On Motion to Dismiss.

The appellees move to dismiss on the grounds, that there is not a legal bond of appeal — that the surety on the injunc*1022tion bond is incompetent as a surety on the appeal bond, having been condemned as a party to pay damages — and that the order for one of the appeals is void, because rendered after the jurisdiction of this court had attached.

The plaintiff had obtained an injunction upon a bond with surety, conditioned in the usual form. The injunction was dissolved, and judgment was rendered for fifty dollars as damages against the plaintiff and her surety in solido. She moved for a suspensive appeal in open court, and perfected it by giving bond with the same person as surety. In the following month, the surety prayed an appeal by petition, and gave-another person as her surety.

In an early case it was held, that the conditions of the two bonds-being different, the original one being only for damages consequent on a wrongful suing out of the injunction, and the last, that the surety will' pay the judgment to be rendered on the appeal, the same person may well sign both, if otherwise unexceptionable, unless he has been condemned as a party by the judgment appealed from under the act of 1831. Leeds v. Yeatman, 12 La. 383. That act is now incorporated in the Revised Statutes of 1870 as sec. 1754. The defendants insist that the solidary condemnation of the plaintiff and her surety on the injunction bond to pay the damages, as provided by the act of 1831, places this case pointedly within the exception mentioned in that decision.

The plaintiff cites Greiner v. Prendergrast, 2 Rob. 235 as conclusive-authority for the contrary doctrine. In that ease, upon a dissolution of the injunction, the plaintiff and his surety were condemned in solido to pay twenty-seven dollars as damages, with ten per centum interest-on the amount of the injoined judgment. The plaintiff prayed a suspensive appeal, and gave bond with the same surety. The same objection was made then as now, and the court held that a party had a right to a suspensive appeal, provided he offered such surety as would indemnify, his adversary against all consequences which might result from the appeal. It is true, say the court, that if both the principal and surety, against whom damages had been given on the dissolution of the injunction, had joined in an appeal, they would have been bound to give one solvent surety, although they were both admitted to be- sufficiently solvent to remove all idea of danger on that score. The reason would be that the law expressly requires surety on the grant of any appeal.

It will be-observed that case is identical with the present one, and the two Justices who were the organs of the Court in the two cases-cited were both on the Bench together when each of them was decided. The last must then be considered as overruling the first, if indeed it is-not reconcilable with it. The expression, unless the surety has been *1023condemned as a party, may be understood as another way of stating the-reason of the rule why he could not then be taken as a surety, viz that-he would then be a principal and must himself furnish a surety.

But since those decisions were made, important and radical alterations have been made in the laws governing appeals. Now, when an-appeal has been taken by motion in open court, all parties who are not appellants are declared appellees, and the bond in favor of the clerk is-for the benefit of each and every one of the appellees, and may be sued on accordingly.

When the plaintiff took her appeal in open court, and filed her "bond, the surety, who had been condemned with her solidarily for damages, became eo instanti a party to the appeal, as appellee. When that surety then became again a surety on the appeal bond, he occupied the--double and inconsistent positions of an appellee, whose interest was a. maintenance of the judgment, and a security to pay the judgment on appeal, in case the appellant did not pay.

Under these changes in the laws governing appeals, and because-of them, we hold that in all cases where a party is necessarily appelleeif he be not appellant, the surety on an injunction bond is incompetent to be a surety on a bond for an appeal from the judgment dissolving the injunction, and for damages against principal and surety in solido. And it was so held by us at the last term. Dumas v. Mary, Opinion Book, 47 p. 265. The appeal of the plaintiff is therefore dismissed.

But that of the surety is good. That appeal was taken by petition, ' and a separate security given. The filing a bond of appeal by one of' the parties condemned in the judgment below lodged only her appeal in’ this court, and did not prevent the other from taking an appeal at a different time within the permitted delay.

The motion to dismiss the appeal of plaintiff is allowed. The-motion to dismiss the appeal of the surety is denied.

On the Merits.

The opinion of the court was delivered by

This suit is to have decreed the nullity of. a judgment, obtained by J. E. Irvine against the plaintiff, and to restrain its enforcement by fieri facias, to accomplish which an injunction was obtained. The plaintiff is married, is separate in property from her husband, and alleges as causes of nullity that the debt, for which the judgment was rendered, was solely a debt of her husband, and that it was rendered without service of citation upon her.

The answer pleads the general issue, and discloses the want of interest of Irvine in the judgment because of its transfer through another *1024party to Flash, Lewis & Co. its present owners, who intervene and •defend.

It is excepted by the intervenors that Mrs. Bowman can not nowr ‘injoin the collection of a judgment for matters which she could have opposed to the demand in the original suit, a general proposition, the soundness of which is incontestable. It is however subject to some modification, as in the cases where the party sued was under an incapacity to contract. Hence a judgment against a married woman upon -two notes, executed by her husbaDd, and by herself as his surety, was held open to assault by means of an injunction, although she had failed to make that defence to the suit upon them, because the judgment, quoad the wife, was null, being upon obligations in fraudem legis, which •she was incapacitated to make. Medart v. Fasnatch, 15 Annual, 651. And that principle has been carried so far that the wife is permitted to sue to annul, and to injoin the enforcement of a judgment which she had confessed. Baines v. Burbridge, Idem, 628.

