If

complained of is still in the lower court. the contention of the counsel for the respondent judge be correct, it would seem that the matter presented would be one beyond the reach of any remedial process from this court. But we need not, in order to decide the issues presented, determine whether we have the power, under proceedings such as these, to order the undoing of unlawful acts. It would seem clear, however, that, if a judge does an act which is void in law, his subsequent affirmance of the void act amounts to naught. In this case the district judge fixed the amount of the appeal bond in a sum which the law declares to be insufficient to sustain a suspensive appeal. His act was void for the purpose intended. Subsequently, after hearing the parties, he did not affirm his action, but simply declined to act, under the mistaken belief that the matter was no longer before him. In this he clearly erred. The matter was before him. On having the insufficiency of the bond called to his attention, he should have dismissed the suspensive appeal. The matter did not involve any exercise of judicial discretion. The failure of the defendants in the executory proceedings to furnish a bond sufficient to sustain a suspensive appeal invested the relators with the legal right to an execution of which they cannot be deprived, under the circumstances of this case, without a denial of justice.

The two cases mainly relied on by the counsel for the respondent judge in no wise conflict with our views as herein expressed. In the case of State v. Judge, 14 La. Ann. 60, the relator sought to have the writ of mandamus issue to compel the judge of the lower court to rescind an order for a suspensive appeal from a judgment which the relator contended had been rendered on the judicial admissions and confessions of the appellant, and which judgment the relator claimed was therefore unappealable. That case involved a matter of judgment and opinion, which this court said could well await decision on the appeal which had been taken to this court. In the case of State v. Judge, 42 La. Ann. 1104, 8 South. 305, this court refused to compel the lower judge to rescind an order for a suspensive appeal because he had not in any of the proceedings transcended the bounds of his jurisdiction or of judicial power. The relators are clearly entitled to the relief they have applied for.

It is therefore ordered that the appeal bond in this case is hereby declared to be insufficient, null, and void for the purpose of sustaining the suspensive appeal from the order of seizure and sale issued in this case. It is further ordered that the judge of the nineteenth judicial district court try anew, according to law, the rule taken by relators to obtain the dismissal of said suspensive appeal; and the writ of mandamus herein is hereby made peremptory.

1. It is the settled jurisprudence of this court that the series of consolidated bonds of this state known as "Agricultural and Mechanical College or Seminary Bonds" are illegal and void, having been declared null by the constitution of 1879; and this nullity may be reached and declared in the hands of any third holder, however innocent in their acquisition.

2. That any one who shall collect from the state interest on coupons clipped from said bonds, after he has become advised of the illegality of such bonds, is under obligation to make restitution to the state of the amounts thus paid by the state in error.

3. In case the state treasurer, having official custody and possession of said illegal bonds, shall fraudulently and feloniously convert same to his own use, and embezzle same, and collect unduly the interest thereon, any one aiding, assisting, and conspiring with said treasurer in so doing becomes liable to the state for the amount of interest thus illegally obtained. 4. In case such treasurer shall pledge such illegal bonds for a loan of money, and the pledgee shall, after obtaining knowledge of their illegality, repledge them again to other persons, this state of facts constitutes no defense to the state's demand for possession of the bonds.

5. It is within the power of the court, under such a state of facts, to reach and declare the nullity of the bonds, and decree_the_right of the state to have same surrendered to her. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Frederick D. King, Judge.

Action by the state of Louisiana against M. J. Hart to cancel certain bonds. There was judgment for plaintiff, and defendant appeals. Modified.

Farrar, Jonas & Kruttschnitt, for appellant. M. J. Cunningham, Atty. Gen., (Walter H. Rogers, of counsel,) for the State.

