State ex rel. Murray vs. Judge.

Court was perhaps more at liberty to give effect to these articles of the Code of Practiee and it has been held that, in a proper case, where the requirements of the law had been complied with, the right to an injunction is absolute and the judge without discretion to refuse it-mandamus might be a proper remedy in a case clearly sufficient on the facts and where no question of law is involved.

It was there further said, that the context of Article 90 makes it clear that our revisory power should only be expressed through the medium of the stated writs; that the articles of the C. P. regulating them are broad enough to cover many cases which were excluded from the cognizance of the late Supreme Court, under the provision of the former Constitution, declaring that the Supreme Court shall have appellate jurisdiction only. Under the interpretation of that provision (Art. 90) it was held, that this Court is emancipated from the restraint and that it may issue said writs, in all cases covered by the provisions of the Code of Practice, both in appealable and unappealable cases, under a proper showing. See also 32 A. 555, etc.

So that, the articles of the Code of Practice, which had remained dormant -as it were, a dead letter-have since been vivified. They now are in full force and effect, assisting and guiding us in the administration of justice, in the exercise of our supervisory jurisdiction.

Referring to that Code, the wise provisions of which have long slumbered, we find it distinctly stated that the object of the writ of mandamus is to prevent a denial of justice; that the writ should, therefore, be issued where the law has assigned no relief by the ordinary means and where justice and reason require that some mode should exist of redressing a wrong, or an abuse of any nature whatever. It arises, says the Code, at the discretion of the court, even where a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay that the administration of justice may suffer from it. C. P. 830, 831.

In cases like the present one, in which an injunction was refused in limine, after hearing on a rule nisi, it has been held that an appeal lies; but it has never been decided that such an appeal, even if allowed as a suspensive one, would operate as the desired injunction whould have done, had it been granted. Indeed, it is hard, not to say impossible, to conceive how a suspensive appeal from a decree refusing an injunction can produce the effect of preventing the act which the injunction sought would have arrested had it been allowed.

State ex rel. Murray vs. Judge.

It would be highly dangerous to the administratio: of justice to give to an appeal from an order refusing an injunction, the effect of preventing the act which the injunction, if issued, would have arrested, for in all cases in which an injunction would be declined, even rightfully, lawful acts would be invariably suppressed. No doubt an appeal lies, but if termed suspensive, it is barren of effect in that

sense.

So that, if there be a remedy it is not an adequate one, and if a party entitled to an injunction is refused the same, he remains with a right but without a remedy-at the mercy of a district judge, unless this Court can interfere and relieve him from the effect of a denial of justice.

Where a clear case for an injunction is presented, it is the duty of the judge to grant the relief. He has then no more discretion to exercise than when seasonable application is made and a proper bond tendered for an appeal in an appealable case.

In such a case it is manifest that justice and reason require that some mode should exist of redressing at once the wrong or the abuse of power on the part of the district judge, even if there be other means of relief, or the slowness of ordinary legal forms would produce such a dely that the administration of justice may suffer from it.

On this branch of the case, we, therefore, conclude that this Court has jurisdiction to issue a mandamus to compel a district judge to allow an injunction in limine, whenever a proper state of facts is presented and all the requirements of the law have been complied with.

In such case, this Court may grant a restraining order which will operate provisionally as the injunction asked but declined, would have done had it been allowed.

II.

But it does not follow that, because this Court has such power to interpose its authority in cases of emergency and denials of justice, it will thus interfere, whatever be the case presented. It will issue the writ in its discretion, according to the exceptional features of each case submitted.

In the present instance the district judge has adduced satisfactory reasons, resting both on an absence of facts and a consideration of the law, for refusing the injunction asked, which are substantially, that the petition is deficient, as it discloses no cause of action. We do

Moclair vs. Leahy.

not propose to elaborate those reasons which are indicated in the beginning of the opinion and which we deem amply sufficient to exonerate the respondent from the charge of an arbitrary, illegal and wrongful denial of justice.

It is, therefore, ordered that the restraining order herein made be rescinded and that the application for a mandamus be refused at the cost of relator.

Rehearing refused.

No. 8929.

MARGARET MOCLAIR VS. JAMES LEAHY, HER HUSBAND.

Cruel excesses of the husband towards his wife, consisting in abusing, cursing and striking her, refusing her food and subsistence, medicine and medical aid during her sickness, when shown to be able, with sufficient means to furnish the same, are causes which entitle the wife to a separation from bed and board.

A

PPEAL from the Civil District Court for the Parish of Orleans
Rightor, J.

Jos. H. Spearing for Plaintiff and Appellant.

H. H. Bryan for Defendant and Appellee.

The opinion of the Court was delivered by

POCHÉ, J. Plaintiff sues her husband for separation from bed and board, on the grounds of ill-treatment and cruel excesses and outrages. His defense is a general denial, followed by the charge that the wife's irascible temper and violence of character have been the sole causes of their disagreement.

The wife has appealed from a judgment rejecting her demand.

The evidence shows that the defendant has cruelly ill-treated his wife, towards whom he committed excesses and outrages which compelled her to seek refuge at the house of her parents.

The parties were married in October, 1881, and the ill-treatment of the wife began in May following, hardly six months after their marriage, at a time when conjugal relations, it ever, run smooth and harmoniously.

