New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-09-04

lcf W WARRANT tno return Ol UQtSe TeldlUTS
to custody. The commitment does notsre-
cite that relators had either been adjudged
guilty of a contempt of court, or violation
of injunction, from aught that appears on
the face of the commitment, or had even
been brought to the bar The relatorS
were fined $50 each, while the commitment
shows that they were only punished for
violating an injunction, which, of itself, is
not punishable by fine. They are commit
ted, ostensibly, for violating an injunction,
yet the especial matter set forth in the
commitment leaves it uncertain whether
the supplemental Injunction had been vlo-
Lated otherwise than oy an abuse of certain
wrts Of prohibition, by slaughtering a
greater number OF cattle than the writs of
prohibition allowed, etc: matters over
which the Superior District Court clearly
has no jurisdiction.
To my mind, the return is insufficient:
the writ must he made absolute, and the
prisoners enlarged.
United STATES supreme Court.
The following case was decided August 30:
Paul ii. Lewis, appellant, vs.. Philip G.
Cocks sole devisee and legatee of John G.
Cocks, deceas sed-Appeal from the Circuit
Court for the. fifth cilcuit and district of
Louisiana. Mr.. Justice SGayae delivered
the opinion OF the court.
The facts disclosed in the record, so far
as it is necessary to state them, are as fol
lows: Robert Anderson held four promIs-
sorry notes of Cocks, each for $1,000 and
interest. The notes were secured by a
mortgage upon real estate in the city of
New Orleans. In January, 1863. Anderson
filed. in the SECOND Distyict Court of New
Orleans, a petition for the seizure and sale
of the mortgaged premises. He claimed
that the sum of $500 was due Upon the
notes. Process was Issued, and property
seized and seld. Anderson BECAME the pur-
chaser for the sum of $3.50.
The sale was on the third of March, 1863.
In the same month he filed petition in the
Provisional Court of New Orleans. claiming
that Cocks was still indebted to him 10 the
sum of SS339, besides costs, and praying
that Cocks aud Charles Iyllested, his
agent, should be cited to appear and an
swer. On the thirtieth of May Judgment
by default was rendered in, favor Of Ander-
son for the sum of $3.50, with interest ac.
corGing to the terms of the notes, and for
the costs. Under the execution issued upon
this judgment two lots and the improve
nents thereon were seized and sold to
Charles lizard for the sum Of $3.50. lizard
entered into possession, and had refused to
give up tine property to Cocks. Cocks filed
this bill: Izzard demurred. The demurrer
was sustained, and the bill dismissed The
the case was brought by appeal to- this
court. Here the decree was reversed, and
the case remanded to the Circuit Court for
further proceedings gs-Cocks vs. lizard,
Wall, $50. Thereafter in that court, lizard
answered.
Lewis, the appellant, was subsequently,
made defendant in place Of lizard, and also
answered. Testimony was taken on both
sides. AT the hearing the Circuit Coart de-
creed in favor Of Cocks. ThereupUn Lewis
appealed to this court. The case is thus
brought here second time The bill CLAIMS
relief upon three grounds. l. Thatthe pro-
visional court was nullity, aud its iudg-
ment against Cocks void. =. That no serv-
ice of process was made upon Cocks; that
no sufficient service was made upon Hylie-
sted, the agent ofCocks, and that Hyllested
was not such an agent that valid service
could be made upon him. 3. That lizard
was guilty of gross fraud touching the
sale OF property by the marshal; that he
professed to be the friend of Cocks, and
to intend to buy in the property for
him; that he thus. deferred others from
bidding, and himself bought the property
at a sacrifice; that subsequently, he ac-
knowledged to Cocks his trustee relation
to the property, and expressed a willingness
to surrender it, but thst finally his cupidity
got the better of his integrity and impelled
him to deny that CoRks had any right what
ever to the propertyS,aui that he claimed to
hold it as his own. The bill tenders back
the purchase money paid lizard, with i'll
terest. lizard answered and denied all the
material allegations of the bill. He also
set up that he had mortgaged the property
to Lewis; that it had been seized and sold
under that mortgage; that Lewis became
the purchaser, Lizards entire title thus be-
coming divested out of him and vested in
Lewis. The answer of Lewis sets up the
same facts as to his title, and contains the
same denials as to the ayermt nts of the
II f1A ,hst 90 I 60,
lizard as defendant in this case.
This outline Is sufficient to render intelli-
gible the several points to which we shall
advert in disp0sing of the case. The ques-
tion of the validity Of the provisional
court is not az open one. We have held it
valid upon more than one occasion when
the question has been before us the
Grapeshot, Wall. 1897. Tie fraud charged
upon lizard is expressly denied by his an
swer, and is not sustained by the evidence.
There is a decided preponderance against
it. We are unanimous upon the point. 1t
could serve no useful purpose to examine
the proofs in detail in order to vindicate
our judgment. Nothing further need be
said upon the subject. The remaining part
of the case is that which relates to the al
legations of the non-service of process. In
considering the bill we must regard it as
being just as it would be if it contained
nothing but what relates to this subject
Everything else must be laid out of view.
1t must be bore in mind that the COM
plainant is not in possession of the property.
If the bill alleged only the nullity of the
Judgment under which the premises were
sold, by reason of the Ionservice of the
original prOcess.in the suit, wherefore the
defendant had no day in court, and judg-
ment was rendered against him by default,
and upon those grounds had asked a court
of equity to pronounce the sale void, and to
take the possession of the property from
lizard and give it to the complainant,
could such bill be substantiated Such is
the case in hand. There is nothing further
left of it, and there is nothing else before
us. Viewed in this light, it seems to
us to be an action for ejectment in
the form Of bill in chanoery. Ao.
cording to the bill, excluding what relates
to the alleged fraud, there is plain and
adequate remedy at law, and the case is
one peculiarly Of the character where, for
that reason, court of equity will not inter
pose. This principle in the English equity
jurisprudence is as old as the earliest pc
riod in its recorded history .(Spenoe's Ju-
risdiction of Courts of Chancery, 40S, note
b; i'd, 400, note Az The court advert to
the point whether the judgment of the pro-
visiOnal court can be pronounced nullity
without the legal representative of Ander-
son, the deceased plaintiff, being before the
court as a party; but as the first objection
is fatal, this one is not considered.
tn oIuu in NIisslssinnf