text:
    No. 605.
    Jacob Cole, Jr., v. Marcellus Hocha.
    The return of the sheriff on a citation served at the domicile of the defendant must show that the citation and copy of petition were served on a person of lawful age who resides at the dorqicile of the deiendant at the time.
    No valid judgment can be rendered against a party until he has been legally cited.
    from the Eighth District Court, parish of Calcasieu. Bailey, J.

      Louis Leveque, for plaintiff and appellee. George H. Wells, lor defendant and appellant.
   Wyly, J.

The defendant has appealed from a judgment by default made final against Mm in the District Court, parish of Calcasieu.

I. He assigns as errors, apparent on the record, the insufficiency of the citation in not expressing, with certainty, the time within which he was required to answer.

II. Also the illegality of the sheriff’s return thereon, in omitting to state tli at the person on whom lie made the service resided at the domicile ot the defendant.

The citation commands the defendant to appear at the next term of the District Court and comply with the demand of plaintiff “ or file your answer thereunto in the office of the clerk of said court at the court house in the town of Charleston, if fifteen days shall remain between the time of service hereof and said term of said court, but if so many days shall not remain, then in fifteen days from the service hereof.”

We think ihe citation complies with the requirements of the law.

It contains much surplusage, but the defendant is summoned to comply with the demand of plaintiff or file his answer thereto within fifteen days from service. C. P. 179.

The sheriff’s return however, is fatally defective; being a service at domicile it does not state that the person to whom the citation and copy of petition were delivered resided at the domicile of the defendant. C. P. 189 ; 3 A. 130; 16 L. 570, 594.

A default is a tacit joinder of issue based upon the presumed admission of the correctness of the demand ; but a party who has not been legally cited cannot be presumed to have admitted any thing. He is not before the court.

Tho appellee however contends that if there were informalities tho defendant waived them by appearance made in the court a qua.

We find no appearance in the record that would cure a defectivo citation of the defendant.

' All that the record discloses is a.motion to set aside the default on the ground that the defendant had not been legally cited. The court overruled the motion and made the default final. We think the default in this case is illegal, that the defendant was not properly before the court, and that tho judgment should be set aside for an error, apparent on the face of the record.

It is therefore ordered that the judgment appealed from be annulled and avoided, and it is now ordered that this cause be remanded to be proceeded in according to law.

It is further ordered that plaintiff pay all costs.


source: Caselaw Access Project

author: TaliaeerRO, J.

license: Public Domain

text:
    No. 705.
    Succession of John M. Rice, deceased. — Opposition to application for the appointment of Dative Testamentary Executor.
    A power of attorney given by a legatee, residing in another State, to collect a legacy, under a testament made in this State, creates a sufficient interest in said agent an the estate of the testator to entitle him to the appointment of dative testamentary executor. A dative executor will be appointed where it is shown that the executors named in the will have failed to qualify and the interest of the legatees require a representative.
    from the Parish Court of the parish of St. Mary. Sandy, Parish Judge.

      J. G. Oliver & Stmarirait, Gibbon & Wilson, and SeBlanc & Perry, for appellants. S. Oaffrey, pro se, appellee.
   TaliaeerRO, J.

This controversy arises from an opposition to the application of the appellee to be appointed dative testamentary executor of the estate of John M. Rice, deceased.

In August, 1860, John M. Eice, a resident of the parish of St. Mary, being temporarily in the State of Ohio and in declining health, made his will and named as his executors John B. Murphy and Joshua Baker. He made by his act of last will various legacies; among the rest, he gave to the children of his brother, William Eice, living in Ohio, one thousand dollars, and ten thousand dollars to the American Colonization Society. The testator died at his residence in the parish of St. Mary, in December, 1860.

Murphy and Baker, named in the testament as executors, presented to the proper court on the fifth of April, 1861, their petition praying that the will of the decedent be probated, executed and letters testamentary delivered to them. This occurred about the outbreak of the late war which caused a general suspension of business in the courts and no further action, it seems, was ever taken by the executors in regard to the will.

In September, 1867, Donelson Caffrey filed bis petition in tbe District Court of tbe parish of St. Mary setting forth that Murphy, one of tbe executors, was dead, and that Baber, tbe other, refused to act. He alleged that be was authorized by William Eice, father of tbe children, who are legatees under the will, to have the legacy to them of one thousand dollars, paid. He prayed to be appointed dative testamentary executor of the will and for advertisement of his application. An order was rendered for advertising his application. An opposition was

filed to this application by Feliciana Tremble, natural tutrix to her minor son, William W. Eice, sole heir at law of the testator, and in this opposition she was joined by her husband, James Todd, co-tutor to the minor. The opposition set up various objections to the will; that it had not been proved; that it did not make proof of itself — not being a noncupative will by public act; that until the will be proved no action could be taken in regard to the appointment of a dative testamentary executor, and that the act purporting to be a will is without any effect until it be established according to the provisions of law. On the thirtieth of October following, Caffrey filed a second petition in which he sot forth that subsequently to the filing of his first petition he had become empowered to represent another of the legatees, the American Colonization Society. He prayed for the usual orders relative to the proof, registry and execution of the will, and that the opponents be cited, etc.

The will was duly ordered to be executed and recorded, and letters téstame .ary to be delivered to Donelson Caffrey as dative testamentary executor, and the opposition of the tutrix and co-tutor was dismissed at their costs — the costs of proceeding for the probating of the will to be sustained by the succession.

From this judgment the opponents have appealed. A bill of exceptions was taken by the opponents to the admission in evidence of a document copied by the clerk of the Appellate Court of the State of Maryland to be “ a true and full copy” of the act of the Legislature of that State incorporating “ The American Colonization Society ” “ as taken from the original law deposited in and belonging to the office of the Court of Appeals aforesaid.”

To this certificate is appended that of the Governor of the State certifying the capacity of the clerk, “and, as such, keeper of acts and resolutions of the General Assembly of the State,” and that full faith and credit are due and ought to be given to his acts as such. To this certificate is affixed the State seal.

The exception is founded upon the argument that if the clerk of the Court of' Appeals is keeper of the original acts of the General Assembly, he is so by virtue of some law, and the law constituting him keeper is the best evidence of the fact. A document is presented purporting to be an exact copy of an act of the General Assembly of the State of Maryland, certified as above stated, and containing upon it the great seal of the State of Maryland. The act of Congress of May 26,1790, declares “that the acts of the Legislatures of the several States shall be authenticated by having the seal of their resi'ective States affixed thereto.” We think in this case there is a sufficient compliance with the law of Congress, and that the objection was properly overruled. The authorization of the Colonization Society to Caffrev to act in its behalf is fully shown. He therefore shows an interest sufficient to entitle him to the dative testamentary executorship of the estate of Eice. We find no opposition to the application by Baker, the person named in the will as one of the executors. There is no other person contending for the office against the applicant. The opponents show no interest in the controversy themselves — more than two years had elapsed between the termination of the war and the filing of the petition of the applicant and this controversy lasted move than a year in the lower court and yet neither of the persons named in the will as executors have come forward to accept and qualify in that capacity. We think the opposition was properly overruled, and that the judgment was correctly rendered.

It is therefore ordered, adjudged and decreed that the judgment of the Parish Court be affirmed with costs in both courts.


author: Taliaferro, J.

text:
    No. 700.
    Marie Celeste Derby, Widow, etc. v. William Robertson, Testamentary Executor.
    The Parish. Court is without jurisdiction in a suit for a moneyed demand where the amount claimed is above five hundred dollars. Constitution, article 87; Swan v. Gayle, ante. page 478.
    from the Parish Court of the parish of Iberia. JStie, Parish Judge.

      James A. Breaux, for plaintiff and appellee. TJeBlane & JPerry, for defendant and appellant.
   Taliaferro, J.

This suit was brought in the Parish Court of Iberia against the executor of Leonard J. Smith, deceased, upon three several promissory notes, each for the sum of three thousand dollars, with interest, and secured -by mortgage on a tract of land in that parish. The defendant filed an exception to the jurisdiction of the court, which being overruled, he answered, and the ease going to trial, judgment was rendered as prayed for, and the defendant has appealed.

The exception should have been sustained. See the ease of Swan v. Gayle, decided at the late term of this court at Monroe, 21 An. page 478.

It is therefore ordered, adjudged and decreed that the judgment of the Parish Court be annulled, avoided and reversed. It is further ordered that this suit be dismissed at plaintiff's costs.


author: Ludeling, C. J.

text:
    No. 663.
    Achille Bessan et als. v. Alexander Moucheux et als.
    A sold the contents of a coffeehouse to B and C, for which B and C gave each their notes for one-half of the price. B gave a mortgage to secure the whole debt on. his own property, and afterwards, ai’ the maturity of the notes, paid one of them, and made a payment oí one-half of the amount of the other. 0 subsequently transferred his one-hall interest in the coffeehouse to B, for a fixed price. A brings suit by executory process to recover the balance of the outstanding note ; B enjoins on the grounds of cxtiuciion of the debt and mortgage. Held — that the transfer from C to B, of his one-half interest in the coffeehouse was not a datien en paiement but a sale, and that the'property mortgaged not being the same as that sold from one co-debtor to the other, the debt was not extinguished by coniusion.
    from the Parish Court of St. Martin. Gates, J.

      F. Fusilier, for plaintiffs and appellants. Gary & Four net and DeBlane <& Perry, for defendants and appellees.
   Ludeling, C. J.

