
    No. 8473.
    C. Chaffe, Jr., Syndic, vs. Mrs. Nancy A. Scheen and Husband.
    In a suit to annul a dation en patement, it is not inconsistent to allege that the act is a pure simulation, but if not simulated, that it has been made in fraud of creditors and gives an unfair preference.
    Where an insolvent has made a surrender under our State laws, which has been accepted, and a syndic has boon appointed by the creditors who have participated in all the insolvent proceedings, they are not estopped from opposing debts placed on tlie schedule, nor from suing to bring into the estate property alleged to have been fraudulently disposed of by the insolvent.
    When the act states that the consideration of the dation enpaiement is a donation to the wife of her father’s undetermined interest in a commercial partnership, without any aooom* pauying inventory of the partnership assets, and the alleged donor did not joiu in the act; and where, in a suit for separation of property, tlie court had refused to recognize such an item, said dation en %wiemcat must be considered a nullity.
    This case is not one covered by the Code, which provides that oven if the consideration, expressed, does not exist, the act will bo valid, if sufficient consideration is shown. Dy that is meant such consideration as was contemplated by the partios, at the time of execution of the act, but which was misdescribed in said act
    Where a judgment of separation was rendered, but no execution issued, under which any seizure was made, for more than a year afterwards, it will not he considered a bona fide non-interrupted suit, as is required, in order to obtain payment of the wife’s claims.
    Where there is no return made of the writ, there is no evidence that execution ever issued.
    APPEAL from the Tenth Judicial District Court, Parish of Red River. Logan, J.
    
      Montfort S. Jones, for Plaintiff and Appellant:
    On Motion to Elect.
    1. It is not an inconsistency in pleading to a direct action to annul, to allege that a sale is simulated, and if not simulated that it is fraudulent. 30 A. 1203; 27 A. 98.
    2. The law does not permit a creditor to sue all his debtors in the same action, unless there is a,iomt liability or priority of contract which authorizes the joinder; nor will it permit a party to be joined in a demand in which he has no interest. 14 A. 181; 12 A. 74.
    On the Merits.
    1. The dation enpaiement from Sebeen to his wife, having been made fov a false cause, or for a consideration which never existed, was a simulation in fraud of creditors, and an absolute nullity. C. C. 1893, 1894, 1900, 1779; 1 A. 192; 3 A. 230.
    2. The consideration expressed in the deed having been sued for by Mrs. Sebeen and rejected by the Court, and she having acquiesced in the judgment, her light to sot it up is res adjudicata against her. This Court has a right to construe that judgment, and in doing this, that construction must be adopted which is in accordance with the facts and law of the case. 4 L. 100 * 5 L. 289 ; 15 A. 223, 079; 10 A. 305.
    3. Any indebtedness on the part of the vendor to the vendee, not in the contemplation of the parties at the time of the transaction, will not give validity to a nudum pactum. Where the consideration expressed does not exist, to meet the requirements of 0 . 0.1900, the existence of a real indebtedness on the part of the vendor must be proved and identified with the contract to the extent of being shown to be the real “ consideration.'1 30 A,. 750.
    4. Donations inter vivos of immovables and incorporeal things must bo by authentic act; and where such donations constitute the cause aud consideration of an alleged indebted' ness on the part of the husband to the wife, and the fact of the giving which constituted tli© debt, is denied, they must be proved by authentic evidence, and parol is not admissible to prove same. C. C. 1536, 1538; 22 A. 97, 358, 393; 15 A. 585; 12 M. 649; 3 A. 610; 23 A. 242.
    r>. Article 1341. Civil Code, merely dispenses with the authentic act of acceptance on tho part of the donee, required in the preceding Article, 1540. It does not dispense with the authentic actof donation, but, on the contrary, presupposes such an act. O. C. 1540,1541.
    fi. Items of indebtedness in excess of $500 must be proved by one witness and corroborating circumstances. C. C. 2277.
    7. The recitals of a deed cannot bo altered, contradicted or explained by oral testimony.
    8. The fruits of real estate follow the ownership.
    it. A judgment in tho wife’s favor and against the husband, can have no effect as against third parties, when alleged to he fraudulent, unless supported by proof of its truth; nor is the creditor concluded by the proof adduced when the judgment was rendered. If required, she must administer logal proof. 28 A. 546; 19 A. 96 ; 4 L. 422; 12 L. 304 ; 11 L, 536; 4 A. 135 ; 10 A. 87.
    10. By the operation of Art. 123, Constitution of 1868, and Act 95 of 1869, a tacit mortgage in existence prior to January, 187J, and not recorded by that date, is absolutely destroyed, as to third persons, and can never be revived. 22 A. 278; 24 A. 25 $ 28 A. 584.
    11. The creditors of J. H. Sohoea, tho husband, having acquired superior rights against his property before the wife’s claim became a mortgage by registry, and before any valid transfer to her had been made, she can be allowed to retain said proporty as a credit on her judgment, subsequently obtained, only subject to the claims of the creditors. 33 A. 821, 532.
    12. The dation cn paumznt of Nov. 23,1878, from Sebeen to his wife, having been made* not to replace jjaraphernalia, hut for no consideration, and no consideration having been proven, was a simulationiu fraud of creditors and an absolute nullity. It cannot he given effect by a subsequent judgment. Corpus sine anima, extrinsecus apparens, intrinsecus nihil habens— or, as Mr. Justice Spencer described it, vox et preetereanihil — it cannot he given any effect whatever.
    13. “ The separation of property, although decreed by á court of justice, is null, if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide uninterrupted suit to obtain them. C. C. 2428 (2402); Nachman vs. LeBlanc, 28 A. 345; 24 A. 138; 23 A. 571.
    