It appears from the record, that from the beginning of their quarrels to the time of the institution of the present suit, the parties had no more peace together, and that the husband's conduct became absolutely unbearable,

36 583 110 242

Moclair vs. Leahy.

Among other cruel excesses, he is shown to have refused her all means of subsistence, even food, although, as a skilled mechanic, he was earning ample wages; by reason of which she was compelled to go to her father's house for her meals. He thus became irritated at her frequent absence from home, to the extent of refusing to admit her in the house on her return in the evening from her parents' domicile. It is also shown by the evidence that, during a spell of sickness with which she was afflicted, he refused to procure medicine or medical aid, for which she had recourse to her friends and relatives. During his ire and frenzy, he broke the furniture, cursed and used foul language against his wife, whom he struck on two occasions.

A woman subjected to such treatment is justifiable in taking refuge with her parents and is entitled to the intervention of the laws enacted for the protection of ill-treated and abused wives.

An attempt was made to show that the wife had a bad, irascible and uncontrollable temper; and that on one occasion her conduct had become scandalous through her violent refusal to allow men to remove the furniture from one house to another, under her husband's orders.

The facts are that she refused to allow furniture, which she claimed as her own, to be removed to a house, where she had determined not to follow her husband, after his conduct and excesses had rendered their living together insupportable.

We are satisfied that all the troubles of that unfortunate household are wholly attributable to the fault of the husband and that the wife is entitled to relief.

We note her prayer for alimony and for a liquidation of the community interests, but the evidence is not sufficient to allow us to intelligently dispose of that issue in the present proceedings. We reserve her rights to press her claims thereto in a separate action.

It is, therefore, ordered and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered and adjudged that plaintiff do have and recover judgment of separation from bed and board against her husband, with her costs in both courts, and with the reservation of her right to alimony and the liquidation of the community in a separate action.

Rehearing refused.

Honold vs. Meyer et als.

No. 8870.

MRS. C. HONOLD VS. VICTOR MEYER ET ALS.

Plaintiff owned certain corporation stock, which stood on the books of the corporation in her name and for which she held a certificate also in her own name. She gave a power of attorney to an agent to sell and transfer the stock. The agent fraudulently pledged the stock in favor of defendants, to secure the debt of a commercial firm of which he was a member. The pledge was effected by means of a transfer to defendants on the books of the company, made by virtue of the power of attorney, and a certificate was issued in the name of defendants. Defendants had no knowledge of the fact that the stock be. longed to plaintiff. They accepted the transfer on the faith of the certificate issued in their own name. Held that they were not bound to enquire into plaintiff's title, and that the latter cannot recove r.

A'

PPEAL from the Civil District Court for the Parish of Orleans.
Tissot, J.

T. J. Semmes & Payne and Henry Denis for Plaintiff and Appellant. 1. An agent authorized to sell cannot pledge his principal's property, to secure his own debt. Story, Agency, §§ 78, 225, 228; Kent, 2 vol. p. 626, et seq.; Wharton, Agency, pp. 193, 745, et seq.; C. C. 3145; 25 A. 313; 19 A. 368; 19 A. 300; 10 A. 70, and cases cited. 2. The maxim: En fait de meubles la possession vaut titre, is no part of the law of Louisi ana. It was unknown to the Roman law. Troplong, Prescription, vol. 2, pp. 556 and 560; Duranton, vol. 15, § 385. It was introduced in the Napoleon Code, as the heading of Article 2279. In adopting Article 2279 of N. C., we rejected in Lousiana its heading. See Code of 1808, p. 488, Articles 75 and 76; Code of 1825, Arts. 3506-7. In Louisiana the right of revendication of movables from a bona fide purchaser, is well established. 9 Rob. 525; 10 Rob. 55; 11 Rob. 16; C. C. 2452; Stern Bros. vs. Bank, 34 A 1119, and cases cited.

3. An exception to the rule is when the true owner has put on his agent the indicia of own. ership. 6 A. 7, 313, 516; 5 A. 73, and cases cited. The owner of stock of a corporation does not put on his agent the inditcia of ownership, if he does not transfer the stock to him or assign his certificate to said agent, or in blank. Such owner does not exhibit his agent to the world as the apparent owner, by simply giving him a power of attorney to sell. 74 N. Y. 226; 46 N. Y. 325; 49 N. Y. 289; Moores vs. Citizens' Bank of Piqua, just decided by United States Supreme Court.

4.

A pledgee cannot prescribe. C. C. 3175. Prescription of movables, only applies to corporeal movables and obligations to bearer. Marcadé, Prescription, p. 254; Laurent, vol. 33, p. 580; Troplong, Prescription, vol. 2, p. 583. Prescription suspended in favor of the wife when action prejudicial to husband. C. C. 3525; 2 A. 756, 834; 34 A. 822.

Julius Aroni, B. F. Jonas and Breaux & Hall for Defendants and Appellees.

1. One who has conferred upon another, by a written transfer, all the indicia of ownership of property, is estopped to assert title to it, as against a third person who has in good faith acquired for value, from the apparent owner. Dos Passos, p. 601, and note; Mc

Neil vs. Tenth Nat. Bank, 46 N. Y. 325; Moore vs. Metropolitan National Bank, 55 N. Y. 46; Berwick vs. Marye, 9 Nev. 312.

2. Stock assigned as security of a negotiable note, transferred before maturity, is taken by the assignee free from all equities, on the ground that the security partakes of the