text:
    The Planters Bank v. Bass.
    The Supreme Court may make new parties in cases pending on appeal, whenever it becomes necessary to do so, from the death, insolvency, or bankruptcy of a party, or in consequence of the forfeiture of its charter by a litigant corporation. The power to do so is indispensable to the exercise of its appellate jurisdiction, and is not prohibited by art. 63 of the con siitution, which declares that the jurisdiction shall be appellate only. When, in the exercise of this power, a contest arises as to facts, the ascertaining of which is indispensable to the action of the court, the issue should he sent down to he [tried by the court of the first instance; hut when the question is one of law, it would he idle to remand the case.
    Where a judgment of the highest tribunal of another State, has declared a statute of that State to be unconstitutional, the question of its Jconstitutionality will he regarded as settled.

      Trustees, appointed under a law of another State to take charge of the assets, collect the debts. &c. of a dissolved corporation, may sue a debtor of the corporation in this State.
    The small excess of interest gained in calculations of interest, by considering the year as consisting of only 360 days, is not usurious.
    In an action against the endorser of a note protested’ in another State, the testimony of the notary by whom the protest was made, or that- of other witnesses, will be admissible to prove the fact of his being a notary. Per Curiam: The strong presumption arising from the undisturbed exercise of a public office that the appointment to it is valid, renders it, in general, unnecessary to prove the written appointment of public officers. All who are proved to have acted as such are presumed to have been duly appointed, until the contrary appears. There is an exception to this rule, whore the officer, being plaintiff, avers his title to the office, or the mode of his appointment.
    Where in an action by a bank established in another State, on a note discounted by it and payable at its office, it is proved that the notary by whom the note was protested had died before the trial, and that he was the agent usually employed by the bank to make demands and give notices of protest, the protest made by him will be admissible as a memorandum of his acts, and will be evidence of them.
    Notice of protest to an endorser residing in a parish in this State,addressed to him at the post-office nearest to his residence, though in another State, in the absence of any proof of his being in the habit of receiving his letters and papers at a more distant office, is sufficient, though his domicil be not mentioned in the address.
    APPEAL from the District Court of Concordia, Curry, J. The facts of this case are fully stated in the opinion of the court, infra.

      JR. N, and A. N. Ogden, forthe plaintiffs.
    1. As to the right to make parties, see C. P. 903. 3 Wendell, 667. 21 lb. 253. 10 La. 437. 6 Wheaton, 260.
    2.The question involved in the exception to the deposition of the notary, on the ground that his capacity as notary could not be established by his own evidence, and that his commission, as the best evidence, should have been produced, was settled in Las Caygas v. Larionda’s syndics, 4 Mart. 287. See also Jacob v. United States. 2 Brock. C. C. R. 520. 2 Peter’s Dig. 218. “ A memorandum made by a person in the ordinary course of his business, of acts which his duty in such business required him to do for others, is, in case of his death, admissible evidence of acts so done.” A fortiori the acts of apublic officer are so admissible. Nichols v. Webb, 8 Wheat. 326; 5th Condensed R. 521. Welsh v. Barnett, 15 Mass. R. p. 380.
    3.The notice to the endorser -is objected to on the ground that it was not directed to him at his domicil, and the case of Duncan v. Sparrow is relied on as authority. That case is not authority. If authority, it can have no application to this case. We rely on long and well established usage,and on the rules of commercial law. Rodney was proved to be the nearest post-office to the residence of Bass, and the notice was properly sent there. Harrison v. Bowen, 16 La. 282. Follain v. Dupré, 11 Rob. 454.
    4.It is not necessary that the notice should contain a formal allegation that payment was demanded at the elected domicil of payment. It is sufficient that it state the fact of non-payment of the note, and that the holder looks to the endorser for indemnity. Mills v. U. S. Bank, 11 Wheat. 431.
    5.The defence of usury, on the ground of excess of interest of $13 34, on a loan of $20,000, can have no weight. The Supreme Court of Mississippi, on this very note, in a suit against another endorser, overruled that defence. Planter’s Bank v. Snodgrass, 4 Howard’s R. 573. To constitute usury there must be an intention to take usurious interest; a corrupt agreement will not be enforced. Bank of the United States v. Wagner, 9 Peter, 378. The mode of calculating interest was adopted by the bank for convenience, and has been long sanctioned by universal usage. The case from Howard is conclusive on the point. See also Walden v. City Bank, 2 Rob. 197.

      Stacy, Sparrow, and Prentiss, for the appellant.
    1. This court, having only appellate jurisdiction, cannot determine originally the question of the right of the trustees to make themselves parties. Oakley v. Phillips, 6 Mart. N. S. 306. Baron v. Kingsland, 5 La. 379. Taylor v. Jeffries, 10 La. 438. Brown v. Williams, 12 La. 614. Stale v. Bermudez, 14 La. 481. Sess. Acts of 1846, p. 161. 2. The trustees cannot make themselves, or be made, parties. G Binney, 359. 5 Cranoh, 287. 12 Wheaton, 361, 1 Hav. & Mcl-I. 23G. 2 lb. 463. 2 Johns. 3. 20 lb. Story’s Confl. of Laws, § 565. Taking them as administrators appointed in Mississippi, they cannot sue here. Story’s Confl. of Laws, § 512, 513. 4 Mart. 571. 16 La. 670. 8 La. 508. 9 Wheat. 565. 6 Smedes & Marshall, 529. 3. There is no proof that payment of the note' was demanded at the place of payment. The notarial protest, if legal and regular, makes no proof of demand of payment. Waldron v. Turpin, 15 La. 554. H. & H.’s Digest, p. 609, sec. 33. The alleged protest is not authenticated in the manner required by the laws of Mississippi. Tickner v. Roberts,-11 La. 16. H. & H.’s Digest, p. 434, sec. 36. Parol evidence was improperly admitted to prove the capacity of the notary. It should have been proved by the certificate of the governor, under the great seal of the State. 3 La. 148. 13 lb. 284, 3G2. The protest is not admissible as a memorandum of a deceased-person, to make proof of the demand. By the laws of Mississippi (H. & H.’s Digest, p. 609, s. 33), notaries are bound to make out and certify on oath true .records of their protests and ñotices. Hyde v. Planters Bank, 17 La. 563. 4. Notice of protest was insufficient, being directed to Rodney, Mississippi, and not to the parish of Concordia, the domicil of Bass, the endorser. Duncan v. Sparrow, 3 Rob. p. 164. 5. The contract between the bank and the-makers of the note, by which the former discounted the note, was usurious and void. By its charter the bank was allowed to take, on notes like this, interest or discount at the rate of seven per cent per annum only. This note had eight months to run. The interest or discount on it for that time, with the three days grace added, was $955. The amount of interest taken or reserved was $968 34, being an excess over the legal rate of $13 37, and making arate of seven and one-tenth per cent per annum. The bank obtained this excess, by calculating interest according to Rowlett’s Tables,which make the year as 360'days; a month as 30 days, &c. The bank knew that the mode of calculation of interest systematically adopted by it, gave more than'the legal rate. It acted Under a full and correct knowledge of the facts. This is sufficient evidence of a corrupt intent, and constitutes the crime of usury. Maine Bank v. Butts, 9 Mass. Rep. p. 48. Marsh v. Martindale, 3 Bosanquet & Puller, p. 154. Bank of Utica v. Wagner, 2 C'owen’s Rep. p. 769.-Bank of Utica v. Smalley, 9 lb. 779. N. Y. Firemen's Insurance Company v. Ely, 9 lb. 704'. Barnard v. Young, 4 Randolph, pp. 406, 411. 17 Vesey,. p. 46. The effect of usury is to avoid the contract, so that no recovery can be had. Bank of the United States v. Owens' et al., 2 Peters,, p. 538.-
   The judgment of the court was pronounced by

Slidell, J.

In the year 1836, the plaintiffs brought suit upon a note for' $20,-000, against Elias Bass, as endoi-ser, who died pending, the action ; his-widow was made party in his stead, and, in 1842, a judgment was rendered in-favor of the plaintiffs. In 1843', an appeal was taken by the defendant. After the case came to the Supreme Court it was set for argument, heard, and taken-under advisement of ou-r predecessors; but not having been decided, it was again setfor argument before this court. When called for argument the appellant placed on record a suggestion and plea, t-o the following effect :■ That since the appeal was taken, the charter of the plaintiffs had been adjudged by tile High Court of Errors and Appeals of the State of Mississippi to be forfeited';' that the said corporation was declared dissolved, and was perpetually enjoined-from further exercising any of the franchises, liberties and privileges conferred by said charter, in proof of which was exhibited a duly certified copy of the-suit and judgment of forfeiture, Which was pleaded as a perpetual bar to the-further prosecution of this suit : That the trustees appointed to liquidate the affairs of said dissolved corporation by the Circuit Court of Adams county, upon pronouncing said decree of forfeiture, are deprived and divested of all legal1 authority to sue for or collect any debt due to the said Planter's Bank. That the only power they possess is to sell, under an order of court, all the properly and evidences of debt heretofore belonging to said bank, and which have come into their possession. In proof of which they exhibit to the court an act of the legislature of the State of Mississippi, approved Feb. 28th, 1846, entitled “ An act to amend an act entitled an act to prescribe the mode of proceeding against incorporated banks for a violation of their corporate franchises, &c., approved July 26, 1843,” which act so amended is also exhibited. That the appellant pleads the above statutes in bar of any prosecution of this suit by the trustees so appointed. It was further pleaded that any authority conferred upon the trustees, either by the acts of the legislature or by the court of that State, is strictly territorial, and cannot be extended or recognised without the limits of the jurisdiction of that State.

Thereupon the trustees, Galbraith Sf Cooper, appointed by the court in Mississippi, entered their appearance in this cause, and filed a petition praying to be permitted to become parties to the suit. At the same time and by the same counsel, an appearance was also entered for Walworth, Montgomery, and Mandeville, who claimed to be owners of the debt due by the defendant by virtue of a deed of assignment and trust, said to have been executed by the Planters Panic to them, in trust for creditors, prior to the decree of forfeiture. These last named trustees we shall at present leave out of view.