      <T. F. Pierson, for Defendants and Appellees :
    1. Plaintiff is nob entitled to cumulate in the same suit two causes of action which are contrary to or preclude each other. C. P. 149. And, if he do so, defondant is entitled, before answering, to have him elect upon which one of tho two he means to proceed. C. P. 152.
    2 The allegations that an act is a simulation, or if not simulated, that it is a fraudulent act, subject to be revoked, are allegations and causes of action which are contrary to and preclude each other. Hen’s Higst., p. 1031, No. 1.
    3. The allegation that the £ct is one or the other is an implied admission that it is not bot7i1 and that one of these attributes necessarily precludes the other, and plaintiff must elect upon which one ho will stand
    4. A litigant cannot he permitted to shift at wilL to a contradictory position in reference to the subject-matter of the litigation to defeat an adversary. Hen’s Higst., p. 526, No. 22; ib. 143, 2031.
    f>. A solemn judicial admission cannot he denied when made with a full knowledge of the truth. Such admission can only ho retracted upon the plea of error of fact.
    6. When tho law makes no distinction the court can make none, and the rule established by O. P. 149 cannot be evaded by cumulating inconsistent demands in tho alternative form.
    7. The title to the defendant from her husband and her judgment against him being subsequently made a part of tho proceedings by the husband, in making a voluntary snrrender to Ms creditors, becomes ratified, indorsed and acquiesced in by the unqualified and unreserved acceptance thereof by his creditors, and cannot, thereafter, be assailed by the syndic representing such creditors, except upon the plea of error, fraud, deceit or the like.
    8. The husband may make a transfer of property to bis wife, in satisfaction of her paraphernal claims, when he is embarrassed or insolvent, and whether her mortgage is recorded against him or not, and whether or not there be a mortage in favor of a third person on the property transferred. Levi vs. Morgan, 33 An. 534; Payne vs.Hemp, ib. 818.
    9. If the cause expressed iu the consideration should be one that does not exist, yet tin» contract cannot be invalidated if the party can show the existence of a true and sufficient consideration. C. 0., 1900; Brown vs. Brown, 30 An. 966 ; 3 An. 235; 12 An. 531; 13 An. 25; 18 An. 238, 733.
    10. Where the entire record of the wife's suit and judgment against her husband is presented, including all the evidence filed therein, the judgment being rendered on default in the absence of the husband, there being no irregularity appareut in the proceedings and the evidence supporting the judgment in her favor, the burden of proof will be shifted on the syndic of the husband’s insolvent estate, plaintiff assailing her judgment for fraud and collusion, to make good his allegations by proof.
    11. Parol testimony is admissible to prove the wife’s account against the husbaud, though the account be for the price of lands given to her hy her father by parol. She is not bound to produce authentic evidence of the donation from her father of the property, the proceeds of which have been converted and used by her husband. In such case neither the husband nor his creditors under Mm can contest the validity of the donation to tbe wife by her father The validity of such donation can he inquired into ouly by the donor or some one under him, or the donee. 2 L. 40; Snow vs. Copeley, 3 An. 610; Pecquet vs. Pecquet, 17 An. 224; Johnson & Hamilton vs. Jordan <fe Poster, 22 An. 486.
    The husband, who is the agent, can never be heard to contest the title of the wife's property in his hands as such, nor can third persons do so under him. He is hound to restore what he has even unduly received. C. C 3005 [2974]; 21 An. 545, 645; 22 An. 599; 10 R. 481.
    12. The Civil Code of La., unlike the Code Hapoleon, fixes no peremptory time within which the execution of the judgment of the wife must he begun. Pulton vs. Husband. 7 R. <4. The time within which the execution of the judgment against the husband must be begun depends upon tbe exigencies or circumstances of each case. She might be unable to obtain an execution for a year or more and still continue an uninterrupted suit to obtain payment. 23 An. 321; 7 R. 74; 10 An. 688; 13 An. 474; 12 An. 76.
    Where the judgment is rendeied on the 27th of May, but not exigible untilabout the 1st of July, and execution issued thereon about the 12th or 15th of September, her judgment will not be invalidated, where the property of the husband was alliu custodiam legin at the suit of the attaching creditors of the husband. 7 R. 74; 10 An. 688.
   The opinion of the Court was delivered hy