WATKINS, J. In this suit three distinct claims are made against the defendant in behalf of the state as plaintiff, to wit: (1) For $30,760, amount of certain checks issued by E. A. Burke, treasurer, purporting to have been in payment of interest coupons on consolidated bonds that were in fact never surrendered; or, in other words, checks issued without any consideration, and payable to the defendant's order. (2) For $24,300, as the amount of interest alleged to have been collected by the defendant, or through his procurement, on state bonds alleged to be void. (3) For the surrender and delivery of certain bonds that are alleged to be illegal and void, and unlawfully in the defendant's possession; that is to say, bonds bearing the numbers 728, 735, 755, 766, 775, 782, 814, 818, 829, 882, 897, and 890, of the denomination of $1,000 each, and aggregating $12,000 in amount, and the bonds bearing the numbers 1902, 1919, 1920, 1821, 1939, 1978, 1984, 2003, 2005, 2007, 2009, 1954, 1937, 2014,

1933, 1967, 1923, 1948, 1918, 1932, 1947, 2041, 2061, 2052, 2040, 2042, 2043, 1928, 1915, 1972, 1873, 1979, 2022, 1955, 1985, 2033, 1945, 1968, 2064, 1930, and 1935, of the denomination of $500 each, aggregating $20,500 in amount. The prayer of the petition substantially conforms to its averments, though it does not contain any alternate demand for the value of the bonds as a quantum meruit, nor any request that judgment condemn the defendant to surrender same, though it is concluded with a demand for general relief. The cause was tried by a jury, and a general verdict was rendered in favor of the state for the sum of $55,060, without interest, sustaining the writ of sequestration, and commanding the defendant to surrender and deliver up all of the bonds' claimed; but the judgment rendered commanded him to deliver certain specified bonds,-that is to say, all of the $1,000 bonds claimed in the petition except bonds numbered 766 and 775, and, further, except bonds of the denomination of $500 numbered 2007, 2009, 2052, 2042, 1915, and 2033. And the judgment further decrees the delivery of bonds numbered respectively 1955, 2023, 2027, 2029, 2058, and 1942, of the denomination of $500 each, which are not claimed in the suit at all. From that judgment the defendant has appealed.

The theory upon which the attorney general proposes to hold the defendant is, as we gather from his petition, substantially as follows, viz.: That under the provisions of the constitution of 1879, which effected a settlement of the public debt, certain bonds, which had been issued to the Agricultural and Mechanical College and to the Louisiana State University or Seminary fund under the act of 1874, were declared null and void, and ordered destroyed. That the sums due said institutions were recognized as a debt of the state, and ordered to be placed to the credit of said college and seminary of learning on the books of the state auditor, and interest thereon paid out of the current school fund. That the aforesaid bonds were held by the state, through the treasurer, in trust, and were in the possession of the treasurer in 1879 and 1880, and up to April, 1888, as is evidenced by the official report he made to the governor, and which was transmitted by him to the general assembly in January, 1880, and which report was, by the general assembly, printed, and became a public document under the law, and contained a full and complete description of said college and seminary bonds,-setting out their numbers and amounts. That the Agricultural and Mechanical College bonds were of the denomination of $1,000 each, issued in pursuance of the funding act, it being Act No. 3 of 1874, and bore the numbers 710 to 905, inclusive, and aggregated in amount $196,300,-including two small bonds for $100 each; and that the University or Seminary bonds were of the denomination of $500 each, likewise issued under the funding act of 1874, and bore