The plaintiffs obtained an injunction to restrain the defendants from executing an order of seizure and sale. The defendant Moucheux sold to Achille Bessan and Pierre Susena the contents of a coffeehouse in the town of Now Iberia, in i860, for $2500, and the purchasers executed their joint and several notes, each for $1250, and due respectively on the tenth days of January, 1861 and 1862. To secure the payment of these notes Bessan gave a mortgage on property belonging to him. Shortly after the maturity of the first of those notes Bessan paid it, and oa the twenty-sixth day of April, 1862, Bessan paid one-half of the other note.

The order of seizure and sale was issued to enforce the payment of the balance duo on the second note. Of the many grounds alleged for the injunction it will be necessary to notice only one ; that is, was the debt extinguished by confusion or by a datien en paiement as alleged by tbe plaintiffs ?

The other grounds were personal to Bessan, and the judgment in his favor is unappealed from.

The act from which it is inferred that the debt was extinguished was the transfer to Moucheux of the undivided half interest of Susena in the coffeehouse, in April, 1861. The act evidencing this transfer recites that Susena had sold to Alexander Moucheux his interest in the coffeehouse for twenty-three hundred dollars — Uf een hundred dollars cash, and eight hundred dollars to he paid in ninety days. There is certainly nothing in this to indicate a datien en paiement. Nor does the testimony of Bessan himself tend to jvrove a giving in payment. He says, P. Susena a rendu sa part du café á Monsieur Alexander Moucheux, et que Mr. Moucheux avait acheté le café, et qu’el se mettait au lieu et place de Mr. Susena, ct que Mr. Moucheux so rehdait responsable des defies du café, pour toutes les reclamations qu’on penvait avoir contre le café.”

The contract was a sale evidently.

Neither was the debt extinguished by confusion. The property bought by Mouclieux was not the property which was mortgaged to secure the debt due him — nor did he assume to pay the mortgage debt — “ II se rendait responsable des dettes du cafó.” The judgment of the District Court is sustained by the evidence in this case.

It is therefore ordered, and adjudged that the judgment of the court a qua be affirmed, and that.the appellant pay the costs of appeal.


author: Howe, J.

text:
      No. 650.
    Zenon Broussard v. Alexis O. Guidry and Lucien J. Dupre, Administrator, etc.
    Where ono judgment debtor in solido appeals from the judgment without making his co-debtor a party, the appeal will be dismissed for want of proper parties.
    from the District Court, parish of St. Landry. Bailey, J.

      John F. King, for plaintiff and appellee. Moore & Morgan, for defendants and appellants.
   Howe, J.

The judgment in this case was rendered against Guidry, and Dupré, administrator, in solido, upon a promissory note made by Guidry and Cyprien Dupre, in solido.

The administrator alone has appealed, and has not made Guidry a party to the appeal. The court will ex offieio notice the want of proper parties. Swearingen v. McDaniel, 12 Rob. 203 ; Robert v. Ride, 11 Ann. 409; Simmons v. His Creditors, 12 Ann. 755; Gibson v. Selby, 3 Ann. 318; Lobelle v. Lobelle, 5 Ann. 174; Cotton v. Sterling, 19 Ann. 137.

It is therefore ordered that the appeal herein be dismissed with costs.

Rehearing refused.


author: Wyly, J.

text:
    No. 635.
    Joseph Potier v. Isaac E. Thibodeau et al.
    The appeal will bo dismissed where the failure to cite oue of the appellees is imputable to the appellant.
    from Third District Court, parish of St. Martin. Gatos, J.

      Felix & Albert Voorhies, for plaintiff and appellee. BeBlane <£• Ferry, for defendants and appellants.
   Wyly, J.

A motion is made to dismiss this .appeal because all the parties to the judgment have not been made parties to the appeal.

It appears from the record that the codefendant Isaac E. Thibodeau, has not been cited or made party to the appeal: The appellant did not ask that he be cited. The order of appeal was granted on twenty-fourth October, 1866. It was the duty of appellant to cause his appeal to be compelled by citing or causing to be cited the parties to the judgment within twelve months from the rendition thereof. The fault is imputable to him.

It is ordered that this appeal be dismissed at appellants’ costs.


author: Taliaferko, J.

text:
    No. 625.
    Emile Tanneret v. Thomas D. Marshall.
    Delivery is of the essence of a contract of deposit, and \yhoro cotton was to be weighed, no delivery could take place until it was weighed.
    Where the evidence shows that a sum was paid in Confederate notes ior a lot of cotton, no action will lie to enforce the contract for the recovery of the cotton or its value. Constitution, article T¿7.
    from the Parish Court of Avoyelles. Lewis, J.

      L. North Oullom, for plaintiff and appellee. Waddill & JBurbin, for defendant and appellant.
   Taliaferko, J.

The plaintiff sues upon a contract, as he avers, of deposit, alleging that lie left in the month of December, 1863, with defendant as his depositary for storage and safe keeping, forty thousand pounds of lint cotton; and that having the bagging and rope necessary for baling the cotton, demanded it of defendant, who refused to deliver it. He therefore demands the delivery of the cotton, or in default thereof prays judgment against defendant for thirty thousand dollars.

The answer is a general denial. The defendant specially denies the alleged contract of deposit. He admits having agreed to sell to the plaintiff cotton for which he received eighteen thousand dollars in Confederate money; but that he never delivered to the plaintiff any cotton in pursuance of the agreement, and that he offered to return the Confederate money which plaintiff refused to receive. He avers that the consideration having been an illegal currency, the agreement was null, and that he is not bound by it. The plaintiff had judgment, and the defendant appeals.

It is clear that there was no contract of deposit. The witness Coco, introduced' by the plaintiff, states that neither he, as the agent of the plaintiff, nor the plaintiff himself, had the cotton in their possession or control. That neither he nor the plaintiff ever saw the cotton, and that it was never weighed. The cotton, when he purchased it, was in the seed. The undertaking of the defendant, it seems, was to deliver' to Coco, as the plaintiff’s agent, forty thousand pounds of lint cotton whenever plaintiff procured the necessary baling and rope to pack it.

To form the contract of deposit, there must be a delivery, the principal object of which is to take care of the thing deposited. As cotton “in the lint” was to be delivered, and a specific number of pounds, no delivery can be said to have been made as no weighing ever took place. The witness and agent 'Coco. deposes that he does not know that the cotton was ever ginned. No delivery in legal contemplation having been made to the plaintiff or his agent, no delivery by the plaintiff nor by his agent could be made to the defendant so as to constitute the latter the plaintiff’s depositary.

It clearly appears from the evidence that the consideration for which the defendant agreed to sell the cotton was eighteen thousand dollara in. tlie illegal currency of tlie so-called Confederate States. Tbe plaintiff’s agent and witness says that be paid for tbe cotton forty-five cents per pound in Confederate money, and that be counted to defendant eighteen thousand dollars.

This court has repeatedly refused to lend its aid to tbe enforcement of contracts of this kind.

It is therefore ordered, adjudged and decreed that the judgment of the District Cotirt be annulled, avoided and reversed. It is further ordered that judgment be and it is hereby rendered in favor of tbe defendant, releasing him from tbe obligation sued upon. Tbe plaintiff and appellee paying costs in both courts. Civil Code, article 2897,1 L. R. 494; Schmidt v. Barker, 17 Ann. 261.


author: Talxai’ERKo, J. Ludeling, C. J.

text:
    No. 717.
    Pinckney C. Bethel v. Joseph T. Hawkins.

      A conversation between one party to a contract and a third party, out of the presence of the other party, is inadmissible on a trial in a suit to enforce the contract.
    A loati of Confederate money or notes, as shown by the act of mortgage given to secure its pay-meht, cannot be enforced by the courts of this State. Constitution, article 127.
    A paHy accepting a mortgage to secure the payment of a debt, is bound by the terms and sense in which it is expressed.
    from the Third Judicial District Court, parish of St. Mary. Train, J.

      Tuelcer & Davis, J. G. Oliver & Dmnartrait, for plaintiff and appellee. M. JS. Girard, for defendant and appellant.
   Talxai’ERKo, J.

In June, I860, this suit was filed by the plaintiff, who prays judgment against the defendant on Ms two promissory notes with the interest thereon, each for the sum of $7500, dated the eighth of May, 1802, payable respectively in two and three years after date, with interest at eight per cent, per annum from date. He also prays a decree enforcing the mortgage given to secure the payment of the notes so far as relates to the land described in the act. By supplemental petition, filed twenty-third April, 1868, the suit was revived against the widow and natural tutrix of her minor children, the defendant having died during the pendancy of the suit. The answer is a general denial. Judgment was rendered as prayed for with an order that the land mortgaged be seized and sold to satisfy the debt. The defendant has appealed.

The consideration for which the notes were given was a loan of Confederate money as expressed in the act of mortgage. The plaintiff aimed to evade the effect of this declaration by introducing himself as a witness, detailing conversations bad with the defendant before and at the time the loan was made, and subsequently going to show that the loan was made by furnishing the borrower exchange in drafts and checks. This testimony was objected to by the defendant, and the objection being overruled he took a hill of exceptions. We do not think it important to pass upon this hill of exceptions, as the testimony is insufficient to rehut the recital in the act of mortgage.