The petition of Galbraith Sf Cooper having been filed, the appellant filed an answer, in which he reiterates the matters pleaded in the suggestion and plea above stated, and asks that the cause be remanded to the District Court for the trial and decision of the issues thus presented. He contends that this court has no right to consider them originally.

There is no doubt that this suit belongs to that class of cases in which our jurisdiction is appellate only. Constitution, art. 63. It is also true, that all the matters presented by the suggestion and plea of the appellant, and by the petition of the trustees and the answer made to it, are new matters, and which have never been submitted to the consideration of the inferior court. The controversy in question has originated in the appellate tribunal, and the principle is undoubted that, by virtue of our constitutional powers as an appellate court we cannot create a cause.

There are, however, some subjects which an appellate court can take cognizance of, and act upon, originally. They are those which are indispensable to the exercise of its appellate jurisdiction. Of these the one of most frequent occurrence is that of making new parties, on an appeal pending, in case of the death of a litigant. AVithout proper parties a case perhaps cannot, or at least ought not to, be heard; and were there no means of making them, the appellate functions of the court would be airested on the one hand, while on the other hand the cause Would remain withdrawn by the appeal from the jurisdiction of the inferior tribunal. Our legislation on this subject is very meagre; but what we have is inconsistent with the idea that an appeal abates by the death either of the appellant orthe-appellee. Although but a single case is expressly stated in the Code of Practice in which the authority to revive is granted, our predecessors appear to have considered the authority as existing inherently in the Supreme Court, by virtue of its constitutional organization and the purposes of its creation. From the earliest existence of a Supreme Court in Louisiana down to the present time, and under both constitutions, the Supreme Court has constantly exercised this power of making parties. It has not been considered as limited to the case of natural death. Syndics, assignees in bankruptcy, commissioners of banks of this State whose charters have been forfeited, have been ordered to be made parties, or permitted by the court on their own motion to come in. In every such case the court has acted on a new matter, and originally ; yet its authority to do so has not been doubted, where the fact was undisputed that the party proposed to be made, or offering to come in, possessed the quality of heir, executor, syndic, &c. This view of the inherent power of an appellate court, as springing from the Dature of its functions and the purposes of its creation, is not peculiar to ourselves or our predecessors. The Supreme Court of the United States, we think, acted under that view of its appellate powers, in the case of Green v. Watkins, 6 Wheaton, 263, and in the rules which it then took occasion to frame to save the dismissal or abatement of writs of error. But when, in the exercise of this power, there arises a contest as to facts, the ascertainment of which is indispensable for the action of the court, then it is the duty of the court to remand an issue to be tried by the inferior court, to the end that the necessary facts may be there ascertained. In the present case, which is to all intents and purposes a question of revival, there is no such contest as to facts. The facts are clear and undisputed; they are those which the appellant himself, who asks the remanding to the inferior court, has placed before us, and which he cannot and does not gainsay. They are, the record of proceedings for forfeiture, the j.udicial appointment of the trustees, and the Mississippi statutes of 2Gth July, 1843, and 28th February, 1846. Upon these we are to determimine whether the trusteees are competent to stand in judgment here, as the legal owners of the claim against Buss, in the place and stead of an extinct corporation, to whose rights of property they claim to have succeeded. It would be an unnecessary and idle form to remand the cause to the court below, for its opinion on a pure question of law.. As well might it be said,, when an executor appears in this court and offers himself as a party to an appeal taken by or against the deceased, and his quality is not disputed, that we should remand the cause to the district judge, to enquire whether an executor duly appointed is capable of representing the succession of his testator. It does not form an objection to our examination of this subject originally, when presented under such circumstances, that in reality it involves and practically determines the future right of the trustees to execute such judgment as we may render. It is true the right of executing the judgment is involved, but it is an unavoidable incident of the question of revival; for it would be a vain thing for this court to render a final decree, if that decree, when rendered, could not be executed.

Are these trustees then competent to have this suit revived in their names, and to stand in judgment as the successors of the bank ? For the proper consideration of this subject, it is necessary to notice briefly the circumstances of their appointment. In July, 1843, the State of Mississippi passed an act entitled, “ An act to prescribe the mode of proceeding against incorporate banks for a violation of their corporate franchises, and against persons pretending to exercise corporate privileges under acts of incorporation, and for other purposes.” The constitutionality of this law has not been questioned in argument, and we have only to consider its meaning and effect.

Under this statute proceedings were instituted against the Planters Bank, which resulted in a decree of forfeiture and the appointment of trustees. These trustees, in obedience to the provisions of the statute, were authorised by the decree to take charge of the assets of the. company wherever the same may be found, either in the hands of the officers of the bank or .its agents, trustees or attorneys, to sue for and collect all debts due to the company, and the proceeds' of the debts when collected and the property when sold to apply, as thereafter might be directed by law, to the payment of the debts of the company. Under this statute and the decree of the court adjudging the forfeiture and appointing the trustees, we consider the trustees as clothed with the legal ownership of the assets of the bank — as the successors of the -bank for the benefit of creditors. Being clothed with the power to sue, they must be considered as authorised to have suits revived in their names; and so the courts of Mississippi have.eonsidered their title and authority, and have repeatedly recognised their right to revive ns may be seen in the very able and unanswerable opinion of Chief Justice Sharkey, in the recent case of the Commercial Bank v. Chambers.

But it is said in argument that, the authority oí the trustees .to prosecute suits, and by consequence to revive for their benefit suits instituted by the bank before their appointment, has been taken from them by the statute of Mississippi of 28th February, 1846 ; that this act applies, by its express terms, to trustees theretofore appointed, and is a positive and inflexible command to the trustees to sell all the assets of the extinct corporation; that the .prosecution of .suits and their collection, in the usual course of law, is inconsistent with this imperative command. When this argument was presented, there seemed to us in the legislation of 1846, much of the hardship and injustice asserted by the .opposite counsel; and we feared that the delicate and disagreeable duty would be unavoidable, of .comparing these two statutes of a sister State, and determinging whether that of 1846, by its conflicting legislation, repealed .certain por-tions of the act of 1843, material to our present enquiry, or whether the act of 1846 was, pro tanto, unconstitutional and void. We have been relieved, since .this cause was taken under advisement, from a duty so delicate and a responsibility so grave, by the decision on the very point, by the highest tribunal of the State whose legislation we were required to interpret. That court, upon an elaborate examination, in the case already cited, and with a logic which seems to us unanswerable, has declared the act of 1846 unconstitutional and void, .so far as it attempted to curtail or impair the rights of the trustees, appointed before its passage under the act of 1843, to prosecute and collect claims due to the bank; and permitted the trustee of the Commercial Bank, on suggestion of the dissolution of the corporation, to revive in his name, as trustee, a suit brought originally by the bank, in which their was judgment for the defendant in the court below, and from which a writ of error had been sued out by the hank, pending which the forfeiture of its charter was decreed. The trustee .then offered in support of his motion, the judgment of forfeiture and his own .appointment, and admitted that he had been ordered to sell under the act of 1846.

Having referred to the decision in that cause, it is not necessary that we should recapitulate at length the reasoning of the High Court of Errors and Appeals of the State of Mississippi; but the following is a brief summary of the opinion: That by the statute of 1843, and the judicial appointment of the trustees under that statute, the debts due to the bank were preserved in full vigor. That the legal ownership of those debts vested in the trustees, but that the property thus placed in their hands was a trust fund in favor of the creditors of the bank, who had a vested beneficial interest in it. That these creditors, having nn equitable interest, had also a remedy in chancery, to compel the trustees to discharge their duty by collecting the debts. That subsequent legislation could not produce a total change in the rights thus acquired by the parties, by taking away entirely the remedy of the creditor, and compelling the trustees to sell their legal title. That by thejact of 1846, these rights were attempted to be swept away. That such attempt was unconstitutional. That therefore that portion of the act of 1846, relating to the sale of the property and assets of banks, cannot operate as to the banks whose charters had been forfeited and trustees appointed under the act of 1843, prior to the passage of the last act. That the motion to revive must consequently be sustained.

But it is contended that whatever rights of revival the trustees might have in Mississippi, they have none here ; that an extra territorial operation of the laws of Mississippi cannot be recognized. The rule adopted by many of the tribunals of this country, that the laws of a foreign country, such as bankrupt laws, &c., whose action is in invitum, cannot operate a legal transfer of property in our country, is a rule which, if its correctness be conceded, is not apposite to the present enquiry, When a contest arises in our forum between one of our citizens, a creditor of the bank, and these trustees claiming title by the operation of the statute of 1843, the decree of forfeiture and their judicial appointment, it will be time enough to consider the rule invoked. Here is no such contest. The parties litigant are the trustees and the debtor. So far as these parties are concerned, the title of the bank has passed to the trustees; and whether it be the legal or equitable title, is unimportant in our forum. In most of the cases in which assignments under foreign bankrupt laws have been denied to give title against attaching creditors, it has been distinctly admitted that the assignees might maintain suits in our courts under such assignments for the property of the bankrupt. See Story’s Conflict of Laws. See also Holmes v. Remsen, 20 Johnson, 267. Milne v. Moreton, 6 Bin. 369. Will anyone say that the rule of comity should be more gracious towards a foreign country, than towards a sister State ? If there be any difference it should be more favorable to the latter, when we consider the fraternal ties which bind the States of this Union together as members of one great political family, and the deep interest which each has in the welfare of the others. When this subject of comity between the States was before the Supreme Court of the United States, in Earle's case, Chief Justice Taney said: “The history of the past, and the events which are daily occuring, furnish the strongest evidence that they have adopted towards each other the laws of comity in their fullest extent.” We 'have always permitted the corporations of other States, who are creatures of the laws of those States, to suo in tho courts of Louisiana ; with what reason can we refuse our jurisdiction to those trustees, who derive from the same source thoir authority to sue? If there were a struggle for priority and preference by a creditor of the bank against these trustees, there might be some plausibility in asking for the application of the doctrine invoked by the appellant : but as this case stands, we are virtually solicited to disgrace the administration of justice in this State, by permitting one of our own citizens, upon a barren fallacy, to repudiate his just obligation.