the numbers 1902 to 2065, inclusive, consisting of 164, and aggregating in amount $82,200, including two small bonds of $100 each "That all of said data will more fully appear by reference to said official report of the treasurer, hereto annexed, and made a part of [the petition,] for greater certainty. That the legislature of the state, by a formal resolution, duly passed, and signed in accordance with law, ordered said bonds destroyed," but that in fact said bonds were not destroyed, and that, on the contrary, said treasurer "wrongfully and feloniously did convert the same to his own use, and embezzled said described bonds." That the defendant was interested with said treasurer in his wrongful and illegal conversion of said bonds, and thereby became possessed of same, and pledged, dealt in, and negotiated by sale and exchange the said bonds, “and is the holder of a large quantity of them at this day." That not only was the defendant a broker, and made such negotiations for himself, but he acted and operated through other brokers and the stock exchange and other agents in selling and pledging said bonds. That he formed a copartnership with Alfred Jardet, and opened an account with himself in the negotiation of state bonds; and that he carried on a similar business through Lawrence Conroy as his agent, he using the defendant's name in signing notes, checks, etc. Then the specific averment is made that the defendant did use, pledge, and obtain money on said illegal and void bonds to the extent of $110,000, in this, to wit: That on the 17th of February, 1882, he pledged to the Germania National Bank $53,000 of said bonds, which he transferred as collateral, on that date, to E. H. Levy and L. Jardet; that on the 8th of March, 1882, he pledged to the same bank, to secure a loan, $4,000 of said bonds, and redeemed the same on May 12, 1882; that on May 10, 1882, he pledged to same bank $20,000 of said bonds, and redeemed the same on the 18th of that month; that on July 24, 1882, he pledged to said bank $18,000 of said bonds, and redeemed the same on the 19th of September following; that on October 10, 1882, he secured a loan of $12,000 from the New Orleans National Bank on a pledge of such bonds, and on the 2d of November of same year he obtained another loan of $5,000 on a pledge of such bonds. The averment is then made "that in all of said transactions said Hart instructed his agents and partners to preserve the identical bonds delivered by him, and to all of which were attached coupons for interest past due and to become due;" that in October, 1883, he borrowed from John Klein & Co. a sum of money, and pledged $28,000 of said bonds to secure the loan, and took up same on the 27th of October, 1885; that from July, 1884, to December 28, 1885, he pledged to Henry Bier $54,200 of said bonds to secure a loan of $30,800, and to all of said bonds were attached interest coupons due

from July, 1880, with the exception of bonds numbered 809, 821, 823, 843, 844, 853, 884, and 889, from which said defendant had cut the coupons, up to and including No. 20, due January, 1884. It is further averred that the defendant, "in pursuance of his agreement, and in consideration of his interest in said transactions with said E. A. Burke, (treasurer,) did compound, by way of account, with said Burke, as to all of said bonds; for it is true that said Burke did have in his possession coupons of one hundred and five of said bonds, part of which, in August, 1881, he, through his agent, one Cockerton, collected from the State National Bank, all of which will appear in detail as follows, to wit: Bonds numbered 719, 721, 722, 723, 724, 725, 728, 730, 731, 732, 733, 734, 738, 739, 740, 741, 742, 745, 746, 747, 748, 749, 750, 751, 752, 753, 754, 755, 760, 761, 762, 768, 770, 771, 775, 778, 780, 783, 789, and 797,-a total of 40 coupons, bearing the number 25. Bonds numbered 732, 801, 802, 803, 806, 807, 808, 811, 814, 815, 816, 819, 821, 823, 824, 827, 831, 832, 835, 836, 837, 842, 843, 844, 851, 852, 853, 854, 863, 864, 865, 866, 867, 870, 872, 873, 877, 878, 882 883, 884, 885, 886, 887, 889, 890, 891, 894, 895, 896, 802, 903, 904,"- -a total of 53 coupons, bearing the number 24. Bonds numbered 3906, 5606, 5607, 5608, 5609, 5610, 5611, 5612, 5613, 5614, 5789, and 6185,-a total of 12 coupons. It is then averred "that the above numbers represent a total of 105 consolidated bonds of $1,000 each, and are all numbers published as belonging to the Agricultural and Mechanical College bonds, and of bonds exchanged for constitutional bonds and not destroyed." Besides these there were coupons of the $500 bonds of the following numbers, to wit: 282, 1627, 1802, 1908, 1910, 1920, 1821, 1822, 1928, 1938, 1847, 1949, 1951, 1952, 1860, 1976, 1078, 1682, 193, 194, 2002, 2003, 2005, 2041, 2013, 2018, 2037, 2029, 2032, 2035, 3840, 3041, 3042, 3043, 3047, 3048, 3055, 3056, 3058, 3059, 3060, 3061, 2438, 2440,-a total of 44 coupons. That the total amount represented by coupons is as follows, to wit:

One coupon, No. 24, at $20......
105 coupons, No. 25, at $20.
44 coupons, No. 25, at $10.

2 coupons, No. 25, at $2.