A second hill of exceptions was taken by the defendant’s counsel to the ruling of the court admitting that part of the plaintiff’s evidence which is in these words: “Witness at once protested (on seeing the mortgage), and told the recorder that it was not the understanding or agreement between defendant and himself. That witness wanted the mortgage to be altered or a new mortgage given, leaving out the words ‘Confederate money,’ as the money given was not Confederate money, and witness wanted to carry out the original contract.” What the plaintiff said to a third party, out of the presence of the defendant, he could not give in evidence, and the testimony should have been rejected. 12 An. 179; 5 L. 414; 11 An. 503, and 3 An. 280.

The act of mortgage was executed before a notary and two witnesses on the eighth of May, 1862, the same day the notes were given, and they are identified with the act of mortgage by the notary’s paraph tie varietur. The defendant’s wife, authorized by the husband, joined in the act and made a renunciation of her rights upon the property mortgaged. These acts were required by the plaintiff to be done before the money was advanced. It appears that the plaintiff is a resident of Memphis, Tennessee, and was so at the time the Iqan was made. He was not present when the act was executed, nor was there any person present who accepted the mortgage for him. But the plaintiff seems to have acquiesced in the act, for he says in his own testimony that “defendant came to witness’ home with the notes, telling witness that the defendant had given the mortgage with the renunciation of his wife; witness then let defendant have the balance of exchange, either in drafts or checks, etc.” In his own testimony there is plainly a studied evasion in stating the time at which he first saw the mortgage. He says: “Witness then, sometime thereafter (meaning the time he gave defendant the drafts, etc.), was at Franklin, and went to see the records.” But an allegation in the petition is more definite as to the time when he protested to the notary and required the words “Confederate money” to be stricken out of the act or a new mortgage given. The petition sets out “ that the note being due, and the troubles wldch for several years had agitated the country having passed away, your petitioner demanded of said Hawkins a compliance with his obligation, but was answered by said Hawkins that payment would not be made on the ground that the money loaned to him by your petitioner had been so loaned in Confederate bills or notes. That your petitioner,having then- examined the act of mortgage, etc., discovered the allegation by said Hawkins in said act, that said loan of $15,000 had been made in Confederate currency.” The plaintiff affects now to accept the mortgage according to what he says was the original agreement, namely, that he loaned the defendant $15,000 in good current funds, on condition that defendant would execute a mortgage on Ms land and slaves.” He can only accept the act of mortgage in the terms and sense in which it is expressed. The law is plain on that subject. Civil Code, articles 1792, 1795, 1799. If he has not accepted the act according to its terms there is no contract, and he can not proceed with Ms case; if he has accepted in the only way in which he could accept, he is bound by the act and cannot gainsay its meaning and purport. There is no ambiguity in the terms used and no room for extraneous aid to interpret them. He is endeavoring to enforce a contract, the consideration of which was “Confederate currency.” The nullity of contracts founded upon that unlawful currency has been frequently determined.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that this suit be dismissed at the plaintiff’s costs.

ON Applicatioit POR Rehearing.

Ludeling, C. J.

The question presented-in this case for decision is, was the consideration of the obligations sued on Confederate money or not?

Por the purpose of this inquiry we considered all the evidence in the record, and we came to the conclusion that the averment made in the authentic act of mortgage, that the money loaned was Confederate currency, was true.

In the brief of the counsel for the appellee, it is earnestly urged “that the evidence contradicts the statements made in the act, that it shows that at least $7885 was in bank checks, transferred by the plaintiff to the defendant, and by the latter transferred, without discount, to his creditors in payment of his debts due before the war.” The testimony of Passit does prove that checks marked A. B. & C. were given to him by the defendant in payment of debts due by defendant before the war.

But this does not contradict the statement in the act of mortgage, that the loan was of Confederate currency, for it is proved beyond a reasonable doubt that these checks were themselves drawn against Confederate currency. These checks were drawn by the Bank of Tennessee on the Union Bank and the Citizens’ Bank of New Orleans, and they were dated early in March, 1862; two of them expressly state that they are payable in currency.

Louis Monrose says: “I deposited said check in the Citizens’ Bank, but received from said bank Confederate money for said check, by checks drawn on said bank.” “ I received Confederate money for said checks; the currency of New Orleans then was Confederate money, and was also bankable paper at that time.”

George Preret, cashier of the Union Bank, says, “the original of the copies marked A. & B. were paid by tbe Union Bank, upon presentation, in Confederate currency,” * * * “ wbicb was tbe currency of tbe city of New Orleans at that time.”

Felix Morris says, tbe checks marked A. & B. must bare been paid in currency. The bank ‘paid nothing but currency. Tbe currency at New Orleans at the time of payment, Aras Confederate States notes, wbicb Confederate States notes were bankable funds.’’

Charles Cammack, tbe teller of tbe Citizens’ Bank, says the original of tbe copy marked C. was received by tbe Citizens’ Bank, on deposit, April 17, 1862, and was credited to the lust indorser, Robert Hare. Tbe check “ was placed to the credit of R. Hare in currency, which at that time was Confederate money.”

R. Hare says: “I recognize the copies marked A. & C. Tbe originals of said copies, marked A. & C. passed through my bands and were credited to tbe account of C. R. Fassit.” “The original drafts were paid on presentation, and placed to my credit in the Citizens’ Bank, and paid by said Citizens’ Bank by checks drawn by me in tbe ordinary course of business, payable in currency, which at that time was Confederate money.”

Is it possiblo for any one to doubt as to what was tbe fund against wbicb these checks Avere draAvn 1 See Foster & McAlister, executors, v. The Bank of New Orleans, 21 An. 338.

Tbe counsel for tbe appellee in bis brief for a rehearing would seem to contend that tbe plaintiff loaned checks and not money.

Tbe judicial admissions made in plaintiff’s petition is, that be “loaned to Joseph T. Hawkins the sum of fifteen thousand dollars. He regarded tbe checks, then, as representatives of money, and tbe evidence shows that they were so, but of Confederate money.

Tbe reason why this court lias held that contracts for Confederate money should not be enforced was because they were contrary to public policy, and not because tbe money or notes bad no value. Therefore, whether defendant paid bis debts with tbe cheeks or not is immaterial in deciding this case.

We do not think this ease similar to tbe case of, Weaver v. Anfau. In that case tbe court said: “ Nothing shows here that any part of these checks has been paid in Confederate money; to believe so it Avould be surmising and conjecturing, when tbe law requires evidence so complete that it carries with it conviction upon tbe mind of tbe court. Can we say, or can any one say, that Confederate money was paid on those checks 9”

Tbe proof in that case did not satisfy tbe court — in the ease at bar it is full and satisfactory.

Tbe evidence satisfies us that the plaintiff knew tbe checks would be paid in Confederate currency.

The rehearing is refused.


author: Ludeling-, C. J.

text:
    No. 659
    Marie Odile Begnaud v. Alexandre Roy.
    The transferees of portions of a mortgage debt are entitled to be paid pro rata, out of the proceeds of the sale of the property mortgaged, without regard to the time when the transfer was made.
    from the Parish Court of St. Martiu. Yates, J.

      BeBlano d¿ Berry for plaintiff and appellee. Gary & Fowrnet for defendant and appellant.
   Ludeling-, C. J.

The defendant, who is the holder and owner of two of a series of notes secured hy a mortgage, obtained an' order of seizure and sale against the property mortgaged.

Before the sale, the plaintiff, who holds another of the notes secured hy the same mortgage, filed a third opposition, claiming the right to he paid hy preference out of the proceeds of the sale of the property mortgaged, because she acquired her note before its maturity, and that the defendant acquired his notes subsequently and after their maturity.

. There was judgment in favor of the plaintiff ordering the sheriff to pay her the amount of her claim hy preference, and the defendant has appealed.

We had occasion to examine this question recently, and we held that the transferees of portious of a mortgage debt are entitled to he paid, pro rata, out of the proceeds of the property mortgaged without regard to the time when they were transferred.' We adhere to that position. See Perot v. Levasseur, 21 A. 529.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court ho avoided and reversed j it is further ordered that the proceeds of the property mortgaged ho distributed proportionally on aLl tbe notes secured by the mortgage, and that the plaintiff and appellee pay the costs of both courts.


author: TaliaeeRRO, J.

text:
    649.
    Anatole Coco v. James Calliham.
    A third, bolder of a negotiable paper before maturity, in good faith, for a valuable consideration, can recover thereon, unless it is shown affirmatively that the original consideration was il egal.
    A promissory note, given ior Confederate money as the consideration, cannot be enforced in part, predicated upon an assumed value of the illegal currency at the time, when compared with legal currency.
    from the Seventh Judicial District Court, parish of Avoy-elles. Lewis, J.

      Wacldill & BarUn and If. Taylor, for plaintiff and appellant. B. North Oullom, for defendant and appellee.
   TaliaeeRRO, J.

The plaintiff, as endorsee of a promissory note, drawn hy the defendant on the sixteenth May, 1863, for $5000, payable to the order of Charles Arnold, brings this action to recover its amount.

Tho defense is, illegality of the contract and failure of consideration. The plaintiff had judgment for a part only of the sum claimed. Both parties have appealed.