Todd, J.

This is an action brought by the syndic of the estates of J. H. Scheen and of Lisso & Scheen, insolvents, to annul an act of giving in payment, executed hy J. H. Scheen to his wife, Mrs. Nancy A. Scheen, on the 23d of November, 1378, and a judgment obtained by the wife against her-said husband on the 27th of May, 1879.

There was an exception filed to the petition, on the ground of its containing conflicting allegations, iu charging thatthe act of giving in payment attacked, was simulated, and if not a pure simulation, it was a fraudulent attempt on the part of an insolvent debtor to give an unfair preference to one of his creditors.

The prayer of the petition was substantially and to the effect that the act and j udgment assailed be declared null and void. This prayer was equally appropriate, whether the alleged nullity resulted from the one cause or the other of those assigned. The object and purpose of the suit was to procure the annulling of the act and judicial proceeding complained of, in order to reach the property of the insolvent debtor. It was an action of nullity, and its prayer determined its character, and was comprehensive enough to justify the decree of nullity asked for, upon either of the grounds urged, in the alternative in the petition.

This identical question was determined in the case of Johnson vs. Mayer, 30 A. 1203, and in the reasons of the Court for their conclusion upon the question involved, we quote the following:

The next plea filed by defendants, was one to compel plaintiff to elect between the two grounds of his demand, to-wit: Simulation and fraud on the ground that they are inconsistent. * * * We see no inconsistency in saying that a sale is simulated, and if not simulated, that it is fraudulent. It is very like claiming a right by two titles. * * * When sales are attacked by direct action, there is no reason why the party may not demand relief from them by alleging simulation, or fraud, or both. We are not disposed to hamper the remedies of creditors by doubtful technicalities. In the class of cases now under consideration, the widest latitude should be given them, for they are necessarily, to a great degree, uninformed as to the precise relation existing between their debtor and his coadjutors in wrongdoing. Often they are compelled to strike in the dark. If the purchaser’s title is an honest one, it is better for him that the double test be applied, in one, instead of two suits.”

This decision, and the reasoning by which it is supported, meet our hearty concurrence.

The exception was, therefore, properly overruled.

Another exception pleaded by the defendant, was, in substance, that the. acceptance of J. II. Scheen, the insolvent, surrender, and the participation in the proceedings thereunder by his creditors, and the election of the syndic by them, debarred the latter, as their representative, from objecting to the schedule of the insolvent, as to the debts included therein, and to claiming property as belonging to his estate, not placed in the schedule.