We are therefore clearly of the opinion that the trustees have the right to be made parties in this cause, and to prosecute it in the place and stead of the ex-itinct corporation ; and shall now proceed to the consideration of the alleged er« i?pi'S j» the judgment of the court below,

It is said that the note on which this suit was brought, was endorsed to, and came into the hands of, the makers, and that this extinguished it as to all the parties but themselves. The allegation in Bass’s answer is a sufficient reply to this defence. He admits that it was discounted by the plaintiffs, and that he endorsed it for the accommodation of the makers, and for the purpose of enabling them to oblain a loan of money from the bank, by way of discount of the note. It is said the bank discounted the note at an usurious rate, having calculated the interest according to Rowlett’s tables, which gave a small excess to the bank. The Supreme .Court of Mississippi overruled this defence, in the case of this same plaintiff against Snodgrass. 4 Howard, 573. It is unnecessary to do more than to refer to the opinion in that case.

The note was payable at the bank’s office at Port Gibson. To prove presentment and demand at the place of payment, a notarial protest was offered. The instrument purported to be signed by one Pope, who styles himself therein a notary public, dwelling in Port Gibson, duly commissioned. This person was examined as a witness under commission some years previously to the trial of the cause, and then deposed that he was a duly commissioned notary at .the date of the protest, and .that he protested the note, as notary, on the day .of its maturity; but he did not state in his deposition the particulars of the de-

xnand. Another witness, examined at the trial of the cause, proves the death of Pope, the genuineness of his signature to the protest, and that he acted during the year 1836, as .a notary ptiblic in Mississippi; that Pope was the person usually employed by the bank to make demands of payment of its notes and bills of exchange, and notify .endorsers; and that he believed him to be regular and correct in his business habits. By the law of Mississippi it appears that the protest by a notary of a bill or note is available as evidence, per se, there, to prove presentment, demand and refusal, as is the like instrument signed by a notary of this State in our courts. The defendant objected to this evidence to prove Pope’s official capacity, and also to the admission of the protest; both which objections the .court below overruled. From the strong presumption arising from the undisturbed exercise of a public office that the appointment to .it is valid, it is not in general necessary to prove the written appointment of public officers. All who .are proved to have acted as such, are presumed to have been duly appointed to office until the contrary appears. There is an exception .to this rule where the officer, being plaintiff, avers his title to the office or the mode of his appointment. See Greenleaf on Evidence, § 92, Las Caygas v. Larionda’s syndic, 4 Martin, 287. In that case a power of attorney executed before a notary in Cuba was offered in evidence, and a witness was offered to prove the signature and capacity of the notary. The court there said, that if the controversy had any relation to his right to fulfil the duties of the office claimed by him, a certificate under the national seal would be the proper evidence, but, for all other purposes, proof of his being a notary de facto would suffice. Upon these authorities we are of opinion that the court below properly admitted the testimony of witnesses to show that, at the date of the protest, Pope was a notaiy public in Mississippi.

Whether after this evidence, and proof also that in the courts of Mississippi the instrument would, per se, have made proof of the presentmentand non-payment, the protest was admissible with the like effect in our courts, is a question not now necessary to be decided. Assisted by proof that the notaiy had died before the trial of the cause, and that 'he held towards the bank the relation of an agent usually employed by the bank to make demands and give notices, wo think the paper was duly received after his death as a memorandum of acts so done, and forms evidence of them. Memoranda of a notary, in a shape less formal than the document in question, were recognised as admissible evidence, in the case of Nichols v. Webb, 8 Wheaton, 326. In that case it would seem from the language of the court that, under the laws of Tennessee, the protest was not an official act, which would have constituted evidence, per se, in a court of Tennessee; yet it was deemed good evidence of the demand, as were the memoranda in the notary’s .hook of notice. See also Chitty on Bills, 642.

Bass lived in the parish of Concordia at the time of the protest, and the notice was seasonably mailed at Port Gibson, addressed to him at Rodney, which was the nearest post office to his residence. It was aJ)out eleven miles from his residence; the Natchez post office was about twenty-three miles from his residence. It does not appear that, at the time, there was any post office in Concordia. There was a memorandum on the note, which the judge below says he ascertained, by comparison of hand-writing with Bass’s endorsement, to be, as to the name, in his hand-writing, in which it was said that “ Bass will acknowledge notice at Rodney post-office ;” this fact of hand-writing does not, however, appear to have been proved at the trial. Aside from this, however, and in the absence of proof that the bank had been notified that Bass usually received his letters at the more distant post office at Natchez, we think the notice was properly addressed.

We find no error in the judgment of the court below.

As to the assignees Walworth, Montgomery and Mand.eville, we have not before us the assignment under which they claim, nor the means of expressing any opinion as to its validity. If they have any rights they can be presented by third-opposition, in the court below.

It is therefore decreed that the judgment of the court below be affirmed, with costs, in the names of the said trustees, James D. Galbraith and William Cooper, as plaintiffs : the said Galbraith and Cooper, trustees, being hereby recognized as the successors of the president, directors and company of the Planters’ Bank of the State of Mississippi, the original plaintiffs in this cause, and, as such trustees, the judgment creditors of the said appellant Sarah Morris, in the place and stead of the said original plaintiffs.


source: Caselaw Access Project

author: Slidem, J.

license: Public Domain

text:
    McKiernan v. Fletcher.
    The registry of an act of sale in tlie office of a parish judge, in the book in which both sales and mortgages were recorded, will preserve the privilege of the vendor, where, at the time of its registry, no separate hook was kept for recording mortgages.
    A purchaser at\a judicial sale of the effects of a bankrupt, acquires no greater rights than the bankrupt himself had in the property sold.
    Defendant sold certain lands, taking the notesof the purchaser for the price, and caused the act of sale to be registered. The purchaser re-sold the lands, and notes given to him for the price were subsequently, on bis application to be declared a bankrupt under the act of Congress of 1841, surrendered to his assignee, and purchased by plaintiff at the sale of the bankrupt's estate. The bankrupt was discharged, though opposed by defendant. Held, that the land not having formed part of the assets of the bankrupt, and bis discharge being merely personal, defendant’s privilege as vendor, which was preserved1 by the registry of the sale, was unaffected.
    APPEAL from the District'Court of Concordia, Curry, J. The facts-of this case are stated in the opinion, infra.

      H. W. Dunlap, for the appellant.
    The discharge of the bankrupt extinguished all debts due by him to creditors who proved or claimed in the bankrupt court. 6 Taunton, 75. 2 Howard, 209. 3 Howard, Christy’s case, p. 308. 5 Rob. 27, 49. City Bank v. Houston, ante p. 114. Cullen on Bankruptcy, pp. 445, 149. The debt being extinguished, the security fell with it; subíalo fundamento cadit opus. Fletcher’s claim was transferred to the proceeds of Green’s assets. When the notes of the Collins, which Were the price of land, were sold, the purchaser acquired the vendor’s privilege attached to them. Fletcher’s claiming under the bankruptcy, was a relinquishment of his lien.

      Snyder, on the same side,
    cited 4 Rob. 5. 5 lb. 49.

      Frost, for the defendant.
    The discharge of Green was merely personal. Act of Congress of 19 Aug. 1841, s. 2. The land was not surrendered by the bankrupt; had it been, the assignee could not have sold it free from the vendor’s privilege. Act of 1841, s. 5. The registry of the act of sale was sufficient. 1 Gill and Johnson, 270. 4 Bin. 148.
   The judgment of the court was pronounced by

Slidem, J.

In January, 1837, Fletcher sold a tract of land in the parish of Concordia, to Soule and Green. In March of that year, Soule sold his interest to Green. In 183-8, Green sold to Bean, and in the same year Bean sold to J. C. and W. C. Collins. The two last conveyances purport to be for cash, and recite the original sale of Fletcher. It appears that J. C. and W. C. Collins executed certain notes, which notes it is alleged were given for their purchase of land; and these notes went into the hands of Green, who subsequently became a bankrupt, and, by the surrender of his assets in the United States Court, they came into the hands of his assignee in bankruptcy, who, under order of court, sold the notes at marshal’s sale, and the plaintiff’ became the purchaser of all the bankrupt’s assets, being a nominal amount of $ , for the sum of $30. Mc-Kiernan then brought suit upon the notes against the maker, obtained a judgment with privilege on the land, seized it in execution, and finding himself embarrassed in effecting a sale, by the outstanding vendor’s privilege in favour of Fletcher for the price of the land, took a rule upon Fletcher and the recorder of mortgages, to show cause why the mortgage in favour of Fletcher should not be cancelled. Fletcher relies, in answer to the rule, on the notes originally given to him for the price, and the registry, in January, 1837, of his privilege as vendor. There was judgment for the defendant Fletcher, and the plaintiff has appealed.

The pretensions of the plaintiff are utterly unfounded. Fletcher’s privilege was preserved by the registry of the act of sale in the proper office. It is ob- ■ jected to this registry that, it was not in a book specially kept for the registry of mortgages. At that time there was no special book for mortgages kept in the parish judge’s office. Sales and mortgages were recorded in the same hook. It was not until some months afterwards that the parish judge began to keep a separate book. While there was but one book kept no person making search in the office could be deceived. It was only when separate books were opened by the parish judge, that parties could be led astray by an improper registry. We have already considered this subject, and see no reason to change our opinion.

But the question of registry is not important in this case. Aside from that, the plaintiff has no color of right. The vendor’s privilege was good against Green, without registry. The plaintiff, who stands before us as the transferee of Green’s rights in the notes of J. C. and W. C. Collins, by judicial purchase, has no greater right's than Green. He represents Green, and the claim to cancel the privilege in favour of Fletcher is' as unfounded as if made by Green himself.