' The facts as we find them in the record, seem to be that, during' the late war and a short time before the march of a United States army through the parish of Avoyelles, the defendant, in order to protect liis property, effected a sham sale of it to Arnold, the payee of tho note, and contracted to pay him $5000 (the consideration of the note) to secure tho property from damage and sx>oliation under the pretext that he was a subject of a foreign country friendly to the United States. The stratagem, however, did not succeed, at least only to a very limited and unimportant extent.

The note, it appears, was transferred before its maturity to the plaintiff. The ouly important question in the case is, did the plaintiff acquire the owners ¡ip of tho note bona fide for a valuable consideration before its maturity and without knowledge of equities and exceptions existing between the prior parties ? A number of facts is shown on the part of the defendant tending in some degree to fix upon the plaintiff a knowledge of the whole transaction out of which the contract between the defendant and Arnold had its origin, and that ho knew when he acquired the note what was the consideration for which it was executed, and that the consideration had failed. But these facts are not clear and direct, although they are mighty and forcible. They would seem to warrant the inference of knowledge contended for by the defendant; and apart from other evidence in the record, might amount to constructive knowledge, as it is frequently termed, of the equities set up by the defendant. But in juxtaposition to the array of circumstances from which the evidence at last would only be inferential, we have the positive, direct and unequivocal evidence ,of the plaintiff himself in his answers to interrogatories propounded to him by the defendant, denying emphatically any and all knowledge of the consideration of the note, or of the failure of the consideration. He swears directly that he gave a valuable consideration for the note, and it is shown by another witness that plaintiff acquired the note before its maturity. The defendant has not rebutted these answers of the plaintiff in the manner required by law, and their damaging effect to the cause of the defendant is not obviated. C. P. art. 354.

The Judge of the Court below took this view of the evidence, and in it we concur. But we do not concur with him as to the basis upon which he rendered his judgment. He assumed that Confederate money was contemplated by the parties as the currency in which the note was to be paid, and therefore proceeded to estimate the value of that currency at the maturity’of the note, as measured by gold and United States Treasury notes, and found the mean value to be sixteen dollars of Confederate money for one of United States Treasury notes, and rendered judgment accordingly. There is no sufficient evidencé before us to render it entirely clear that the illegal currency, termed Confederate money was the currency in which, by intendment of the parties, tlie note was to be paid. If any weight is to be attached to the declaration of Arnold, the payee of the note, it would appear that he contemplated something better in payment than Confederate money; for he said, “he had the note made payable six months after date for the reason that the war would be over in six months; we would lose our cause and the money would be good.” On the face of the note is expressed that the $5000 are to be paid “ in current money.” We do not find in the record evidence sufficiently strong to overcome the presumption that “ current money ” meant lawful currency.

In no sense was the Judge of the Court below authorized to render a judgment predicated upon an assumed value attached to the illegal currency called Confederate money. The note is either good for its whole amount or null for the whole. Conceiving that we should, from the evidence, hold it to be good in the hands of the plaintiff, judgment, we think, should be rendered for the whole. - . ■

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the plaintiff recover from the defendant five thousand dollars with five per cent, interest thereon from the 16th November, 1863, and that defendant pay costs in both courts.


text:
    620.
    John A. Taylor v. James C. Hill.
    In an appeal from an order of seizure and sale, tlie Supreme Court will limit their examination to the validity of the order.
    An order of seizure and sale granted on notes that were prescribed at the date of the order* will be set aside on appeal.
    The maxim, Contra non valcntam agerc non currit prcscriptio, cannot be invoked by the holder ot a promissory no.e to delo.it; tne plea of prescription. Smith v. Stewart. 21 An. 67.
    from tho Eighth District Court, parish of St. Landry. Bailey., J.

      Jamies M. Porter and King <& Martin for plaintiff and ap-pellee ; J. M. Moore for Donnell andNellson, appellees. John 3. Over-ton for defendant and appellant.
   Wyly, J.

This is an appeal from an order of seizure and sale sued out by the plaintiff against the property of the defendant.

After the property had been sold, but within the twelve months, the defendant took this devolutive appeal.

I.He assigns as errors that the notes secured by the mortgage were prescribed when the order was granted, being more than five years past due;

II.That the notes and mortgages, upon which the order was granted, were not stamped as required by act of Congress, and therefore were inadmissible as evidence; ' - '

III.That the sale and adjudication of the property to W. S. Donnell & Co. was illegal and void, vesting no title, because they were first mortgage creditors and the property was adjudicated to them at a sum exceeding their debt interest and costs, yet the mortgage notes- evidencing the indebtedness were neither canceled nor delivered to the appellant, although extinguished and paid by the amount of their bid.

For these reasons the appellant aslcs that the order of seizure and sale may be reversed, that the sale of his property may be set aside, and that he may be reinvested with possession thereof. He caused the purchasers, W. S. Donnell & Co., also to be made parties to the appeal.

In this appeal, we can only revise the order of seizure and sale granted by the Judge a quo; we have not original jurisdiction to consider irregularities in executing the decree occurring subsequent thereto. 6 R. 58.

The appellees, W. S. Donnell & Co., were not parties to the order appealed from, nor were they interested theroin, and as to them the appeal must be dismissed.

If the Stamps were necessary to make the evidence legal, as urged by the appellant, in the absence of proof to the contrary, we will presume that they were attached to the notes when the order was granted; the District Judge is presumed to have done his duty. Upon the face of the papers the order appears to have been properly granted, being based upon authentic act and authentic evidence.

In reference to the plea of prescription of five years, filed in this Court, we find in the record that it is well taken as to two of the notes, which were more than five years past-due when the order was granted.

In reference to the “ contra non valentón,” etc., doctrine, urged in bar of the prescription pleaded, we have held in the case of Smith v. Stewart, 21 A. 67, that it is simply a rule of equity which we cannot permit to set aside the written law expressed in Art. 3505 of the Civil Code. Where there is no express law we can decide according to equity. C. C. 2-1.

In regard to the act suspending prescription, passed by the so-called Legislature at Shreveport in 1863, invoked by the plaintiff, we can say that it forms no part of the laws of this Stite.' That Legislature was an organization of the rebel government, an illegal body; its members were not acting under the solemnities of an oath to support the Constitution of the United States, and all of its proceedings are illegal and void.

It is therefore ordered, adjudged and decreed that this appeal, as to W. S. Donnell & Co., be dismissed; that the order appealed from be reversed and set aside as to two of the notes declared upon, to wit: the one due twelve months from date, and the other due two years from date, both dated the seventeenth April, 1858, for $218814£ each, with eight per cent, interest per annum on each from date. As thus amended, it is ordered that the order of seizure and sale he affirmed.

It is further ordered that plaintiff pay costs of appeal.


text:
    702.
    Charles E. Heidenreich v. Samuel Leonard et al.

    A note given by a conscript in the so-called Confederate army to another party, to serve in his place as a substitute, is illegal, and no action lies to enforce it., 19 An. 439.
    from the Third District Court, parish of St. Mary. Gates, J.

      Tucker & Davis for plaintiff and appellee. J. G. Oliver for for defendants and appellants.
   Wyly, J.

The defendants have appealed from a judgment against them based on a promissory note dated July 9, 1862, for $1000.

The defense is, that the motive or cause of the obligation evidenced by the note, is immoral and against public order, it being for the hire of plaintiff to serve as a substitute for the defendant Leonard in the army of the Confederate States.

The ..evidence shows that Leonard was a conscript in Camp Pratt when he made the note, that he employed the plaintiff to serve as a substitute for him in the war of the rebellion, and that the note had no other consideration.

The obligation had an unlawful cause and can have no effect. C. C. 1887; 19 A. 439, 449.

It is therefore ordered that the judgment appealed from be reversed and annulled, and it is now ordered that there be judgment for the defendant, plaintiff paying all costs.


author: Ludeling, 0. J.

text:
    No. 665.
    William Campbell, Administrator, v. Claire Thibodeaux, Widow, etc.
    Tbe ambiguity in tlie testimony of a witness will be so construed as to haromnize with the view taken of it by the Court a qua.

    from the Parish Court of Lafayette. Bailey, J.
    If. B. Gerard for plaintiff and appellee. James A. Breaux for defendant
    and appellant.
   Ludeling, 0. J.

This action is instituted on a promissory note, to which the defendant affixed her mark. The judgment by default was made final after the legal delays, and the defendant has appealed.

The only question presented in this case is, whether the. mark of the defendant has been proved. We think it has. The attesting witness says “ that he was the witness to the signature to the note marked A, and that Claire Moss is Claire Thibodeaux, widow J. W. Moss.” The District Judge, who heard the witness, considered the signature proved, and, if there was ambiguity in the language of the witness, we would be inclined to interpret it so as to sustain the correctness of the action of the Judge a quo.

It is therefore ordered that the judgment of the District Court be affirmed with costs of appeal.


text:
    No. 660.
    Valery M. Guilbeau, Administrator, v. Zephyrin Cormier and Alexander Roy.
    A third party on appealing from a final judgment on the ground of his liability to contribute, must cite the plaintiff and defendant as appellees, otherwise the appeal will be dismissed for want of proper parties.
    The fact that the name of the defendant is inserted in the appeal bond will not supply the defect.
    Tho omission to ash for citation of the defendant in the petition for appeal, is imputable to the appellant.
    from the District Court, parish of St. Mary. Gates, J.

      Felix YoorMes for plaintiff and appellee. Gary & Fournet for defendants and appellants.
   Howe, J.