There is no force in this exception. The surrender upon the formal showing, made by the insolvent, -was accepted by the Judge for the benefit of the creditors. R. S. Sec. 1789. And the appointment of the syndic, like that of an assignee in bankruptcy, so far from committing the creditors to the correctness of the schedule, and precluding them or their representative from seeking to amend or change it, was but a preliminary step to the regulation and adjustment as between the insolvent and the creditors, and among the latter, inter sese, of all matters embraced in the surrender, and reported in, or pertaining to, the schedule submitted.

On tjie Merits.

I.

As to the act of elation enjpaiement, whose nullity is demanded.

It was passed on the 23d of November, 1878, and purports to transfer to Mrs. Seheen, the wife of the insolvent, a large part of his real estate, in the Parish of Red River, consisting of many tracts of land and town lots, in Coushatta. The consideration of this transfer, as declared in the acts, is one-half interest in the commercial partnership of Sclieen & Bradley, which had been carried on at Sparta, in Bienville Parish, and which it was-stated that Bradley, who ivas the father of Mrs. Seheen, had given her, and which was valued at $10,000. There was no inventory of the assets of this partnership accompanying the act, and no specific description of what stock or property, rights and credits, belonged to the partnership. Bradley, the alleged donor, was no party to the act, and apart from the bare statement of what constituted the consideration of the elation, there was no evidence of the gift, nor even of the existence of such partnership. Subsequently, Mrs. Seheen, in a suit for separation of property against her husband, valued this partnership interest at $15,000, which she claimed as a debt against him, but it was disallowed by the Judge, although not opposed, as the defendant therein made default, and no appeal was taken from such rejection of the claim; and in fact, the claim, bearing upon its face its fictitious character, seems to have been abandoned on the trial of the suit in question, and in this Court no claim whatever is made to the reality of this particular consideration, or of its constituting a charge of the wife against her husband, but the act in question is defended entirely on other grounds, which we shall hereafter refer to.

Article 1873, Civil Code, declares : “An obligation without a cause or with a false cause, can have no effect.”

In the case of Halsted vs. Noble, 1 A. 192, commenting on this Articles Eustis, C. J., uses this language :

But when an engagement or consideration, or, what is the same thing, when the cause for which it was contracted was false, the engagement is null, and the contract based on it also null, and cannot be enforced by an action.”

The word cause, as used in Art. 1873, referred to, and almost universally by civilians, is synonymous with consideration. In the present case, there cannot be a doubt that the cause or consideration, as set forth in the dation en paiement, was in fact no legal consideration, or was, in the language of the Article, a false cause. The act would, therefore, incur the penalty declared against it in the Article, and be without effect,” unless saved by a subsequent Article of the Code, 1900, which is cited and relied on by the defendant’s counsel, and which is in these words:

“ If the cause expressed in the consideration should be one that does not exist, yet the contract cannot be invalidated if the party can show the existence of a true and sufficient consideration.”

To give this Article the meaning contended for by the counsel, would make it completely unsay all that is declared by the previous Article, first quoted. That is, that although a contract sets forth a particular consideration, that notwithstanding the absence or the falsity of such consideration, that it can be maintained, if it can be proved that there existed between the parties another consideration, which might have been made the consideration of the contract, although such consideration had no connection whatever with that expressed, and was one which the parties never contemplated at the time.

We cannot accept this construction and assent to the proposition involved in it. We have closely considered the Articles and compared the two, and attentively examined all the authorities cited by counsel in support of their views, and others bearing on the point, and we find no conflict between the two Articles, and no difficulty in discovering the true meaning of the last cited to be, that where there is a. real consideration for a contract, and there must be such a consideration in all valid contracts, yet if that consideration is described in the act as one thing, but, in fact, is another thing, which the parties contemplated at the time, in connection with each other, and merely called the one for the other in the act, the act is valid, and to support it the consideration may be explained by evidence. For instance, a sale is declared to be made for cash, in fact it is not made for cash, hut for a debt owing by the vendor to the vendee, and which was of the same amount, and represented the cash expressed, or where it was for so many bales of cotton, or so many hogsheads of sugar, or other thing, which the parties valued at so much cash, and expressed such valuation in the deed; But it is needless to illustrate further. Our views are confirmed, as to this particular contract, by its very nature, and the legal requisites that are essential to a sale or giving in payment, and enter into their definition. To he valid, there must, in such contracts, be a thing, a price or consideration, and consent.' And there must be a consent, an aejgregatio inentiiem, both as to the thing- and the price or consideration. If the thing conveyed was that which both, or either of the parties was not thinking about, ot had not in their minds at the time, or the price or consideration stipulated, and which they had exclusively in contemplation at the time, had no existence or was false, then the contract, in either case, was void. And no other thing, afterwards thought of, and no other consideration which they might have made the price or cause of the contract, will ever re-habilitate it or cure the nullity.