Total amount.

....

$

20 00 2,100 00 440 00 4.00 $2,564 00

The averment is then made that in February, 1886, the defendant pledged to the Germania National Bank $109,700 of said bonds to secure a loan, and that said bonds remained thus pledged until the 21st of March, 1887; and on the 1st of April, 1887, he pledged to the Mutual National Bank $100,000 of said bonds to secure a loan of $85,000, which was paid on the 1st of November, 1887. That said negotiations continued, until, in part, the pledging of said bonds was changed, to wit: "In January, 1888, and from said date up to September, 1888, when said

The

Hart, through his broker, sold $65,000 of said bonds, and the same are now held by various persons in this city; and, in addition thereto, the said Hart has now in his possession, of said bonds," numbers given above and reiterated in the judgment, aggregating $32,500; that is to say, 13 $1,000 bonds, and 41 $500 bonds. Then it is further alleged that the defendant, in addition to the bonds enumerated, viz. the Agricul tural and Seminary bonds, "used as in the manner set forth, by pledging, and did pledge and negotiate by sale and exchange, certain consolidated bonds of the state, and numbered 5606, 5607, 5608, 5609, 5610, 5611, and 5612, each for the sum of $1,000; that said bonds were delivered to said E. A. Burke, state treasurer, whose duty it was to destroy the same; but, unmindful of his duty, he feloniously and corruptly converted same to his own use, and [the defendant] Hart, under his terms of agreement with said Burke, negotiated the same in the manner and form as above set forth." charge is then directly made that after December, 1885, and possibly after August, 1886, the defendant "procured to be altered all of said bonds [that is to say, the consolidated bonds] and coupons aforesaid, by adding to them the words: 'Interest reduced to two per centum per annum from January first, one thousand eight hundred and eighty, and four per centum per annum thereafter,' purporting and pretending that said bonds were of full force and effect, and valid; making said alteration an essential change, with intent to deceive, and to give to said bonds an apparent validity, and to make them negotiable upon the market, and to collect the interest on said coupons." It is further averred that Burke, treasurer, did draw, by check, out of the public moneys of the state on deposit with the fiscal agent, the State National Bank, the sum of $30,760, purporting to be in payment of coupons numbered 13, 14, 15, 16, 17, and 18, without specifying the particular bonds, either by class or number. "That said checks were drawn to the order of M. J. Hart and Lawrence Conroy, but were all used for account of said Hart, and placed to his credit, and by him checked out in payment of his and the said Burke's private or personal matters." Then follows a list or schedule of said checks, viz.: "October 17, 1882, to M. J. Hart, for $1,040; October 17, 1882, to M. J. Hart, for $1,040; May 23, 1883, to L. Conroy, for $2,500; May 23, 1883, to L. Conroy, for $2,500; May 26, 1883, to M. J. Hart, for $2,000; May 26, 1883, to M. J. Hart, for $2,000; September 28, 1883, to L. Conroy, for $2,000; September 28, 1883, to L. Conroy, for $2,000; July 3, 1883, to L. Conroy, for $6,000; July 3, 1883, to L. Conroy, for $2,000; April 10, 1884, to L. Conroy, for $2,720; April 15, 1884, to L. Conroy, for $2,960." Then follows the averment that no consideration was given by

to have been paid on the checks of the state." No objection was urged by plaintiff's counsel to this charge, and we must presume that it was perfectly satisfactory. We are therefore to ascertain whether the defendant was interested with Burke in the aforesaid illicit transactions; or, if he was not, whether he received money from the state, on the payment of coupons, through the medium of the treasurer's checks, unlawfully issued.