This suit was instituted upon a promissory note executed in solido by Cormier & Boy. The latter' alone was cited, and judgment was taken against him by default and made final. Cormier, as a third party liable to contribution, appealed.

The plaintiff, appellee, has moved to dismiss the appeal on the ground, among others, that the defendant Boy, against whom the judg-ement was rendered, has not been made a party. The appeal was taken by petition, which docs not ask for the citation of Boy, nor was he cited. The fact that his name was inserted in the bond does not supply the defect; and the fact that the petition did not request that Boy be cited causes the defect to be attributable to the appellant. The motion must prevail. Gibson v. Selby, 3 Ann. 318; Lobelle v. Lobelle, 5 Ann. 174 ; Cotton v. Sterling, 19 Ann. 137; Saux v. Lefevre, 12 Ann. 757.

It is therefore ordered that the appeal herein be dismissed with costs.


text:
    No. 662.
    Celestine Dupuy, wife, etc., v. Valiere Arceneaux.
    A judgment by default that has been improperly made final because of defective citation, will be sot aside on appeal, and the cause will be remanded.
    A ct-iU *n must express the number of days given the defendant to answer according to the distance from his residot.ee to the place where the Court is held, to be reckoned from the date of service. C. P. 179, § 5.
    from the Third Judicial District Court, parish of St. Martin. Gates, J.

      Del!lane & Ferry, for plaintiff and appellee. Gary & Fournet, for defendant and appellant.
   Ludeling, C. J.

This is an action on two promissory notes. The judgment by default was made final, and the defendant has appealed.

Our attention has been directed to the following errors apparent on the face of the record; that the citation„does not express the year in. which defendant is to answer; that the citation expresses that the defendant must file his answer in ten dags, while the sheriff’s return shows that the defendant’s residence is twenty-two miles from the court house.

Article 17Í) of the Code of Practice, section five, requires that the ;l oitation must express the number of days given to the defendant to file his answer, according to the distance from his residence to the place where the court is held, to be reckoned from the day when the citation was served.”

In Kendrick’s Heirs v. Kendrick, this Court held that “ the citation should have stated that the answer was to be filed within ten days after service, and alloiving one day for every ten miles distance from the residence of the defendant to the cleric’s office.'1'1

In Leeds v. Debuys, 4 R. p. 258, the Court decided that before a court permits a judgment by default to be made final, it must be satisfied that the defendant has been duly cited; but it suffices that it appears that he was so, by the inspection of the citation and return.”

By an inspection of the citation and return thereon, it appears that the defendant was not duly cited. The default was improperly made final, and must be set aside.

It is, therefore, ordered and adjudged that the judgment of the Dis-'-trict Court be avoided and reversed, and that the case be remanded to the District Court to be proceeded with according to law. It is further ordered that the appellee pay the costs of this appeal.


text:
    No. 670.
    Louis Delile Arnault, Administrator, v. Paul Leon St. Julien.
    In a service of citation at domicile, the sheriff’s-return must show that the defendant was absent at the time, and that the person with whom the citation was left, was living there.
    No legal judgment can he rendered on a defective citation.
    from the Eighth District Court, parish of Lafayette. Bailey, J.

      BeBlanc & Perry for plaintiff and appellee. M. JE. Gerard for defendant and appellant.
   Wyly, J.

The defendant appeals from a judgment made final on a default against him, and contends that it is illegal because he was not properly cited to appear and- answer the demand of plaintiff.

The sheriff’s return reads as follows: Served a copy of the within summons, together with a petition, on Paul Leon St. Julien, by leaving the same with J. G-. St. Julien, a free white person above the age of fourteen years, residing with the defendant, the said Paul Leon St. Julien, he being absent at the time, between the hours of 12 and 3 P. M. on twenty-ninth January; 1866.”

The service was illegal; it does not appear where it was made. The return does not state where the domicile or house inhabited by the defendant is situated. C. P. 201.

It does not state that the copies of citation and petition were left at the usual place of domicile or residence of the defendant. C. P. 189.

■ In service at domicile the sheriff’s return must state the absence of defendant from home, and that the person toith whom the citation was left was living there. u The law only dispenses with personal service when the defendant is absent from home.” Kendrick v.Kendrick, 19 L. 36; 4 A. 363 ; 7 A. 268.

The defendant not having been legally cited, the default and judgment were erroneous.

It is therefore decreed that the judgment appealed from be avoided and annulled; and it is ordered that this cause be remanded to be proceeded in according to law, and that plaintiff pay all the costs.


author: Taliafekro, J.

text:
    No. 690.
    State of Louisiana ex rel. N. J. Sandlin, District Attorney, v. J. D. Watkins, Judge of the Eleventh Judicial District.
    Act No. 156 of 1868 in providing a mode of legally ascertaining whether persons holding office under the authority of the State of Louisiana, are incompetent to exercise the duties thereof, by reason of the disabilities imposed on cerfcaiu classes of persons by the Constitution of the United States, does not impose pains and penalties on any one, nor does thi3 act assume authority which appertains exclusively to the Federal tribunals.
    A suit brought under the intrusion act, No. 156 of 1868, against a party in office, is not to inflict punishment, nor to impose penalties or disabil.ties upon him, but simply to inquire into his right to hold and exercise the office.
    Section 3 of the act of Congress of twenty-fifth of June, 1868; entitled an act to admit the States of North Carolina, South Carolina, Louisiana and other States to the Union, provides that no person prohibited from holding office under the United States by section three of the proposed amendment, known as Article Fourteenth, shall be deemed eligible to any office in either of said States.
    The State Courts of Louisiana will enforce this law of Congress ; and whore it is ascertained by suit under the intrusion act, No. 156, of 1868, that a party is disqualified from holding an office under the provisions of this act, his disqualification will bo judicially declared.
    from the Eleventh District Court, parish of Claiborne. Scott, Parish Judge, presiding.

      N. J. Sandlin, District Attorney, for the State, appellant. J. D. Watlcins, in person, appellee.
   Taliafekro, J.

This is the second appeal which has been taken in this controversy, the first having been dismissed for want of jurisdiction of the Court before which the proceedings were had.

The case is now before us on appeal taken- by the plaintiff from a judgment rendered by the Parish Judge of the proper jurisdiction, acting in the place of the District Judge, who is the defendant herein, and necessarily recused, The action is brought under the intrusion act (No. 156, acts of 1868,) and is based on the allegations that the defendant is unlawfully holding and claiming to exercise the duties of Judge of the Eleventh Judicial District of Louisiana, contrary to the provisions of the eligibility act, No. 3.9, of the acts of the State Legislature of 1863, and the third section of the Fourteenth Amendment to the Constitution of the United States. It is charged against him that prior to the late rebellion he held the office of District Attorney of the Seventeenth Judical District of the State, and as such took an oath to support the Constitution of the United States, and thereafter engaged in rebellion' against the United States and gave aid and. comfort to the enemies thereof; and the prayer is for a judgment extruding the defendant from office, and for costs, etc.

The defendant filed an exception, to the effect that a State Court has no jurisdiction over any of the matters set up in the petition ; that the allegations against him are, that he is liable to certain punishment, pains and penalties, disfranchisement and deprivation of rights for having committed certain alleged treasonable acts for which punishment is announced by the Fourteenth Amendment to the Constitution of the United States; that the State of Louisiana is wholly without interest in this suit; that the United States alone can maintain the suit; that all action by the State, the Legislature, the Governor or Courts, in regard to the matters herein, are null and void ; that the Fourteenth Amendment is not self-enforcing; that by the fifth section thereof Congress has the exclusive power to enforce it, and that the Federal Courts have exclusive jurisdiction of all crimes, offenses and misdemeanors under the laws and Constitution of the United States as heroin charged.

It docs not clearly appear from the record that the exception was passed on by the lower Court, but as it has been argued before us, and as it involves the question of jurisdiction, we have given it due consideration.

We do not find that the law under which this action is brought is contrary to the Constitution. In enacting it the Legislature established a mode of legally ascertaining whether persons holding office under the authority of the State of Louisiana are incompetent to exercise the duties of those offices by reason of the disabilities imposed upon certain classes of people by the Constitution of the United States, or by act of Congress of June 25,1863. This, the State has obviously a great interest in doing and a clear right to do. The act numbered 156, of session of 1868, imposes pains or penalties upon no one. It assumes no authority which appertains solely to the Federal tribunals. The suit, therefore, against the defendant is not to inflict punishment or to impose penalties or disabilities upon him, but to inquire legally into liis right to bold and exercise the office which lie contends he is entitled to.

The exception is overruled.

The substance of the answer is embodied in the exception. In the answer the defendant sets up the unconstitutionality of act No. 39, oi August 26, 1868, and that the fourteenth amendment to the Constitution of tlie United States does not apply to this case. This suit we understand to be, from the form of the petition, being brought in the name of the State, and concluding with the prayer that the defendant be cited to answer, essentially a suit brought under the act No. 156, of acts of 1863, before referred to. It is, then, unnecessary to inquire into the constitutionality of the act No. 39.