The plainliffcontends that, as Green received his discharge in bankruptcy notwithstanding the opposition of Fletcher, who appeared in the bankruptcy for that purpose, the discharge of his personal liability discharged the vendor’s claim and privilege upon the land. The land was not an asset of the bankrupt, and was never administered in the bankruptcy. The discharge of the bankrupt was merely personal* Judgment affirmed.


author: King, J.

text:
    Dickerman et al v. Reagan.
    íhe separate property of a married woman is liable for debts contracted daring marriage for her individual use, or for tbe improvement of her separate property, or for marriage charges which she is bound by law to bear, though the debt was created while her paraphernal property was under the administration of her husband, and daring the existence of the community of acquets and gains. Art. 2372 of the Civil Code, which declares that debts contracted during marriage must bo acquitted out oí the community property, applies to tire parties alone, regulating their rights, as between themselves, on the settlement of the community.
    The authorisation of the husband is not required to a'cts'of the Wife, necessary in the administration of her paraphernal property.
    Appeal from the District Court of Concordia, Curry, J.

      T. P. Farrar, for the appellants.

      Frost, for the defendant,
    contended that the debt sued for was.one of the community, for which the wife was not liable, citing 7 Mart. 4'63\ 7 lb. N. S. 64. 8 Ib. N. S. 692. 9 La. 583. 10 La. 147. 3 Rob-. 329. 4 Rob. 115, 511* 7 Rob. 257• 12 Rob. 583- The husband was the usufructuary, and, as such,, bound li r the expenses of the property. C. C. 572.
   '1 ho judgment of the court was pronounced by

King, J.

This is an action to render a wife liable for articles of merchandise, alleged to have been furnished for.fhe use of herself, her* family and plantation, during tile existence of’her marriage.. The defence opposed to the demand is, that the prjpertycf the defendant is all paraphernal; that it was under the administration and control of the husband, between whom and herself there existed a com minify of acquéts and gains, at the time that the account was contracted ; an! (hatthe debt is duejiy the'community, and not by the defendant. There was a judgment against the plaintiffs in the court below, from which they have appealed.

The plaintiffs’ account is fully proved, and appears to have been contracted, with the exception of articles amounting to $14 20, for clothing for the defendant, her family and slaves, for supplies of various kinds for the use oí her plantation, and for merchandise purchased by persons who had- rendered services on her plantation, whose accounts were assumed, and whose demands were thus extinguished partially or in full. Some time before the commencement of this suit, the account was presented to the defendant, who admitted it to be correct, and promised to pay it. The plantation and slaves were her separate paraphernal property, to the administration of which she was entitled by law; and, if at any time, she committed the administration to her husband, she could have resumed it at will. The husband appears to have had no pecuniary means. Some of the witnesses state that he had the exclusive control of the defendant’s property ; others, that he managed her affairs as her agent. Whatever may have-been the character of his authority, the defendant could not, by surrendering to him either the partial or entire administration, exonerate herself from liability for debts incurred for her individual use, or for the purpose of rendering her separate property productive, or in supporting those marriage charges which she is bound by law to bear. It is true, that debts contracted during, the marriage enter into the community of gains, and must be acquitted out of the common fund. C. C. art. 2372. But this provision applies to the partners alone, and regulates their rights between themselves, upon a settlement of the community at its dissolution. It has no application to creditors, and does not deprive them of their recourse against the wife, during the marriage, for debts contracted for her separate advantage, and for which she is individually liable.

It is objected that the acknowledgment of the wife that the account was correct, and her promise to pay it, were made without the authorisation of her husband. The authority ot the husband was not requisite to give validity to the acts of the wife, necessary in the administration of her paraphernal property.

By the statute of the State of Mississippi, in evidence, where the debt was contracted, the plaintiffs are entitled to six per cent inteiest. The testimony leaves it somewhat uncertain at what time the account became due. The defendant’s acknowledgment of its correctness was made in 1844, and we adopt the middle of that year as the date when interest commenced to run.

It is therefore ordered that the judgment of the District Court be reversed,- and that there be judgment for the plaintiffs against the defendant Nancy Reagan, for six hundred and ninety-threo dollars and thirty-eight cents, with six per cent interest thereon, from the first day of July, 1844, until paid; the defendant paying the costs of both courts.


author: King,-- J.

text:
    Bacon et al. v. Smith et al.
    When a: negotiable note is endorsed in blank, an action may be maintained on it by the-bolder, in bis own name, though the note be held by him, in fact, as- a trustee. He need not allege the nature of his possession.
    Proof that the amount of a note sued on had been attached by a third- person in the hands of defendant, will not throw upon the plaintiff the burden of showing that the attachment has been discharged. The defendant must prove that it is still in force, if he desires to avail himself of it.
    The* mere announcement by the maker of a note of his readiness to pay, made to the holder, and the refusal of the latter to receive the amount, on the ground that it had been attached at the suit of a third person, is not a legal tender, and cannot stop interest. C. P. 407, 415.
    Appeal from the District Court of West Baton llougo, Burk, J.

      G. S. Laceyrfor the appellants*
    Plaintiffs sue as holders of a promissory noto, endorsed in blank. Banlcs v. Easton, 3 Mart-.-N. S.291 .-Shawv. Thompson, 3 Ib. N. S. 392. They are entitled to interest, there being no legal tended of payment. C.P. 407. G La. 16. Starkie on Ev. p. 107, note q, and p.-1067 note, citing 4 Dallas,-325. Starkie on-Ev. pp.-l059, 1070, nótele.-

    Elamy for the defendants.
   The judgment of the court was pronounced by

King,-- J.

The defendants are sued as the maker and endorser of two pro-' missory notes, and plead in defence that the plaintiffs are not the owners, and-have never had the actual possession, of the notes sued-on ; that-the possession-of the plaintiffs was only constructive, as the assignees of the Bank of the United-States, the actual possession being in W. kk. Frazier ;■ that the notes were attached at the suit of the United States, as belonging to the Bank of the United-States, and thereby taken from-the control of-the plaintiffs; and that by no subsequent proceeding have the petitioners been re-invested with authority to-enforce their payment.- There was a judgment of non-suit rendered in the-court-below, and the plaintiffs have appealed.

The plaintiffs are in-the actual possession-of the notes,-which were produced-on the trial-; and-it has been repeatedly held that the holder of a negotiable instrument, endorsed in blank, as is the case-with those sued on, may maintain an-action in his own name for its recovery. There is no allegation that the transfer to the plaintiffs was not- made in good faith, nor that the- defendants have' equitable defences to oppose to the true owners,-of which they have been ills-gaily deprived. The defendants show-that the notes were regularly assigned-to the plaintiffs as trustees, by the Bank of-the United States, and that-they have-been notified to pay them to no other person than to the plaintiffs, or their attorney, Frazier.- It was not-necessary that that the plaintiffs should have averred that they held-the notes as trustees, if such be still the-nature of their-tenure.- Their possession is sufficient to authorise the action.- It- appears that-the defendant, Smith, offered to pay the amountof the notes to-Frazier, which-the latter refused to-reoeive, stating that the notes had been attached at the suit-of the United States against the bank. It is urged that the plaintiffs have not shown, that the notes havebeen liberated from the attachment; and that-this offer-to -pay- relieves the defendants from the payment of interest. It was not incumbent on the plaintiffs to show- that the attachment had been discharged, nor that-their capacity to receive had been restored, but it devolved upon the defendants-to prove that the proceeding was still in force, if they desired to avail themselves of that fact in defence. The announcement by- the defendant Smith, of his readiness to pay the notes, was not a legal tender, and had not the effect of-arresting interest. C. P. arts. 407, 415. 6 La. 17.

It is therefore ordered that the judgment of the District Court be reversed. , It is further ordered, that the plaintiffs recover of the defendants, in solido, the' sum' of five hundred' and twenty-four dollars and eighty-eight dents, with ten per centyearly interest thereon, from the 14th day of November, 1842, until-paid; and the further sum of five hundred and sixty-six dollars and five cents, with like yearly interest, from the 14th day of November, 1843, until paid, with nine dollars and sixty cents, the costs of protest. It is further ordered, that the' defendants pay the costs of both courts.


author: Eustis, C. J.

text:
    Mulford v. Wimbish.
    Actions-to rescind or annul agreements on account of error, fraud, or 'violence, are prescribed only by ten years; to be calculated, in cases of error or fraud, from tbe day on which either was discovered, and, in.cases of violence, from the day on which the violence ceased. C. C. 2218. Article 3507 of the Code applies only to cases not included in art. 2218.
    APPEAL from, the District Court of WestFeliciana, Burk, J,

      Ratliff, Muse and Merrick, for the plaintiff.
    Prescription commenced to run against plaintiff’s action only from the time when tbe fraud was discovered. -C.C. 2218. The burden of showing when the fraud was discovered is on the party pleading prescription. Gasquet v. Johnson, 2 La. 514. 3 La. -.282. 13 La. 461. Thompson v. Bobddl, 7 Rob. 369. 15 Peters, 554.

      T. G. Morgan, for the appellant,
    contended that the-action was prescribed .under art. 3507 of the Civil Code, more than live years having elapsed since ithe date of .the .contracts which plaintiff' seeks to.annul.

      Paterson, on the same side.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action originally instituted ‘by two of the children .and heirs of the late Sarah Brashear Bingaman against Wimbish, in which recourse is sought against him for having fraudulently possessed himself of the •whole estate of their mother during her lifetime; and it is.cbarged.that, for the purpose of defrauding them., he retained the same after her death, reported her -to have died insolvent, and practised various frauds for the purpose of concealing his doings, &c. There was a verdict for the plaintiff for $3,251 55, with interest from judicial demand; and 'by the judgment of the court, two acts ■transferring property, one dated the 13th of July, 1829, and the other the 4th of March, 1834, were avoided and annulled.

The only point which we deem it necessary to notice is, the plea of prescription filed by the defendant. It is contended that the plaintiff’s action is barred by the lapse of five years, under art. 35G7 of the Code; that the action is based on the frauds alleged to have been perpetrated m .certain contracts, and ■that the prescription invoked applies to them.

