Barada v. Inhabitants of Carondelet

delivered the opinion of the court.

1. The plaintiff in this case presents himself in rather a singular attitude. He is seeking to recover money, to which he alleges he is entitled, and yet he disclaims all title to the property whose sale has given rise to this action. There is an execution against property; it is sold under that execution; the defendant in the execution denies that he has any title to it; it *331does not appear that be is even in possession of it; and yet he claims the money arising from the sale. The principle is not perceived on which the action can be maintained. It is not contended that where there is á title to real estate, a parol disclaimer can divest it, or that, after such disclaimer, the party may not show title in himself, if he has not, by his conduct, estopped himself from such a course towards third persons who have contracted on the faith of such declarations. But here, there is no pretence of title to the property, and an admission is made on the trial of this cause, that there was none in the plaintiff.

The other Judges concurring, the judgment will be affirmed.

on petition for rehearing. The part of the petition which prays for a mandamus and injunction is undisposed of, and there is still a balance upon which defendants threaten execution, unless the ordinance is valid and operates for the plaintiff. The validity and effect of the ordinance must be passed upon.

Scott, Judge. 2. The new code simply provides that the remedy by mandamus shall not be affected by anything contained in it, until the legislature shall otherwise direct. This remedy ^ not being affected by the code, the rule as to the join-der of different causes of action does not apply to it, and from the nature of the remedy, it is obvious that it cannot be joined with other actions.

3. As to the injunction prayed for, it is evident that the matter was not passed upon by the court below, nor was it brought in any way to its notice. Should this court now interfere, it would be an exercise of original jurisdiction.