The inquiry in this case is, has the defendant, under the provisions of the fourteenth amendment to the Constitution of the United States and those of the act of Congress of twenty-fifth June, 1863, entitled an act to admit the States of North Carolina, South Carolina, Louisiana and other States to the Union, the legal right to discharge the duties of the office of District Judge of the Eleventh Judicial District of the State of Louisiana % It is clearly established that the defendant, before the late rebellion, held an office for the discharge of the duties of which he took an oath to support the Constitution of the United States, and that he afterwards engaged in the late rebellion against the United States. It is also established that the defendant was elected Judge of the Eleventh Judicial District of the State on the seventeenth and eighteenth days of April, 1868, obtained his certificate of election in the month of June following, and was commissioned in the mouth of July, 1863, having taken the oath required by the Constitution of the State on the thirteenth of the month last named.

What are the impediments in the way of the defendant’s holding the office ? He contends that the fourteenth article of the amendments to the Constitution does not affect him because it was not adopted until after he became entitled to his office; that it is'prospective only in its effect; that it is not self-enforcing, and before it can have effect it requires legislation by Congress. These positions we are far from assenting to; but without considering them, there is a part of the supreme law pf the land bearing upon the case before us which cannot have a retrospective effect upon it, for the reason that it was in force before the defendant was commissioned as Judge of the Eleventh District. We refer to the act of Congress before mentioned, passed on the twenty-fifth June, 1868. The observance of this law was expressly made a condition on which Louisiana was re-admit"ted to the Union. The third section of that act provides that no person prohibited from holding office under the United States by section three of the proposed amendment, known as article fourteenth, shall be deemed eligible to any office in either of said States, unless relieved from disability as provided by said amendment, viz: by a vote of two-thirds of each branch of Congress,” This law was in force from and after its passage; it is of paramount authority, and it is obligatory upon the Legislatures and the courts to carry it into effect. We think it applies to the present case, and that the defendant is disqualified thereby from holding and exercising the office of Judge of the Eleventh Judicial District of the State of Louisiana.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be annulled, avoided and reversed. It is further ordered, that the defendant bo and he is hereby declared incapacited by law for holding the office of Judge of the Eleventh Judicial District of of the State of Louisiana, and that he be restrained and inhibited from exercising the duties and receiving the emoluments of the same, and that he pay all costs of this suit.

Rehearing refused.


author: IIowe, J.

text:
    No. 678.
    Carl. Wolff v. K. W. McKinney.
    An appeal from an interlocutory judgment will not be entertained where it is not manifest that such decree would work irreparable injury.
    from the District Court, parish of St. Landry. Baily, J.

      Moore & Morgan for plain tiff and appellee. Dupree & Garland and -King for defendant and appellant.
   IIowe, J.

The plaintiff having caused certain cotton, on which he claimed a privilege, to be sequestered, the defendant, on the tenth November, 1866, made a motion to dissolve the writ. On the sixteenth of the same month he obtained permission to bond the property, and on the twenty-first the bond was given. On the twelfth February, 1867, the motion to dissolve was overruled, and from this interlocutory judgment the defendant has appealed.

We must decline to enter into the merits of this appeal. The cause, itself, has never been tried, and it maybe that the plaintiff, will never obtain a final judgment. The law does not favor the bringing up of cases by fragments, and therefore has provided no appeal from interlocutory decisions unless they work irreparable injury. That the order in this cause does not work such injury is well settled. State v. Judge, 2R. 395; Wilson v. Churchman, 4 Ann. 343; Lemoene v. Garcia, 4 Ann. 366; Hart v. Phillips, 1 R. 223; Powell v. Hopson, 12 A. 615.

It is therefore ordered, that the appeal be dismissed at defendant’s costs.


text:
    No. 687.
    Marx Levy et als., Liquidators, v. V. Gremillion et als.
    A third holder of a promissory note, given for the price of a slave, cannot recover thereon, although he acquired it in good faith, ior a valid consideration, heiore maturity. Groves v. Clark re-affirmed, ante page, 567.
    from tlie Parish Court of Avoyelles. Edwards, Parish Judge.

      Wad-dill di Harbin for plaintiffs and appellants. Culloin & Thorpe for defendants and appellees.
   Ludeling, C. J.

On the twenty-ninth day of March, 1866, Marx Levy et als., liquidators of the firm of Isaac Levy & Co., brought suit against the defendants to recover the amount of a note executed by defendants.

It is admitted that the note was given for the price of a slave; and that it was transferred before maturity. It is further proved that the note was transferred for value.

There was judgment against the plaintiffs, and they have appealed. "We had occasion recently to examine the question presented in this case, whether a note, given for the price of a slave and transferred before maturity and for value, can he enforced by the Courts of this State, when in the hands of an innocent holder ? And after mature consideration, we decided that such a contract could not be enforced now in this State. In Wainright v. Bridges, it was held that all contracts for the price of slaves were annulled by the sovereign power, and the Constitution of the State absolutely prohibits the courts from enforcing all such contracts. See the case of Groves v. Clark and Carnal, 21 An. 56; Art. 128, Constitution of 1868.

It is, therefore, ordered and adjudged that the judgment of the District Court be affirmed, and that the appellants pay the costs of this appeal.


text:
    No. 725.
    Mari Sydonia Richard v. J. J. Beauchamp, Sheriff, et al.
    The allegations in a petition for injunction against an order of seizure and sale show, that the consideration oí the debt for which the mortgage was given was Confederate notes, and that petitioner is the surviving partner of her deceased husband, and, as such, is entitled to one thousand dollars out of his estate by preference. Held — that the petition disclosed an interest in preventing the payment of this illegal debt, and therefore disclosed a cause of action.
    A bill of exceptions to the rejection of evidence by the judge must state the grounds on which it was rejected.
    from the District Court, parish of St. Landry, jBailey, J.

      H. A. -Martel & Hudspeth, for plaintiff and appellant, Henry L. Garland, for defendants and appellees.
   Ludeling, C. J.

The plaintiff enjoined the sale of property belonging to the succession of her husband, which was about to be sold under an order of seizure and sale. Of the many reasons stated in the petition for injunction, it will he sufficient to notice only the following: The plaintiff alleges that she has learned that her husband is dead j that slie is entitled to be paid one thousand dollars out of his succes-siou by preference, by virtue of act' No. 255 of tbe General Assembly, passed, seventeenth March, 1852, and that the mortgage was executed to secure a note given for Confederate notes.

The defendants move to dissolve the injunction because the allegations in ihe petition disclose no cause of action, and because the oath is insufficient.

The plaintiff swears that the facts and allegations contained in the petition are true.

These allegations show that the note, secured by the mortgage attempted to be enforced, was given for the illicit currency issued by the Confederate States and that the plaintiff has an interest in preventing the collection thereof.

The motion to dissolve the injunction should have been overruled. Constitution of Louisiana, article 127, and Foster, and McAllister, executor, v. The Bank of New Orleans, 21 An.

A bill of exceptions was taken by the plaintiff to the ruling of the judge a quo rejecting certain evidence. The bill of exception's does not inform us what was the objection urged by defendant — hence we cannot act upon it. Article 488 C. P., declares that in the bills of exceptions shall be concisely set forth the grounds of the exception so taken.

For the reasons given, it is ordered that the judgment of the lower court be avoided and reversed — that the motion to dissolve the injunction be overruled, and that the case be remanded to the District Court to be proceeded with according to law.

It is further ordered that the appellees pay the costs of this appeal.


author: Taliaeeuuo, -J.

text:
    No. 693.
    Darby and Tremoulet, Syndics, v. Euphemie Fuselier, Widow, etc.
    Darby & Tremoulet, commission merchants, in the chy of Now Orleans, made advances to A. Grevemberg to a large amount, predicated on-a letter of creditwritten by Mrs. Vyidow Fuse* lier, bis mother, requesting said firm to mate advances to and accept the drafts of said Grevemberg to enable him to pay for a plantation. Grevemberg obtained the advances and afterwards shipped his sugar crops to said merchants, which far exceeded in value the amount of advances made to him,, the proceeds of which he was allowed to drayr out without reserving the amount of the advances. Grevemberg died, and his merchants failed to present and eniqrce their privileges against his es'ate. Held — that the failure on the part of said Darby & Tremoulet to enforce payment for their advances, while it was in their power, discharged the surety who was bound on the letter of credit. That under this state of facts, the party giving the letter of credit is discharged by their laches.
    from tbe Third Judicial District Court, parish of St. Mary. Train, J.

      B. TP. Winchester and Tucker é Dams, ’for plaintiffs and appellants. JDeBtane & Berry, for defendant ‘and appellee.
   Taliaeeuuo, -J.

The plaintiffs, as syndics of their former firm of Darby & Tremoulet', bring 'this action to recover the sum of'$35,749 54, with interest.

. They predicate their claim upon a letter of credit directed to them by 'the defendant requesting them to make advances to her son,. Charles A. Grevemberg, and accept drafts drawn upon them by him to enable him to pay the price of a plantation which he had purchased in the parish of St: Mary, from W. W. Jenkins. The plaintiffs allege that they made the required advances for the Said Charles Grevemberg to an amount exceeding $55,000. That this indebtedness was reduced by September, 1862, to the amount which they how sue for.

The answer of the defendant admits her signature to the letter of credit, but specially denies all the plaintiffs’ allegations as to indebtedness or liability arising from the letter of credit they declare upon.

The defendant had judgment in her favor and the plaintiffs appeal.

