On Application fob Rehearing.
Spencer, J.The very earnest appeal made for a rehearing in this ■case has induced us to re-examine the facts relative to the solvency of McCuteheon, Jno. I. Adams, and Staub.
When the law requires a surety to be given, it does not intend a ■mere formality to be gone through. It intends that the creditor shall have pledged for his debt something that may be made available for its ■payment.
We can hardly think counsel are serious in urging that Staub and *481Adams are good and sufficient sureties for the sum of $2000. It would be a mockery of justice to so treat them. We therefore dismiss them from further consideration.
The solvency of McOutcheon is more debatable.
His solvency depends upon the extent of his liability to his wife. She has recorded against him a mortgage for $>58,916 based upon her oath. The indebtedness consists, as charged by her, of about $44,000 in State bonds, and mortgage notes for about $12,000, and other effects.
McOutcheon when on the stand as a witness, says this $58,916 represents the amount of his wife’s paraphernal property. True he is asked if she has not resumed its administration, and he answers “ yes.” But, in the' next breath, he tells us that he has the note in bank, and that he has sold the bonds, and that he has the proceeds. This shows that she has not got the administration of this property at least. It also shows that he owes his wife the amount or value of the bonds sold, and there is no legal proof that he has ever paid her.
But it is said, and such is the fact, that Mrs. McOutcheon had sued her husband, alleging that he liad received of her paraphernal effects to amount of about $60,000 ; that she had learned that a part thereof had been 'by him invested in stock of the Louisiana National Bank, and of the Germania National Bank, and Hibernia Insurance Company.
She prayed to be adjudged owner of this stock, and that she be separated in property from him, and that she have judgment, with privilege and mortgage for such part of said paraphernal rights as he may fail to restore to her.
Her demand for separation of property was discontinued. She took judgment by default against him, condemning him to restore to her the administration of her paraphernal and other property together with 'its fruits and revenues, and decreeing her to be owner of the 100 shares of Louisiana National Bank stock standing in his name. This bank-stock is shown to have been worth about $9000.
When the wife discontinued her demand for separation of property, she thereby discontinued her demand for a money judgment against her husband. Since the wife can only recover a money judgment, when she ■claims and obtains a separation of property and dissolution of the community, her suit was, therefore, limited to a demand of restitution of >such paraphernal property as existed in kind.
The judgment obtained by her does not bar her, therefore, from now or hereafter proceeding to demand a separation and a dissolution of the ■community, and a judgment for the value of such paraphernal effects as he has failed to restore to her. It is, we think, a mistake to say that the decree, declaring her to be owner of the 100 shares of bank-stock ¡standing in his name, is restrictive of her paraphernal rights. She had *482discontinued her money demand. The judgment only shows that the bank-stock was hers, and does not exempt the husband from being liable to her for the value of her other property of which he had disposed, some of which, as we have seen, he still has, and some of which he has sold. There is not a particle of proof that he has ever restored or paid for those bonds and notes. On the contrary, when on the stand in this case-he swears he still has the note, and still has the proceeds of the bonds sold by him. The evidence, we think, fails to show him good and sufficient for the amount of his suretyship. The burden was on appellants to prove that fact. Act 24 of 1876.
It is said in the next place, that we have dismissed the appeal entirely. We have only held that the bond was not good for a sus-pensive appeal. If the appellants took, also, an order for devolutive appeal, and had the amount of bond therefor fixed by the court, the bond given by them may well be held good and sufficient to maintain a. devolutive appeal., But that question is not before us. We hold that the judge a quo erred in holding the bond good for a suspensive appeal. We are not advised as to whether any sum was fixed for a devolutive appeal, and, therefore, do not pass On the question at all.
We know no law or precedent which would justify us in permitting appellants to now furnish other sureties in lieu of those held to be bad.
However hard the case may be upon appellants, we must follow what we understand to be the plain letter of the law. There was a judgment against defendants for 5515,000. To suspend that judgment, a-bond for $22,500 with good and sufficient securities was necessary. It was not furnished. It is equally evident that we cannot' hold a bond,, which was bad when given and when tested, to be good now, because some of the defendants have to-day paid their virile portion of the judgment. Our mission is ended when we pass upon the case as pre■sented to, and decided by, the judge a quo. The question is, was the-bond good when taken for 5522,500 ? We think not.
The rehearing is refused.