It was also objected that Mrs. Bowman appealed the original judgment, and failed to prosecute her appeal, and therefore she is now estopped from contesting its legality. But if she can contest the legality of a judgment she has solemnly confessed, how much more can she contest one which she disputed, and particularly when the failure to •prosecute the appeal was owing to marital influence. Bisland v. Provosty, 14 Annual, 169. She testifies that she signed the appeal bond for the purpose of prosecuting her appeal, and never instructed her atfcor- • ney to desist.

The proof is very complete that the debt was the husband’s. Irvine was a factor in New Orleans, and kept his-account for advances ;and supplies, against the husband, or ‘in his name as a courtesy,’ as he says, and this account was the basis of the judgment. It does not matter what words or name were written at the heading of the factor’s books, so far as fixing liability goes. He could not make her liable by merely keeping the account against her, and she could not avoid liability, if it was kept in the husband’s name, if in fact she was legally •chargeable.

But it is manifest that Mrs. Bowman was not thought of until it was apparent that a suit was looming in the near future. The account -was opened in 1869 against the husband and was continuous to 1874, with ■such charges as payments of ‘your draft,’ the draft being the husband’s, and statements of account, invoices, etc. were made to him alone. The bookkeeper says; — the whole account was kept and made out in the name of Mr. Bowman, and the items, ‘ by your draft,’ mean the draft of Mr. B. The account was afterwards changed to the name of Mrs. Bowman, after the transactions were closed, with the view of bringing the *1025■■suit as he supposed. The change was made just previous to bringing -the suit, by order of Mr. Irvine.

Nothing is better settled than that the debt must be shewn affirmatively to have enured to her benefit, when a party is seeking to enforce it against a wife, and she alleges that it is her husband’s debt alone, and the fact that she is separated in property from him does not change the •nature of the proof required, nor shift the burthen of proof from him who seeks to make her liable upon her who is attempting to escape liability. Erwin v. M’Calop, 5 Annual, 173. Lee v. Cameron, 14 Annual, 700. Even if the wife executes a mortgage under the authorization of the judge, the authority being for a specified sum and an expressed purpose, and the mortgage is for a different sum, and for the purpose ■expressed but- also for an additional and previously unexpressed purpose, any one Seeking to enforce the mortgage upon the wife’s separate property must prove aliunde that the debt, secured by.the mortgage, has enured to the wife’s separate benefit, even though the debt is evidenced by a negotiable note, and its holder is the party enforcing its payment. Conrad v. Leblanc, 29 Annual, 123.

The proof not only fails to fix liability on Mrs. Bowman, but she establishes by affirmative testimony that the debt was her husband’s, ■and that nó part of it enured to her separate benefit, or the benefit of her separate estate. The suit is only one more instance, of which the Reports furnish many, where parties, having goods to sell or money to lend, and seeing a fair chance of profit, deliver their merchandize or ■■send their funds with unsuspecting confidence to a man who has nothing with which to satisfy a judgment, but whose wife is mistress of the household treasury, and delude themselves with the fallacious hope that she will requite their complaisance by taking care that no harm «omes to them.

There is not, and there never has been, any doubt about the law governing a married woman’s liability. The courts have never wavered in applying it, and if parties will persist in ignoring what has been long •settled through repeated adjudications, they Inust bear with equanimity ■the losses, the risk of which was incurred through rashness.

It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the plaintiff do now have Judgment perpetuating her injunction, and for the costs of both courts.

On Application fob Rehearing.

As stated in our previous opinions in this case, Sarah. ¶. Bowman enjoined the execution of a judgment against her. There *1026was judgment against her, dissolving the injunction with damages against her and the surety on her bond in solido. Mrs. Bowman appealed by motion, in open court. Her surety appealed by petition and citation. On motion we dismissed Mrs. Bowman’s appeal, but maintained that of the surety, so that Mrs. Bowman is no longer before us as appellant, since her appeal has been dismissed. She appears only," then, as appellee in the surety’s appeal. As between her, therefore, and the other appellees, we can not correct the judgment. See 15 A. 433 ; C. P. 890; 28 A. 99, 455. Our decree, therefore, so far as it annuls and reverses the judgment of the lower court as to Mrs. Bowman, is erroneous, and must be limited in its effects to the surety only.

The rehearing is granted. ,

On Rehearing.

We are satisfied, upon re-examinatioD, with our conclusions upon the facts of this case. The debt was, we think, one for which the wife-was not liable, and could not bind herself, being that of the husband. The surety has the right by appeal to relief from the effects of an erroneous judgment.

It is therefore ordered, adjudged, and decreed that the judgment heretofore rendered by this court be set aside and annulled ; and it is now ordered, adjudged, and decreed that the judgment appealed from,, in so far as it affects or condemns Mrs. Mathers, the surety on plaintiff’s injunction bond, be annulled, avoided, and reversed, and that she recover of appellees the costs of this appeal.

The said judgment appealed from, so far as the same affects the-plaintiff, Mrs. Bowman, is not before us, and is not passed upon.