The expression in the act, referred to by defendants’ counsel, as enlarging its scope, and as confirming their construction of it, to the effect that the elation, or transfer in question, was to satisfy, pro tanto, the paraphernal claims of the wife, so from having such a tendency, would more properly seem to confine the consideration of the act to that speci (really named, and exclude the idea of any other consideration; it was as much as to say, this settles the partnership interest of the wife, valued at $10,000, but leaves intact all other paraphernal claims which are not trenched upon by this transaction. For these reasons, and after a thorough and prolonged study of the question, and of all the law and the facts bearing on it, we are forced to conclude tjiat this act of giving in payment was null and void, and without effect as to the creditors of J. H. Scheen.

II.

In relation to the judgment of separation of property between Mrs. Scheen and her husband, the conclusion we have reached upon one feature of the case, bearing oii this branch of it, dispenses us from the necessity of discussing the voluminous evidence in the record, introduced with reference to the claims of the wife against her husband, and which the judgment recognizes. Granting that the evidence justified-the judgment, upon which we express no opinion, under our construction of the law applicable to the point in question, there was not that compliance with the legal requirements, touching' the execution of the judgment, that were essential to give it full operation and effect. It is not the judgment itself that produces the separation of property, but the fulfilment of the conditions that must follow its rendition.

What those conditions and requirements are, are sot forth in no doubtful terms by Article 2428 of the Civil Code, which reads as follows:

“The separation of property, although decreed by a court of justice, is null, if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide non-interrupted suit to obtain them.”

This language is so plain and unambiguous, that it seems almost impossible that it should become a subject of doubt or of varied construction.

One of the earliest cases in which the Article received judicial construction was that of Bertie vs. Walker, sheriff, 1 R. 431. In the opinion of the Court, delivered in that case, we find the following language:

As relates, however, to the execution of the decree by j udicial proceedings, it may well be that an unusual delay or interruption would be fatal to the wife. The decree of separation, whatever may be its terms, does not render the parties separate in property; it entitles the wife to a separation, but the right vanishes, if not followed by a prompt and bona fide execution of the judgment. It is all important for the protection of the creditors of a married man, under a system of laws like ours, that these requisites of the Code should be rigorously insisted on. Decrees of separation are not unfrequeutly made a cloak to screen the property of the husband from the pursuit ■ of his creditors. The tardy attempt to execute the decree of separation, several months after the seizure, cannot affect the rights of the judgment creditors.”

In the case of Nachman vs. Leblanc, 28 A. 346, the doctrine of the case just cited was re-affirmed, and in that case the Court used the following emphatic language:

After quoting Article C. C. 2428, they proceed: For obvious reasons this bona fide non-interrupted suit to obtain payment and satisfaction of the wife’s j udgment is imperative, and nullity results from its non-observance. Here eleven months elapsed after the rendition of the plaintiff’s judgment against her liusbaud, before any move of any kind was made to enforce it. There is no reason why the dation enpaiement could not have been made at once, or at least in a briefer period of time than eleven months, we cannot but conclude with the Judge a quo that through her laches, in failing to comply strictly with the law requiring prompt and continuous effort to enforce the payment of her judgment, it had become null,” etc.

These decisions meet our approval, and are really nothing more than a reiteration of the plain words of the Code.

We have been referred to the cases of Cormier vs. Ryan, 10 A. 688, and of Bird vs. Duralde, sheriff, 23 A. 322, as offering a more liberal construction of the Article in question.

In the first case, the delay in issuing the execution was from the 14th of November to the 10th of March following. There the wife acquired certain property in her own name, after obtaining judgment, which was seized for the husband’s debts, and from reading the decision, it is plain that the Court was governed largely in its conclusion by the fact that is unquestionable, that the property in qirestion was acquired by the separate means of the wife.