We have come to a different conclusion, and consider the prescription applicable to cases of this kind is that provided by article 22 L8. This article relates to the action of nullity or of recision of agreements, and provides that -in ail cases in which either action is not limited to a shorter period by a particular law, it may be brought within ten yeai’s. In cases of error or deception, the time of prescription only commences fi’om the day on which either was discovei’ed; in cases of violence, from the day on which the -violence has ceased.

The prescription established by this article l'eiates to .cases of error, fraud, .or violence in agreements, which are .expressly included in it. If article 3507 .embraced the same class of cases there would be two terms of prescription, applicable to them by the same legislation, in the same Code, and one of these .articles must be to that extent held to be inoperative, as they would be inconsistent with each other.

But we do not give such an interpretation to article 3507. We consider it -applicable only to cases other than those provided for by article 2218, and thus give effect to both articles. It will be observed that such appears to be the .eyident sense of article 2218, which pre-supposes other provisions concerning the prescription against the action of nullity and of recision of agreements than that which it establishes. Article 3507 contains other important provisions, which we do not deem it zzzaterial to the question under consideration to examine.

The conclusion to which we have come, as to the prescription in cases of fraud, is in harmony with the most obvious reasons of justice and sound policy. To enable a party who is in fraud to pz-escribe against the injured party for the time in which he may be enabled to keep him in the dark as to his rights, is to giye a license to deception, and enable the wrong doer to triumph by the continuance of his evil deeds.

On the merits, we think the case is with tho plaintiff.

Judgment affirmed.


author: Rost, J.

text:
    Slattery v. The Police Jury of Concordia.
    Where in an action on a contract made wzth the .commissioners of a particular district or subdivision of the parish, acting under an ordinance of the police jury, for the erection of certain levees, -the evidence shows .that the contractor did not contemplate that the parish shonld •be responsible in-the first instance for the cost of the levées; and ihe failure to obtain payment from the source originally contemplated, is attributable to the negligence of the creditor, the latter cannot recover.
    Appeal from the District Court of Concordia, Curry, J.

      Frost, and II A. Bullard, for the appellant. Poindexter, Stacy and Sparrow, for the defendants.
   'The judgment of the eouz’t was pronounced by

Rost, J.

The petition alleges that James Riley, James Behan, and the petitioner contracted with the .commissioners of the Rifle Point levee district, who acted under an ordinance of the police jury of the parish of Concordia, for the construction of certain portions of the Rifle Point levée, and that said contract was let out, after public advertisements, as required by the ordinance ; that these parties faithfully executed their portion of the contract, and that their work was accepted by the commissioners, in the year 1837; that the said contractors subsequently transferred their claims to JamesR.Kane, which transfer* was accepted by the commissioners, and that said Kane has since re-transferred .those claims to the petitioner, who is now the owner .and holder of the same. The petition concludes with a prayer that the police jury be cited and adjudged .to pay the petitioner the amount of the claim and interest.

The defendants deny all the allegations contained in the petition. They aver .that the commissioner’s have paid to the contractors ezzzployed by them all the moneys to which they were entitled, and plead those payments in compensation .against any amount the plaintiff may show himself entitled to recover from .them. They specially deny the liability of the parish, and plead the prescriptions of one year and of three year’s, and prescription genei’ally. The court of the first instance gave judgment in favor of the defendants, and the plaintiff appealed.

We do not think that tiro plea of compensation, as made by the defendants, admits tlzeir indebtedness. That plea does not contradict the general denial in this case. The defendants admit the liability of the Rifle Point district, and allege payments made by tho coizzmissioners. If they should bo liable them.selves, thosi} payments must necessarily be deducted from the amount of the claim.

For the proper understanding of this case, it is necessary to premise that, the general laws of the State in relation to roads and levées are not enforced in the parish of Concordia. The section of the act of 1829, concerning roads and levées, declares that .the provisions thereof shall not apply to that parish, except such as may be adopted by the police jury, and “that the said police jury shall have plenary and unlimited power to make such enactments in regard to roads ■and levées as they may deem necessary and proper, &c., including the power to authorise the assessment and collection of taxes which they may deem necessary, on the private land claims within any levée district established by them,; to ■cause the expenses of levéeing any public land included in such district, or other necessary work or expenses authorised by any ordinance, &c.”

The grant of these unusual powers appears to have been rendered necessary by the peculiar topography of the parish, and the vast quantity of levées to be made across bayous, and over lands belonging at the time to the public domain. The police juiy, in the exercise of them, have divided the parish into levée .districts, and passed ordinances for the distinct assessment, in each district, of ,the taxes necessary to make and keep in repair the levées thereof.

Those districts were, until the year 1842, represented by three commissioners appointed in each by the police jury, with power to sue and be sued, and to execute the ordinances concerning roads and levées. When the assessments made by them for the erection of levées became final, they were to deliverthem to the sheriff of the parish, who was directed to collect them, and to pay the proceeds into the hands of the parish judge. If the amounts assessed were not paid on demand, it was made the duty of the sheriff to deliver the claims against the delinquents to the judge, who was directed to enter judgments upon them, and to cause those judgments to be satisfied out of the property of the said deli nquents, by preference over all other claims. The ordinance under which the .levée in this case was adjudicated had exclusive reference to the Rifle Point district, and provided for the assessment and collection on the inhabitants thereof ,of a tax sufficient to pay for the work. The contract sued upon was entered into with the commissioners of the district, and the bonds for its performance were given to them. One of them has testified that he never supposed the parish to be bound, and that soon after the work had been commenced, he apprised the contractors of the manner in which they wore to be paid. They^ .appear to have made no objection to this, and, when the work was completed .and they had received a part of the sum due them in the manner contemplated ¡by the commissioners, they transferred the remainder of their claim to James 11. Kane, by an instrument which is in these words ■:

“Natchez, 16th March, 1838.

To Messrs Charles Crosgrove, Walter Byrnes and Tobias Gibson, Commissioners of the Rifle Point levée district, of the parish of .Concordia:

“ Gentlemen :

•“ Please pay to Mr. James R. Kane the amount that may he due us as contractors, for such works as was completed by us upon said levée, upon a settlement of accounts. Respectfully your ob’t serv’ts,

“ James Beahan. his

“ James Jxj Riley.

•“ Witness, James P. Coyle. mark,

•“ James Slatyerly..”

This transfer was accepted by the commissioners in the following words: *' -^■ccePt:e<l> payable to Mr. James R. Kane, from the funds due by the Rifle Point levée district, for labor done by the within drawers, when collected.”

The commissioners delivered to Kane, at his request, all the papers establishing the sums remaining due by the inhabitants of Rifle Point district, and after retaining them six years in his possession, without taking any steps against ■the delinquents, he assigned the transfer he held to the plaintiff, without warranty, and in consideration of the sum of $70. That claim, while in his hands, was payable from the funds due 'by the Rifle Point levée district, and it is not easily perceived how it could give the plaintiff a claim against the parish.

This transfer and acceptance, taken in connection with the ordinance under which the contract was entered into, the testimony of Crosgrove, and the usual and authorised mode of paying for the erection of levées in the parish of Concordia, satisfy us that it was not in the contemplation of the parties, at the time, that the parish should be responsible in the first instance, and that, if any responsibility on their part has since accrued, it must have resulted either from the want of means in the Rifle Point district to pay the consideration of the contract, or from the omissions and negligence of the police jury in the collection of those means. The evidence sustains neither hypothesis.

It was the duty of ICane, after he received the transfer, to throw no obstacle in the way of the collection of the claims in the manner provided by the ordinance. Instead of this he undertook to collect them himself, and appears to have collected a part of them. It has been alleged in argument that he could not collect more, because the debtors refuse to pay on account of informalities in the advertising of the levées by the commissioners. The evidence does not establish that fact, and Kane himself contradicts it. He did not collect more because he did not follow the proper course; he did not cause the delinquents to be sued; and their property to be seized and sold. It is proved that the lands assessed were much more than sufficient to pay the tax, and the mode of collection provided by the ordinance was certain. If that security has been lost, the loss is to be attributed exclusively to the negligence of Kane, for which the police jury cannot be held responsible. Judgment affirmed,,


author: Slidell, J.

text:
    Tucker v. The Agricultural Bank of Mississippi.
    No decision willbe given in an action against an absent defendant, where it does nofc appega* from the Record that the curator acL hoc appointed to represent him had accepted the appointment. Thc.case will be remanded to be tried below contradictorily with the curator ad hoc.

    Appeal from the District Court of Concordia, Curry, J.

      Frost, for the appellant. T. P. Farrar, for the opponents.
   The judgment of the court was pronounced by

Slidell, J.

This litigation cornos before us in a form so irregular, that we are unwilling to express any definitive opinion upon the rights of the parties, find must remand the cause for further proceedings.

The plaintiff obtained an order for executory process upon a judgment obtained in Mississippi. A curator ad hoc was appointed to represent the absent defendants, but Whether he accepted the appointmont does not appeal1. Ho has made no appearance, either in the court below or in this court.

This order of seizure is stated by the sheriff’s return to have been levied on1 three promissory notes, drawn by one Jesse Guice, to the order of the bank, amounting to about §8,000; but it appears from the shei'iff’s testimony that he' never got possession of the notes. Pending the so called seizure,- Brown, Brothers 4' Co. filed a third opposition, alleging that they had a privilege as pledgeesupon the notes, and praying that the proceeds of the sale when made might be' paid over to theirf. They asked the citation of the plaintiff but not of the de-' fendants. The plaintiff accepted service of this third opposition.

Soon after an adjudication-of the Guice debt was made, at sheriff’s sale, to’ James Brown, one of the third opponents, at twelve months’' credit. This sale' seems to have been irregularly conducted. The advertisement, so far as we’ can judge from the return, does not state whether the notes were protested at maturity, a matter of importance with reference" to the question of interest, nor iriake mention of the mortgage by which- they seem to have been secured. The appraisement was made by one appraiser, and the' notes which this appraiser,. ¡named by the plaintiff, had estimated at §8,000 and- upwards, were struck off at $2,020.