Now, while it is true that with reference to the sums that were by Burke checked out of the treasury there are no particular bonds designated, yet, taking the list of checks that is furnished, and their dates, it is evident that all the transactions represented by them occurred between the 17th of October, 1882, and April 15, 1884, and during the lifetime of L. Conroy. Recurring to the dates specified in the petition as those on which the defendant was engaged in bond transactions, and it will be seen that same began on the 14th of February, 1882, by a pledge of $53,000 bonds to the Germania National Bank; and that the subsequent transactions occurred on the 8th of March, 1882, on the 10th of May, 1882. on the 12th of May, 1882, the 24th of July, 1882, on the 19th of September, 1882, on the 10th of October, 1882, on the 2d of November, 1882, on the 10th of July, 1884, on the 27th of October, 1885, and on the 28th of December, 1885. Comparing dates, and it appears that only one of the transactions which are detailed in the petition is alleged to have taken place within the period when those checks were issued; and the averment of the petition is that the transaction of that date was a loan, which the defendant secured from the New Orleans National Bank, of $5,000, on a pledge of $18,000 of bonds, which had been previously pledged to the Germania National Bank, on the 24th of July, 1882, prior to the issuance of the first of said series of checks. It further appears that the check transactions occurred antecedent to the date of defendant's pledge of $54,000 of bonds to Henry Bier, on the 28th of December, 1885, from which it is alleged that the defendant had cut the coupons up to and inclusive of coupon No. 20, due January, 1884; and likewise antecedent to the date of defendant's pledge to the Germania National Bank of $109,700 of bonds, in February, 1886; and also antecedent to his pledge to the Mutual National Bank of $100,000 of bonds, on the 1st of April, 1887. It further appears from the allegations of the petition that in all the various bond transactions of the defendant prior to the 1st of September, 1888, he acted as broker or agent in negotiating pledges of bonds. and that it was subsequent to that date that he acted in the capacity of owner of any of said bonds, or made sales of them In market. Hence it is from this standpoint that we are to view the defendant's liability for restitution of interest that is alleged to have been unduly collected from the state.

It is in proof that the defendant was absent

habitually during the years 1883 and 1884, in New York, and was only in New Orleans for a few days at a time, and that most of the transactions that occurred in those years were negotiated through L. Conroy. One witness states that he received two checks of $2,000 each from L. Conroy on September 29, 1883, and credited same to the account of Hart and Conroy, though the account was ordinarily kept in the name of Conroy alone. He says: "I presumed it was Hart and Conroy, since Mr. Hart was always telling me that Mr. Conroy was a partner with him in the city time business." He then makes this explanation, viz.: "That simply shows that on September 29, 1883, I received two checks of $2,000 each, and they were credited to the account of L. Conroy. I can tell no more about it. I don't know what it was for, or anything. I simply know it is credited to his account." He further states that on July 3d he finds another entry on his cash book: "L. Conroy, $2,000." That he knows "nothing further than that he received the checks, but does not know to whose order the checks were made payable. His books do not show to whom they were drawn, and he knows nothing beyond what his books show." The defendant, as a witness, states that L. Conroy had charge of his city time business for a portion of the profits during the years 1883 and 1884. That the money represented by the different checks was paid by Major Burke to Mr. Conroy for the accrued interest on his different loans. Major Burke informed witness that he had given Mr. Conroy the coupons to cover that, and asked him to give the checks to Conroy. "I found afterwards that Conroy had drawn a check for a like amount on 'May 31, 1883, $4,000.' ” "Mr. Burke," states the witness, "said that he did not like to draw the checks to his own order, being state treasurer." "They were coupons," he said, "he had got from the bonds that he had been carrying for different parties. I mean to say that other parties were carrying for him. Q. Did Major Burke tell you who held the coupons? A. He told me that Mr. Conroy held the coupons. I asked Mr. Conroy about it, and he verified the statement. Q. Conroy held the coupons and he got the checks? A. Yes, sir. Q. Are these the only two checks you received in person? A. That is all." He says there is no record in his books-those kept by Conroy-of the two checks of September 28, 1883, for $2,000 each, ever having been deposited. Finds no record of check dated July 3, 1883, for $2,000, and one for $6,000, payable to L. Conroy, no record of these checks having gone into the business. He then refers to a check for $2,960, which was deposited, but it was payable to the order of W. B. Stansberry, and bears date April 16, 1884. It is evident that this check is not embraced within the calls of the plaintiff's petition, and need not be taken into account in argument. This witness distictly and emphatically states that he "never