou the present appeal; without prejudice to the right of said parties aud of Johu Mackiu to judicially enforce such claims as they may have for the recovery of the funds disbursed by them at their respective tax-sale adjudications.

Rehearing refused.