After the sale, tie third opposition was tried •without any representation of the defendants. There was judgment for the third opponent; the absent de^-fendants were condemned to pay the costs, and the plaintiff has appealed.

Questions of great importance are presented in this irregular manner. The' validity of a pledge in favor of Brown, Brothers Sf Co., to seeure an indebtedness of §500,000; the constitutionality, and effect, if constitutional, of a- statute of Mississippi, inhibiting the transfer of their assets- by the banks of that State, the validity of judicial sales of credits, belonging to absentees,-in the apparently loose and informal manner already noticed ; and, in the discussion of subjects of so great importance to the absent defendants, they have been entirely overlooked.

The necessity that the bank should be a party to this litigation is too obvious to' require comment, and demands that this cause should be sent back to the lower court to be tore tried in a proper manner. If the curator ad hoe declines the appointment, the court should make a new one.

It is therefore decreed that the judgment of the Courtbelow be reversed, and that this cause be remanded for a new trial, after due citation of the curator ad hoc already appointed,-and for further proceedings according to law; the third upponents paying the costs of this appeal.


author: .Slidell, J.

text:
    Smith et al. v. Smith.
    The privilege given to overseers for their salaries by art. 3184 of the Civil Code, and that for necessary supplies furnished to any farm or plantation, are not included among those privileges which authorise a provisional seizure. A sequestration may he obtained whenever the creditor has a lien or privilege upon the property, on complying with the requisites of Jaw, by previously giving bond, &c. (Act 7 April, 182G, s. fl. C. P. 276); but the writ of provisional seizure is restricted to certain enumerated casos of privilege, and issues without a bond.

      APPEAL from the District Court of St. Mary, Voorhies, J. This was an action to recover the amount of advances made to the defendant in cash, for the payment of the wages of his overseer, and the price of horses and oxen purchased for the use of his plantation, and for necessaries furnished for its use. The defendant’s crop was provisionally seized,on the allegation tfhathe was about to remove beyond the jurisdiction of the court, and that plaintiffs had a privilege on it. There was a j udgment below in favor of the plaintifis for the amount claimed, but no privilege was allowed to them, and the provisional seizure was-set aside at their cost. The plaintiffs appealed.

      Maslcell, for the appellants.
    Plaintiffs are, entitled to a privilege. C. C. 3184. Acts of 1843, p. 44. 6 Rob. 486. A provisional seiiure may be sued out in all cases in which plaintiffs have a privilege, and they are not- bound to-give surety. C. P. 284. 7 Mari. N. S. 154. 5 Rob. 131.

      T. H. Lewis, on the same side. No counsel appeared &2 the defendant.
   The' judgment of the court was pronounced by

.Slidell, J.

This case has been brought before us on appeal tallen by the-plaintiffs, who contend that the court below erred in setting aside a Writ of provisional-seizure', which was executed upon the defendants crop. The crop Was bonded by the defendant.

By a careful examination of the provisions of the Code of Practice, and the-acts amtendatory of it, it will be found that there is a distinction between the-f emedies- of sequestration and provisional seizure. The former may be obtained-by a creditor “in all cases'where he has a lien or privilege upon property, upon' complying with the requisites provided by law.” Act of 7 April;. 1826, § 9.-One of these requisites is the condition precedent, of giviiig a bond to the defendant in the sequestration, with one good and-solvent surety, residing withi» the jurisdiction of the court, in such sum as the court shall determine, to be-responsible for such-damages as the defendant may sustain,-in case such seques-trsition should have been wrongfully obtained. C. P. art. 2Í6. The' writ of provisional seizure is restricted to certain enumerated cases of privilege, which the law seems to have' regarded with peculiar favor, and is perinitted to issue without giving bond. TKe privilege claimed in the present case was that conferred by article 3184 of the Civil Code, and the amendatory act of 1643-. Sess.acts, p. 44. It is not one of the- privileges for which the remedy by provisional seizure is given, and' the proper remedy was a sequestration.

Judgment affirmed*-


text:
    Richardson v. Pumphrey.
    Where* the affairs of a* partnership formed for the purposes of planting- were'exclusively managed by one of the partners, who also aeted as an overseer of the plantation, his failure to keep any regular account of his receipts and expenditures, will not be regarded as* a badge of fraud, the education of such persons not generally qualifying them to do so.
    Where one of the slaves-put into a particular partnership was afflicted, at the time, with w chronic disease, of which he afterwards died, the partnership will not bo chargeable with-the loss. A stipulation in the contract of partnership that, in case any of the slaves should-die, the owner should he paid therefor at the valution fixed by the articles of partnership, does not apply where the slave perishes by the badness of bis quality.
    Appeal from the District Court of St. Mary, Overton, J.

      Maskell, Ma-gill and Muse, for the plaintiff. T. if. Lewis, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This suit is instituted for the settlement of a partnership, entered into in January, 1836, between the plaintiff and the defendant, for the purpose of planting. The plaintiff claims $10,000, alleged to be due him by the defendant for his portion of the crop of sugar and molasses, and for the loss of slaves, who died during the partnership, The defendant denies the indebtedness, and alleges that he is not bound to pay for the slaves of the plaintiff who died during the continuance of the partnership, because they were unsound when they were put into it. The defendant has appealed from- a judgment rendered against him for the sum of $2,097 30, with legal interest from- judicial demand, and he asks that it be amended- in his favor.

The.defendant was thesole manager of the concern, and as he has kept no regular account of his receipts and expenditures, the settlement between him and his partner can only be made by approximation. With men of a different class, we would be disposed to consider the omission to keep books as a badge of fraud ; but it is not so with overseers and persons who follow their avocations. Their edu :ation does not generally qualify them for the' task.

The calculation of the plaintiff’s counsel as to the proceeds of the crops ap pear to us sufficiently accurate, and we will take those proceeds to have been $20,003 57. The defendant has paid plantation expenses amounting to $7,508 03, and the further sum of $800, the value of the slave Viney, who died during the partnership, is, according to the terms of the contract, to be added to those expenses. The. defendant has offered in evidence three notes given by the plaintiff for the price of the land on which the partnership was carried on,, amounting together to $7,400. The defendant had assumed to pay one-half of said notes, but he alleges that he has paid the whole, and claims the amount as a partnership debt satisfied by him. We think he has made out his claim. The notes are in his possession. Win. B. Lewis, who received payment of the' first, states that it was paid by the defendant. The account of Lane, Fontaine Co. shows the second to have been satisfied out of the proceeds of the crops of the partnership, and it is not denied that the defendant paid the last.

The claim of the defendant for overseer's wages was properly rejected. He was bound, under the partnership agreement, to manage tho place himself. The slave Dennard when put into the partnership by plaintiff, was afflicted with a chronic disease, of which he died. He perished by the badness of his quality, and the partnership is not bound to account for the loss. The sums for which the defendant is entitled to be credited, amount together to $15,708 03-, which deducted from the proceeds of the crops as already stated, will leave a balance of $4,295 54, for one-half of which the plaintiff is entitled to a judgment, with interest from judicial demand.

It is therefore ordered that the judgment in this case'be amended; and that the plaintiff recover from the defendant the sum of $2,1-47 77, with interest at the rate of five per cent per annum, from- the 1st April,-1841, until paid, and costs in both courts.


author: Rost,-Jí

text:
    Birdsall, Curator, v. Bemiss et al.
    The tortious conversion of the property of a succession by a commercial firm; Will render the members liable m solido.

    Where the pleadings and evidence are too incomplete to enable tho court to pronounce a final judgment, the Case may be remanded, with-leave to the parties to amend,

      Appeal from the District Court of St. Mary, Boyce, J.

      Dwight, for the appellant. Gibbon, for the’ defendants.
   The judgment of the court was pronounced by

Rost,-Jí

The'plaintiff, in his-capacity of curator of the estate of Wm. S. Barr, claims from the defendants the sum of $3,000, on account of acceptances and'other obligations,-as will be made to appear by reference to their books. The defendant JR. B. Brashear alone answered,- and filed a general denial. Judgment was rendered-in his favor, and the plaintiff appealed. It has been stated in argument that the defendant R. B. Brashear was curator of Barr's succession, and that he took the notes and property-of the succession, and put them jnto the firm of Bemiss, Brashear Sf Cot, of which-he was a partner.

Under the view taken by this- court, in the-ease of the New Orleans Draining Company v. Lizardi et al. ante p. 281, the- tortious conversion of succession property by the firm, would undoubtedly render the members of it liable in so-lido to the plaintiff. But the pleadings and- evidence are too incomplete, to authorize us to render a final’ judgment. The petition gives-no notice to the defendants of the nature of the claim, and he has not had a fair opportunity to' disprove the grave charges which it implies.- We think justice requires that this case should be remanded-,-with leave to both parties to amend.

The judgment is-therefore reversed, andthe’case remanded for further proceedings, with-leave to both parties to amend'; the-defendant and-'appellee pay¿ing the costs of this appeal.


text:
    Brashear v. Hudson, Sheriff.
    Wliei-e a house-audio t', which had been for some time in the hands of the sheriff under seizure, and from which he had received an amount in money for rent, is advertised for sale; and sold " with all the rents and revenues accruing thereon,” the advertisement must be considered as referring to the rents accruing after its date. The purchaser cannot claim the-rent previously received by the sheriff, which was money in his hands to be credited on-the execution. Per Cwriam: 'She object of judicial sales is to convert property into money. The sale by a sheriff of money in his hands under seizure, is a proceeding unheard of.
    Appeal from the District Court of St. Mary, Boyce, J-.

      Dwight, ior the-appellant. Gibbon, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The sheriff of the parish of St. Mary advertised a town- lot to be sold under execution, with all the buildings and improvements thereon, together with all rents or revenues accruing on it. The french advertisement says, “ les rentes el intíríts en provenant.” The lot had been at that time two years in the custody of the sheriff, and he had received rents upon it amounting to $420 28. The lot, together with the improvements thereon, was valued by the appraisers at $3,000; but they took no notice of the rents received by the sheriff. The plaintiff alleges that the property advertised was adjudicated to him by the sheriff for $2,000, and ho now claims from him the amount received for rent previous to the sale, together with twenty per cent damages per annum thereon, for the Unjust detention of that sum. The defendant filed a general denial, and tlie case having been decided in his favor in the court below, the plaintiff appealed.