The facts presented are, that in the year 1858 Charles A. Grevem-berg, the son of the defendant, entered into an agreement with Jenkins, whose plantation, with a large number of slaves upon it, was under seizure at the suit of Sfowaft Wilkins Fisk, Testamentary Executor, v. W. W. Jenkins, and advertised for sale on the second of July, 1858, by which he was to become the purchaser at the price of 8115,000. In consideration of this purchase, Grevemberg was bound to transfer his plantation in the parish of St. Landry to Jenkins at the price of $15,000, and to pay and discharge for him the amount due the seizing creditors — $29,955 10. Besides this he assumed the payment of other debts of Jenkins — one to Jackson & Co. of $17,075 39; one to the estate of Louet of $666 66|-; one to D. & II. Tirquhart of $14,333 72, and a payment to Jenkins o'f $7,964 971.

To insure the performance of this undertaking, Grevemberg, on the third of July, 1858, executed a mortgage by notarial act, in favor of Jenkins upon the land purchased from him and a number of slaves attached to the cultivation.

The stipulations of the parties seem all 'to have been carried out fully. It seems to be established also that the plaintiffs advanced money and accepted drafts to enable Grevemberg to fulfill his obligations to Jenkins, and for that purpose they paid for Grevemberg about $55,000.

It is shown that the commercial partners, Darby & Tremoulet, were the factors of the defendant and her son, from June, 1858, to.September, 1862. That the business of the mother and lier son was carried on separately, and the defendant during that period was in a state of opulence, making large sugar crops and shipping them to the house of Darby & Tremoulet; that the defendant had annually large sums óf money over and above the wants of herself and her plantation, without debts to encumber her, and that she was in the habit of annually distributing her surplus funds among 'her children, and for this annual distribution the son, Charles Grevemberg, came in for a large share. It is also shown that Grevemberg himself had a large income from his plantation and that he made large shipments of sugar to his factors. For these parties the house of Darby & Tremoulet held, during the years mentioned, funds to the amount of half a million. The solvency and credit of Mrs. Fuselier were unquestioned. She was able at any time during the period the plaintiffs were acting, as her factors to discharge the debt for which she was bound for her son. The son also had means in the hands of Darby & Tremoulet during the period from July, 1858, to September, 1862, to have discharged the debt. These funds should have been applied to its payment, for of all the debts of 1858 and 1859 that for the advances to pay for the plantation which was mortgaged was the debt Grevemberg had the most interest in discharging. It bore interest. It was'the oldest of the debts shown in the subsequent accounts rendered by the factors. A running account was kept between the parties, and the balance shown in September, 1862, against Grevemberg is not likely to be any balance of the price of the plantation from Jenkins, but a balance of all the accounts of Darby & Tremoulet against Grevemberg. There has certainly been laches on the part of the plaintiffs in not giving the defendant notice of the non-payment of her son’s indebtedness, and preserved for her all rights of action under the mortgage, if they intended to hold her bound in the event Grevemberg failed to reim. burse them their advances. Instead of doing this, we find that after the death of Grevemberg, in 1862, and the insolvency of his estate, the plaintiffs figure as ordinary creditors on the tableau of debts of his estate, having failed to become subrogated to the rights of the mortgagee, who was entitled to the first mortgage on a large tract of land embracing a valuable sugar plantation.

A prolongation of the term granted to the principal debtor without the consent of the surety will release the latter. C. C. article 3032.

The creditor can do no act whereby the rights or recourse of the surety against the debtor may be destroyed or impaired. If he make a novation or grant time to the principal the surety is as effectually discharged as if the claim had been satisfied. 3 Rob.; 10 Rob. 412.

There are other points of defense in this case not without weight, but which we deem it not important to examine at length, concurring in the opinion of the District Judge that the laches of the plaintiffs on this point alone are shown by their own evidence and preclude them from recovering.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs in both courts.


author: TaeiapeRRo, J.

text:
    No. 682.
    John A. Taylor v. James C. Hill.
    A. holder of mortgage paper having proceeded by executory process to enforce payment, cannot, while the suit is pending, proceed vía ordinaria against the maker of the notes. In such a case the plea of lis pendens will be maintained as to the latter suit.
    from the Eighth Judicial District Court, parish of St. Landry. Bailey, J.

      George B. King, for plaintiff and appellant. J. H. Overton, for defendant and appellee.
   TaeiapeRRo, J.

The plaintiff institutes this suit on two promissory notes of the defendant, each for the sum of @2188 14, with interest at eight per cent, per annum on one of the notes from the seventeenth of April, 1859, and like rate of interest on the other from the seventeenth of April, 1860.

The defense is lis pendens. The exception was sustained in the court below and the suit dismissed. The plaintiff has appealed.

There is no error in the judgment. The notes were secured by mortgage. The plaintiff first proceeded via exeentiva. Prom the order rendered in that case the defendant took a devolutive appeal, the transcript of which forms the suit numbered six hundred and twenty of the docket of this court. It seems, by reason of a prior mortgage, the plaintiff realized but little on his own mortgage, and he seeks by this action a personal judgment against his debtor. The exception was properly sustained. See N. S. 493 and 665 ; 8 N. S. 96.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs in both courts.


text:
    No. 686.
    Bernard Drogre v. Charles Moreau and Wife.
    In a suit to revive a judgment, it is incumbent on the party claiming to be owner, to establish the existence of the judgment and his ownership thereof. A copy certified irom the mortgage office, without showing the loss of the original, is not sufficient to establish the existence of the original judgment.
    from the Seventh District Court, parish of Avoyelles. Lewis, J.

      Irion & Overton, for plaintiff and appellee. Waddill & Barbin, for defendant and appellant.
   Wyly, J.

The defendant, Clarice Goudeau, wife of Charles Moreau, has appealed from a judgment entered by default and made final against her husband and herself, reviving the judgment which they had confessed in June, 1858, in favor of Isaac Levy & Co.

It appears that plaintiff instituted within proper time the necessary proceedings to revive said judgment according to the provisions of the act of the thirtieth April, 1853, alleging that since the rendition of said judgment the said Isaac Levy & Co. transferred the same to Bellocq, Noblom & Co., who, in turn, transferred it to him, and that lie is the owner thereof, and it has not been paid.

Copies of the petition for revival and of the citation were served on both the defendants according to law, and in due time the cause was put at issue by default, which was afterwards made final, reviving the .-judgment, tlie defendants having failed to make appearance.

The appellant urges that the petition for revival of the judgment is insufficient, .because it does not mention the place of her domicile; it does not allege that the judgment sought to be revived or the indebtness upon which it was based inured to her benefit, and because it does not contain a prayer asking that she be authorized to stand in judgment.

These objections, if of any weight, should have been urged before the joinder of issue. Wo do not think, however, that averments of that kind are essential in a simple application to revive a judgment. The law simply provides the mode to interrupt the prescription of judgment. It does not require the same allegations and the production of the same evidence upon which the judgment was originally obtained.

The objection, however, that the default was aiade final without sufficient evidence of the existence of tho judgment, and of the owner the;eof, claimed by the plaintiff, is made with more effect.

We find in tho record that the existence of the judgment was not established by a certified copy of the original, made by the clerk, but by a copy of the judgment as copied into the records of the mortgage office, that it is simply the copy of a copy certified by the recorder.

It should not have been received by tho judge without the absence of tho best evidence being properly accounted for.

We do not find in the record evidence proving that jliintiff is the transferee or owner of the judgment as alleged by him, but we cannot say he failed to prove his ownership to the satisfaction of the judge, who states that he did; besides, it appears from the note of evidence that some proof of the transfers was offered, as we there find the following entry : certified copies of transfers of judgment to be furnished.”

The authorities in 20 A. 281, and 19 A. 146, relied on by the appellant to maintain her position that a'judgment rendered against a married woman, without her being authorized to appear in court, is a nullity, do not apply to this ease.

In those cases there was no default, a tacit joinder of issue by both the husband and the wife, but simply the unauthorized appearance and answer of the wife.

The court there very properly held that the unauthorized answer of the wife did not make a legal joinder of issue upon which a judgment may be based.

In this case there was no answer by either the husband or the wife, although both were legally cited.

There was a default entered, which by fiction of law was the appearan’ce and joinder oí issue by both the husband and the wife, the tacit appearance of both implying the authority of the former to tho latter. 9 A. 197.

From the hice of the record, however, wo are not satisfied that the existence of the judgment sought to be revived, and plaintiff’s ownership thereof were properly established. We think justice requires that this case should be remanded.

It is therefore ordered and adjudged that the judgment appealed from be avoided and annulled, and it is now ordered that this cause be remanded to the court a qua, to be proceeded in according to law.

It is further ordered that plaintiff pay costs of the appeal.


author: IIoweix, J.

text:
    No. 674.
    A. P. Noblom v. E. C. Milborne.
    Contracts entered into during the late war between parties, the one residing within the military line of tbe United States and the other within the Confederate lines of military occupation, are absolutely null, and no action will lie to enforce them.
    from the District Court, parish of St. Landry. Bailey, J.

      B. A. Martel, for plaintiff and appellant. John JE. King, for defendant and appellee.
   IIoweix, J.

Three cases between these parties, involving the same subject matter, were cumulated by consent in the lower court, for the purpose of trying a peremptory exception filed in each, and a separate judgment was rendered in each, from which appeals have been taken by the plaintiff, and they are before us in one transcript.

The plaintiff, a resident of New Orleans, alleges that, on the sixteenth of October, 1863, he purchased from the defendant, residing in the parish of St. Landry, his cotton crop, consisting of eighty bales of cotton, then on the plantation of the latter in said parish, and asks for the delivery thereof and damages to the amount of five thousand dollars.