In the other case cited, three executions issued; the first soon after the rendition of the judgment, a.nd were followed by seizures and sales of property, by which it appears that all the visible effects of the husband were exhausted, and the language of the Court, which the counsel construe as favorable to their position, had reference to the delay that followed the last execution.

If these decisions can be construed as sanctioning the departure claimed, from what we deem the plain and imperative requirements of the law, as determined and interpreted by the decisions we first cited, we cannot follow them. The privileges conferred oir married women by these and similar provisions of our law, were conferred for the beneficial purpose of protecting their just rights from the claims of the husband’s creditors, when misfortune and embarrassment has overtaken him. They are ample for the protection of their just rights, when fairly and honestly construed, but they have been, and can be made, the moans of inflicting great wrong upon the rights of others by a loose, perverted and vicious construction. These privileges, conferred by the provisions mentioned, are of an extraordinary nature, and under our jurisprudence, except married women from the operation of those laws which forbid the insolvent debtor from giving an unfair preference to, or upon his property, and they are in derogation of the rights of other creditors. The laws that entitle them to the enforcement and full functions of these privileges, should be strictly construed and not enlarged by implication.

But in this case, we are asked to go farther than the decisions referred to by counsel, or any other decisions of this Court have ever gone, in interpreting the requirements of the Article referred to, and sanctioning a less strict compliance with them than any of the cases present.

In the instant case, the judgment of separation was rendered on the 27th of May, 1879. The only execution that was ever attempted to be executed, or under which a seizure was made, or that was ever returned into court, was issued on the 8th of April, 1880, eleven months after-wards, and directed to the sheriff of Bienville Parish. It is true that in September previous, a similar writ had been issued and similarly directed, but no attempt was made to execute it, and it was lost or mislaid by the sheriff. This neglect was not because the debtor had no property subject to the writ, for, as shown by the return of the sheriff, on the second writ and otherwise, he had a large property in that Parish, (Bienville).

In the Parish of Bed Eiver, where the judgment was rendered and the debtor resided, no execution issued at all, although the property, rights and credits of the debtor in that Parish when the judgment was rendered, and after that, amounted to many thousand dollars, more than enough, according to the estimates of the debtor and others, to satisfy the judgment — property and assets, to which, or upon which the counsel contend with much earnestness, that Mrs. Scheen’s recorded judgment gave her superior rights over his creditors who had attached it.

Scheen made his surrender on the 8th May, 1880.

In the hice of this showing, it cannot be said, nor is it pretended that the judgment was ever executed by the payment of the rights and claims of the wife by an authentic act, as far as the estate of the husband can meet them.” And how can it be said that it was “ executed at least by a Iona fide, non-interrupted suit to obtain her rights or realize her claims.” We cannot say so. Tim judgment was null for noncompliance with these requirements. The law so declares it.

Whatever claims Mrs. Scheen may have against her husband, J. H. Scheen, are reserved to her, with the right to prosecute them in such mode and manner as the law may provide.

It is, therefore, ordered, adjudged and decreed,.that the judgment of the lower court is annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is further ordered, adjudged and decreed, that the actof dation en paiemmt passed between Mrs. Nancy A. Bradley, wife of J. H. Scheen, and her said husband, on the 23d of November, 1878, and the judgment of separation of property between said parties, rendered on the 27th of May, 1879, attacked in this suit, be, and the same are hereby declared null and void, and that the property embraced in the said act of the 23d of November, 1878, bo decreed to belong to the estate of J. H. Scheen, insolvent; the costs of both Courts to be paid by defendants.

Mr. Justice Levy recuses himself, having been of counsel.

Dissenting Opinion.

Roché, J.

I dissent from the opinion of the majority in the disposition made of defendant’s exception to plaintiff’s petition joining two inconsistent pleas.

In my opinion, the revocatory action, which rests on the ground that the eontraet complained of is a real contract, followed by civil effects, is essentially distinct from, and inconsistent with, the “action en declaration de simulation,” which carries the idea that the act complained of is nothing, and could produce no effect.

I, therefore, think that the judgment of the lower court should have been reversed, for the purpose of maintaining defendant’s exception. Erwin vs. Bank of Kentucky, 5 A. 1; Brown vs. Brown, 30 A. 1966.

For these reasons, I take no part in the opinion and decree rendered in this case on the merits.  