The plaintiff has not produced the title under which he holds, but he has introduced witnesses to prove its loss, and also that the adjudication was in conformity with the advertisement. '.Supposing these facts to be established, he is not entitled to recover. The sums collected by the sheriff for rents were money in his hands, which he was bound to credit on the execution. The object of ■judicial sales is to convert property into money. But the advertisement and sale by the sheriff of money in his hands under seizure, is a proceeding unheard of.

The advertisements clearly referred to the rents accruing after their date. 'The appraisers understood it so, and took no notice of the back rents.

If the judgment under which the property was sold has been satisfied, the ■ defendant in execution maybe entitled to recover the amount thus received by .the sheriff. The plaintiff .in this.suit has no,claim tP.it.

.Judgment affirmed,


text:
    Nimmo v. Allen et al.
    'fflie title of a person who claims to be tlie owner of property cannot be»contested by one who has no title to it.
    Where the creditors of a vendor wish to annul a sale on the ground of fraud, they must resort to a direct action.
    .A right to be paid by preference out of the property,of an insolvent, must be established contradictorily with the other creditors.
    5By a sale of a plantation with the improvements thereon, .whatever is immovable by. destination or the object to which.it is attached, passes.to the ¿purchaser. .Gathered corn, staves, materials for building which though upon the place and prepared for use have not been actually used, and furniture .not permanently attached.to the house, are moveables, and do .not pass to the purchaser.
    Appeal from the District Court of St. Mary, 'Voorhies, J.

      Dwight, for the appellant. Maskell, Splane, Simon, and Morphy, for the defendants.
   'The judgment of,the court was pronounced,by

Rost, J.

The defendants purchased at a sale, made under execution by the .marshal of the United States, a plantation and slaves with the improvements .thereon, and a sugar mill and kettles then on the land. The plaintiff now claims .from them the restoration of certain moveable property, which she alleges was «taken possession ofby them under that sale, and converted to their use, or the value thereof. The defendants claim title under the marshal’s sale. They .allege that the sale under which the plaintiff,claims is frudulent. and collusive, and to the injury of creditors. They ask to be maintained in their possession. There was a judgment against the ^plaintiff in the .court below, and she has .appealed.

The plaintiff sets up no claim to the land, and the ascertainment cf what passed with it under the marshal’s sale, is the only question presented by thi? .controversy. Unless the defendants have acquired a title to the property .claimed they are without capacity to contest that of the plaintiff, white it is admitted to be valid by Edioard L. Nimmo, her vendor. If that title was made m fraud of the creditors of Edward L. Nimmo, those creditors, or their representatives, must resort to a direct action to set it aside; and if the defendants are entitled, as they allege, to be paid by preference, that right must be established contradictorily with the other creditors of the insolvent. All that was immovable passed to the defendants, under the judicial sale of the laud and improvements.

The Civil Code defines the things, which are immovable by their destination aud the objects to which they are applied. C. C. arts. 4.54, 456, 457, 459. These.dispositions of law include all the articles which the plaintiff claims, except the corn, the staves, and the building materials. These last are expressly-excluded by art. 468 of the Civil Code.

Toullier, commenting upon a similar disposition of the french Code, says ; •“ Les matériaux qui n’ont point encore été employés, quoiq.ue amenés sur 1© lieu, quoique taillés, conserv.ent leur nature de meubles, j.usqu’á ce qu’ils aient été employés etposés dans le batiment.” 3 vol. no. 19. The same rule applies ,to household furniture not attached permanently to the house. In this case no furniture is .claimed except a .stove, which appears to have been attached to the house and in use.

The defendants have acquired no title to the .corn, the hogshead staves, the .covering boards and pickets, the grate bars, the cypress logs, the sugar house frame, the brick, the oyster shells, the coolers, .troughs and the timber for a mill bed, not in use at the time of the sale.

The defendants have converted this property to their own use, and its aggre. gate value is proved to be $566. For this sum the plaintiff is entitled to a j udg. ment, with legal interest from the day of the conversion. See the case of the New Orleans Draining Company v. Lizardi et al., lately determined, ante p. 281.

It is therefore ordered that the judgment be reversed, .and that the plaintiff recover from the defendants the sum of $566, with interest at the rate of five ■per cent per .annum, from the 19th September, 1844, till paid, with costs in ¡both courts.


author: Kins, J.

text:
    Hill v. Bowden et ux.
    'Where a -plaintiff v/ho had obtained judgment against the defendant, appeals from ajudgment in favor of an intervenor, hut executes an appeal bond in favor .of the defendant, the appeal must be dismissed. An affidavit that the failure to make the bond payable to the appellee was an error committed by the clerk in preparing the bond, will not entitle the appellant to ■relief. In sueli a case the clerk acts as agent of the party, and no relief can bo givenagainst bis 'errors or omissions.
    Appeal from the District Court of Madison, Selby, J.

      Snyder, for the appellant. Amonetl, for the defendants and intervenor.
   The judgment of fhé cbi^rt was pronouuced by

Kins, J.

The appellee has moved to dismiss this appeal, on the ground that the appellant lias not furnished the bond required by law. The only appeal iboncT in the record is in favor of nominal parties. There is none in favor of the ■appellee Copley, tlio party really in interest. An affidavit has been filed, stating that a blank bond, signed by the appellant and a surety, was given to the clerk, to be by him properly filled up, and that the latter, through error, inserted in the iblank the names of the nominal,parties, instead of that of the party in interest. It is not the duty ,of the clerk to make appeal bonds, and when he undertakes to prepare them, ho acts only as the agent of the parties, and not in his official capacity. Wo ar.e not authorised to grant relief against his errors or omis.sions in such cases.

Taking an appeal by motion in open court, dispenses with citation of appeal or other notice to the appellee, but not with .a bond in favor of the party against whom the appellant wishes to pi'.osecute his appeal. Such party may insist on a bond, before being compelled to appear in the appellate tribunal and litigate with his adversary. Appeal .dismissed.


author: Kino, J.

text:
    Davis v. Hood.
    Where .the transcript ef an appeal is not filed within three days after the return, and tho failure does not result from any act or neglect of the clerk or other officer, the appeal must be dismissed. Such a ease is not embraced by the act of 20 March. 1839, s. 19.
    Appeal from th© District Court of Carroll, Curry, J.

      Willson, Prentiss, Finney, Stacy and Sparrow, forth© appellant. Thomas, for the defendant.
   Th© judgment of .the court was pronounced by

Kino, J.

The appellee has moved to dismiss this appeal, on tho ground that the transcript was not filed on tho day when it was returnable, nor within three days thereafter. The appeal was made returnable on the second monday of January; no extension of time-was granted for bringing it up, and the record was not filed until the Hth of February following. The transcript was delivered to tho plaintiff in ample .time to have been filed before the day fixed in the order, and appears to have been mislaid, while in the hands of the counsel .or commission merchants of the appellant.

The failure to file within the timo fixed, has not been in consequence of any act or negligence of the clerk or other officer, and falls within none of the provisions of the ae.t of 1839, which authorise us to give relief.

Appeal dismissed,


author: Slidem,, J.

text:
    Barrow v. The Bank of Louisiana.
    Where in a petition for an injunction to stay an order of seizure and sale, plaintiff acknowledges the existence of the mortgage on the land in controversy, bnt pleads and prays, as a third possessor of the land, that the jportgagee may be condemned cuss other mortgaged property, he will not be allowed to amend his petition by dec that the land had never been mortgaged- Such an amendment would be inconsistent ¶ the previous pleadings and the party’s own allegations.
    A purchaser of property, subject to a mortgage duly recorded, and containing the pel non alienando, stands, with regard to the mortgagee, in.the position of the mortgagor, .can make no objection to a seizure and sale by .the mortgagee which the mortgagor < not make.
    'The question whether the directors of a hank, which was .authorised by its charter to lend money upon mortgage on lands only whore they are in a state of cultivation, have exceeded .their authority by making a loan upon unimproved property, is one which concernsthe State and the stockholders only. Third persons cannot set up the objection, that the loan /or which the mortgage was given, b.eingon unimproved property, was illegal.

      The statutes of 25 March, 1831, s. 3, anti of 29 March, 1833, s. 3, are imperative, as to the con. damnation of the plaintiff aud surety to the payment of “interest at the rate of ten per cent a year ou-the amount of the judgment,” on the dissolution of an injunction arresting the execution of a judgment. The court has no discretion as to the allowance of interest.
    Appeal from tille District Court of West Feliciana, Boyle, J.

      Paterson, for the plaintiff. Bowman aud Ratliff, for the appellants.
   The judgment of the court was pronounced by

Slidem,, J.

In the year 1836, the Bank of Louisiana took .a mortgage from one Overlay, upon a tract of land described as follows: “ A certain tract of land and plantation, situated in the parish aforesaid, in Barker’s settlement, on Dry bayou, containing 640 arpents, with the improvements thereon and thereto belonging; bounded on the north by vacant lands, on the north-east and east by lands belonging to William Barker’s estate, vacant lands, and the estate of Joseph Young; on the south-east and south, by vacant lands and Dry bayou ; and on the north-west by vacant lands; being the same tract of land and plantation on which Matthew Joiner lately resided.” The mortgage contained the pact de non alienando.

In 1838, Overlay sold this tract of land .to one Purl, and in this deed the vendor declared that the land was subj’ect to the above mortgage to the Bank of Louisiana. The date of the notarial act of mortgage was recited, and the vendee reserved the right of applying his instalments of price to its payment. Jn the same year Purl sold to Varney, by an act in which the purchaser waives the mortgage certificate, required by the Code to be obtained by the notary. The deed from Overlay describes the land as a tract of 640 acres., or thereabouts, fronting on Dry bayou, &c.; the deed from Purl to Varney describes it as a tract fronting on the river Mississippi, containing 640 acres, •“ being the same bought by Purl of Overlay..”

In 1841, one Slaughter, upon an execution against Varney, caused to be seized and advertised a tract of land described in the marshal’s returns as, “ Varney’s upper Barker place, adjoining the upper side of the Young place, and containing 640 acres, or thereabouts, together with all the buildings and improvements thereon.” In the marshal’s deed the land thus sold is described as a certain tract or -parcel of land containing 640 acres, or thereabouts, lying and being situated in that part of the parish of West Feliciana, known as Barker's settlement, and bounded as follows: “ On the upper or north side, by vacant lands, or lands belougiqg to Wm. D. Ray; on the east side, by vacant lands; on the lower or south-east corner, by the lands formerly owned by Robert Young, deceased, and known as the Young jrlace, fronting on Dry bayou, and lying near the Mississippi river.”

Joiner died before the mortgage was given to the bank. The tract of land on which he once lived fronted on the Mississippi, and was quite dissimilar in form and boundaries to the property in question. The accuracy and correctness, in the main, of thé boundaries set forth in the bank’s mortgage, as compared with those of the laud claimed by the plaintiff, are not questioned by the plaintift, and the evidence in the case satisfies us that Overlay mortgaged, and that the plaintiff bought, the same tract.

The principal argument advanced by the plaintiff, to sustain the injunction taken out by him to restrain the order of seizure by which th.e bank -attempted to enforce its mortgage, is founded on an alleged misdescription in the act of mortgage, to wit, that the land is described as the same tract of land, or plantation, on which Matthew Joiner lately resided-; whereas the evidence adduced at the trial shows, that Joiner never resided on this tract, but on another tract about a mile and a half distant; that the land was not in cultivation when mortgaged by Overbay ; and that one of the boundaries is erroneously stated to- be the lands of William, Barker.

What might be the effect of these variances as against a- subsequent bond fide purchaser, under other circumstances than those presented in this controversy, it is unnecessary now to consider; the plaintiff is completely estopped,.-by his own petition, from raising any such objections. The petition formally recites his chain of title, as above stated, from Overbay, Purl, and-the marshal’s sale, giving the dates of the several notarial acts and marshal’s deed, thus identifying the lands as the same mortgaged to the- defendants; declares that they have been seized at the suit of the bank ; pleads prescription of the bank’s claim ; asserts himself to be a third possessor as regards the bank; declares that, besides the mortgage of the land- so seized, the bank has also-a mortgage upon certain slaves, whieh it should first discuss, and to which discussion he, as a third possessor, is entitled. There is not only no denial that the bank had a mortgage on the land seized, but a substantial-averment that it had such-mortgage ; nor is there an approach to an averment that Barrow, when he bought, was ignorant of the bank’s mortgage..

This petition, so far as the bank’s original right of mort'goge was concerned, should have been dismissed on the party’s own showing. In fact the only possible pretext for an injunction, upon the face of the petition, was the charge of prescription, and the claim of discussion, which we will hereafter consider.

This petition Was filed, and an order of injunction obtained, in December, 1844, but not served on the bank till March, 1845, up to which time the cashier, upon whom it was served, deposes, that he had no knowledge of the order of injunction. ■ After obtaining the order, the plaintiff had a conversation with the cashier, in which he- urged him to have the negroes solid, and on frequent occasions-told him that he would pay the bank’s- debt, if the negroes were' sold. The reason assigned by Barrow was, that the negroes might be carried oft'; an apprehension whieh, it appears, was subsequently realised; the bank, however, declined to enforce a sale of the slaves.

On the 9th of December, 1845, being about one year after the original petition for the injunction was filed, after issue had' been joined' and' the cause fixed for trial, the plaintiff obtained leave, notwithstanding the opposition of the defendants, to file an amended petition, in which he avers that the land seized had never been mortgaged to the bank, and that he had not discovered this fact until the previous day. This amendment should not have been permitted. It was utterly inconsistent with the previous pleadings, and the party’s own allegations.

The party, being fully estopped by his own judicial acknowledgments from disputing the original validity of the mortgage to the bank, it#remains to consider the effect of the refusal and neglect of the bank to enforce its mortgage upon the slaves. The bank held a mortgage, with a pact de non alienando. By reason of this fact, duly recorded, Barrow stands in no better position than did the original mortgagor. Overbay could not dictate to the bank the prior enforcement of its mortgage, by the sale of the slaves; much less avail himself of the fraudulent withdrawal of that portion of the mortgage property. Barrow, claiming title through Overbuys, is precluded by this fact from raising any such objection. See Donaldson v. Maurin, 1 La. 39. Nicolet v. Moreau, 13 La. 315. Murphy v. Jundot, 2 Rob. 379. The plaintiff could have acquired a recourse upon the slaves, by paying the bank, and thus obtaining a subrbgation.

That the bank was required by its charter to loan upon mortgage of improved lands, is an objection which the plaintiff is not permitted to raise. It is a question of duty, which concerns the State and the stockholders. The plea of prescription is not tenable under the evidence.

Under the imperative terms of the aets of 1831 and 1833, we are obliged to grant the defendants in injunction, interest; but considering the indifference they have exhibited with regard to the prompt enforcement of their rights, we shall exercise the discretion-permitted- by the statute, and refuse damages.

It is therefore decreed that the judgment of the court below be reversed ; that the injunction be dissolved, and the defendants permitted to proceed in the execution of the’ order of seizure and sale; and it is further decreed that the defendants recover of the plaintiff, and of David Barrow, his surety in injunction, the sum of $1,015 13, as interest on the amount of the judgment enjoined, from the date of service of the injunction till the dissolution thereof, this day ; and that the plaintiff pay the costs in both courts.


text:
    The Louisiana State Bank v. Haralson et al.
    Where' judgment has been obtained against the maker and endorsers of a note; an agreement to suspend execution for a short time against) the maker, will- not discharge the endoi-sers.
    A judgment is not extinguishedby the lapse of ten years.
    Appeal from the District Court of West Feliciana, Boyle, J.

      Ivor, for' the appellants. Haralson, for the defendants.
   The judgment of the court was pronounced by

King, J.

The plaintiff obtained a judgment against Haralson, as the maker, and Pope and Young as the endorsers, of several promissory notes. AparS of the judgment was paid. Young subsequently died; and the plaintiffs have taken this rule upon his widow and heirs, who have accepted his succession, to show cause why the judgment should not be rendered executory against them, and they be condemned to pay each their virile portion of the debt. In answer to this rule they plead the prescriptions of five and ten years, and further aver that they have bo'en discharged from liability to- pay the debt, by the act of the plaintiffs in granting indulgence to the principal debtor, Haralson. The rule was discharged in the court below, and the plaintiffs liavo appealed.

Upon the judgment obtained by the plaintiffs, an execution was issued against the defendants. “Haralson thereupon requested the plaintiffs’ attornies, by letter, to suspend the execution of the writ for a few days, and promised, if this indulgence were granted, to satisfy the debt. The plaintiffs’ attorneys, upon the receipt of this application, addressed the following note to the sheriff: “ The sheriff will please file this letter, and give a stay of one week or seven days, believing that Mr. Haralson will comply with the promise contained above, and that, if he does, it will be best for the bank.”

This indulgence to the principal debtor, it is contended, has discharged the defendants, whose ancestor was the endorser of Haralson. The authority of the attorneys to grant the delay has been brought in question by the plaintiffs, but it does not become necessary to enquire whether or not they exceeded their powers ; for if the indulgence had been specially authorised by the plaintiffs, still it would not have operated the discharge of the defendants. “Even a valid agreement to give time to the maker, or to a prior endorser, will not discharge a subsequent endorser, or affect the rights of the holder, when the indulgence is granted, or agreed tobe granted,, after such subsequent endorser has been fixed with a final judgment against him on the note, at the suit of the holder.” Story on Prom. Notes, § 417.

The prescriptions pleaded can not avail the defendants. Judgments are not extinguished by the lapse of ten years.

The judgment of the District Court is therefore reversed. It is further ordered that the defendants in the rule pay each their virile portion of the sum remaining due upon the judgment obtained by the Louisiana State Bank against Haralson, Pope and Young, in the suit numbered 464 of the District Court of the parish of West Feliciana; the appellees paying the costs of both courts.


text:
    The Commercial Bank of Natchez v. King.
    Where by making a loan in depreciated bank notes to be repaid at their par valne, the effect of the contract will be to enable the lender to obtain more than legal interest, the contract is usurious.
    The effect of a stipulation for usurious interest must be determined by the law of the place where the contract was made.
    Appeal from the District Court of Concordia, Curry, J.

      T. P. Farrar, for the appellants. Frost, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

This suit is brought upon a note, drawn by the defendant to the order of the plaintiff. It has endorsed upon it a credit, as of January 5th, 1839, of $1,308 72.

The defence rests upon the alleged usuriousness of the contract, and a claim also that there should be a credit for a much larger amount, to wit: the entire proceeds of certain cotton placed by the defendant under the control of plaintiffs, a portion of which the plaintiffs contend was properly appropriated to another note.

The jury found a verdict for the plaintiffs for <¡¡¡1,460 04, with interest from the date of the alleged credit. There is strong reason to suppose that they arrived at this result, by applying the proceeds of the cotton entirely to this note. The evidence on the point of imputation is not satisfactory to our minds; and we think justice requires that this cause should be remanded, that this matter of imputation may be unequivocally ascertained.

The loan being made in depreciated bank notes was usurious. The amount of depreciation of the notes so given below the standard of lawful coin should lie deducted from the face of the note, also the interest embodied in the note. Under the^statute'of Mississippi, where this contract was made, no interest whatever is recoverable upon a contract tainted with usury; and, iu allowing interest, the jury erred.

It is tíierefóré'deereed1 that the judgment of the court below be reversed, and that this cause be remanded for a new trial, and for further proceedings according to law; the defendant paying the costs of this appeal.

      Tho notes wero proved to have been, at the time of the loan, from ten tq tvvelvo per cent below their par value.