The exception is that the contract is an immoral one, being one between parties residing at the time within tho different hostile military lines, and prohibited by the acts of Congress, the proclamations of the President and the laws of nations.'

Tho exception was properly maintained.

All such trading was prohibited and the courts will not enforce any contracts arising therefrom, but will leave the parties where they have placed themselves. See Marchand v. Coyle, 18 A. 632; Hennen v. Gilman, 20 A. 241.

It is therefore ordered that the several judgments appealed from herein, to wit: in the cases numbered 9199, 9531 and 9536, on the docket of the District Court in the parish of St. Landry, be affirmed with costs.


text:
    No. 654.
    Josephine F. Fanelie Bouligny, Widow, v. Pierre Gary et al., Administrator.
    A peremptory exception that the petition discloses no ground of action, admits, for the purposes of the trial of the exception, that all the allegations in the petition are true, and no amount of evidence can have any iniluence in determining the question raised by the ex. ception.
    from the District Court, Parish of St. Mary. Gates, J.

      It. Perry, for plaintiff and appellant, Gary & Fournet and A. & F. Voorhies, for defendant and appellee.
   Ludeling, C. J.

Désiré Beraud died in 1865, and tho administrator of his succession having ascertained that the estate was insolvent, caused a meeting of the creditors to he convoked pursuant to articles 1160, 116Í, 1162 and 1163 of the Civil Code. At that meeting the plaintiff appeared and swore that she was a privileged creditor of the estate for the sum of $1200, constituted as her dower by marriage contract with the deceased. And the administrator having caused the property to be advertised for sale upon terms different from those she had indicated at the meeting, she has obtained an injunction to prohibit ihe sale, on the ground that as a privileged creditor, she has a right to have so much of the effects of the succession sold as may ho necessary to satisfy her claim, on such terms as she chooses.

The defendants filed the peremptory exception, “that the petition docs not disclose any ground of action, and that the allegations show that the rights of the plaintiff have not been liquidated or settled so as to enable her to vote in the deliberations of creditors.”

The exception is in the nature of a demurrer, and admits all tile allegations in tho petition to be true.

It is difficult to discover wherein the allegations of the petition are defective. The material allegations of the petition are that the estate is insolvent; that she appeared at the meeting of tho creditors and indicated, in the manner pointed out' by law, upon what terms she desired tho property sold; that she has renounced the community which existed between her and her husband; that “she is a privileged and mortgage creditor of said insolvent estate in the sum of twelve hundred dollars, duo to her by her deceased husband as dowry, constituted per marriage contract,” “ for the restoration and payment of which she has a privilege,” etc; and that she will be irreparably injured by the sale.

On the trial of' the exception the defendant offered copies of the inventory and of the marriage contract. This was irregular. The exception judicially admits the truth of the allegations of the petition for tho purpose of the trial of the exception, and no amount of evidence could change the allegations which are made in the petition, and. which are admitted to be true. The evidence adduced should have no influence in determining the question raised by the exception. 4 N. S. Shelmerdine v. Duffy; 13 An. 179; Hiestand v. New Orleans; 14 An. 138. The exception should have been overruled.

It is therefore ordered, that the judgment of the District Court be avoided and reversed, and that the case be remanded to the District Court to be proceeded with according to law.


text:
    No. 703.
    Heirs of Bedell et al. v. Cilesie Hayes, Tutrix, etc. Adelard Carlin, Intervenor.
    An intervenor cannot he heard hy exception, to the form of action by the plaintiffs.
    A decree of the court homglognting the proceedings of a family meeting which authorized the adjudication of the community property to the surviving parent on the estimate of the inventory, amounts to a sale of the property to the survivor, and not a judgment for money on which execution could issue.
    A creditor intervening in a suit, by the hoi’-s against their mother, to enforce payment of their interests in their father’s estate which she has purchased, by opposing the validity of the claims of the heirs is not instituting an inquiry into the correctness of the judgment approving the adjudication.
    The heirs of a deceased parent cannot recover from the survivor, who has purchased the community interest of the deceased, that portion of the price which is shown to be for slaves bcongingto the estate oi their deceased parent. Constitution, Art. 128; 19 An. 234.
    XL PPEAL from tlie District Court, parish of St. Mary. Gates, J.

      J. G. Oliver & Dumartrait, aud De JBlane c6 Perry, for intervenor and appellant, I). Oaffery, for appellees.
   Howe, J.

Jotham H. Bedell died in the parish of St. Mary in tlie year 1859, leaving a large property in community with his wife, Mrs. Cilesie Hayes, and separate property amounting to $10,000. Tlie surviving wife was confirmed as natural tutrix of her minor children, and Edmund Bose appointed under tutor, on the thirtieth of January, 1860. An inventory was made and on the sixteenth day of February, 1860, the community property was adjudicated to tlie widow at the estimated value, $75,978 33.

In 1863, Emily Bedell, one of the minors died, and her share was inherited, one-fourth by tlie widow, and tliree-foufths by the other children. In 1867, this action was instituted hy the heirs who had become of age, and by Bose, under tutor of those w: o still rem lined minors, to obtain judgment against tlie defendant for the amounts due each respectively and a sale under their tacit and special mortgages.

Adelard Carlin intervened, claiming to be a creditor of the defendant for $14,537 20, subject to a credit of $8000, upon a note made by bpr on the first of March, 1862, and secured by special mortgage on her lands. He excepted to the form of the action by tlie lieirs, and to the capacity of the under tutor to sue. The suit as to the under tutor was dismissed. The exception of the intervenor to the form of tlie action was properly overruled. As intervenor he had no right to raise this question.

The intervenor further opposed the claim of the plaintiffs upon the merits.

The defendant by answer admitted herself indebted to the heirs and filed an account thereof.

The minors Catherine Bedell and Marietta Bedell, who, with Elizabeth Bedell, had been represented as plaintiffs by Rose, having- been emancipated, intervened and asked to become plaintiffs, and set up the same claim as the other plaintiffs.

There was judgment rejecting the demand of the intervenor Carlin, and in favor of the plaintiff's for the amounts set forth in the account filed by the defendant, and that their legal and special mortgage take effect from January 30, 1300. The intervenor Carlin appealed.

There remains three questions to be disposed of presented by the intervention of the appellant and by the evidence.

I. The intervenor objects that the c:aim of the minors against their natural tutrix for $1 >,0 '0, the separate property of their father, is not established, by sufficient proof. It was included in the account of the tutrix made in 1860, at a time not suspicious, when the defendant was in good circumstances, more than two years before the debt to Carlin was contracted. It was homologated by the court. Its correctness is not denied or put at issue by the petition of intervention of Carlin, and the account in which it figures as a prominent item was offered by the plaintiffs and received in evidence without objection. It would therefore seem that this portion of the claim of plaintiffs is sufficiently established.

II. It is contended by the appellant that, as appears by the record, the community property adjudicated to the defendant was in part composed of slaves, the estimated value of which he calculates at $40,960, and that the account also shows an item in favor of the minors for the hire of a slave, $465 — and that these items should have been disallowed. The court a qua erred, we think in not reducing the claim of the minors by the amount of the price of the slaves held in common. The adjudication to the surviving parent was a sale. The estimate of the inventory was a price. A portion of the objects of the sale were persons. C. C. 338; Constitution, article 128 ; 19 Ann. 234.

The judge a quo says in his reasons for judgment:

“The slaves were adjudicated to the survivor of the community, upon the advice of a family meeting, whose proceedings were regularly homologated by judgment, and the judgment thus rendered cannot be inquired into collaterally.”

It is quite true that as a general rule judgments cannot be inquired into collaterally; but we do not perceive that, as to this branch of the case, the intervenor is making such inquiry. The family meeting advised an adjudication, the judgment approved the advice. From this resulted a sale; from this sale a debt; from this debt a mortgage. There was no judgment against the defendant at that time for a sum of' money, with a resulting judicial mortgage, or recognition of any other sort of mortgage. If there had been, this suit would have been unnecessary as to the plaintiffs, and such judgment as there was in 1860, homologating the proceedings of the family meeting, the appellant does not complain of. lie merely asks us not to enforce the debt arising from the execution of the judgment so far as it was a contract for the sale of persons. To the extent, then, of the price of slaves the claim of tlie plaintiffs must be reduced.

The hire of the slave claimed to have belonged to the minors, stands upon a different basis. It appears that the tutrix from 1859 received for this hire $465. She received it for the. minors. Some one chose to pay her so much money for the minors. It is not her money. The minors, and no other persons, claim it. The tutrix must account for it even if she received it unduly. C. C. 2974. •

III. It is contended by the appellant that no interest is due by the tutrix upon the araouDt of $10,000 received by her October 8, 1859, and upon the minors’ share of the community property adjudicated to her February 16, 1860. The reasons urged are the same as those presented in the case of Fuselier v. Babineau, 14 Ann. 764. It was there held that interest was due by the tutor upon money coming into his hands; and that the question raised was no longer an open one. See also the cases in 3 La. 194; 4 R. 300; 5 Ann. 565; 10 Ann. 289.

Upon the principle of stare decisis, we do not feel authorized to reopen the controversy on this point. And as regards the community property adjudicated to the defendant, the law seems to provide expressly for the interest, as well as the principal, of the debt created by the adjudication. C. C. 333, and act of March 17, 1826.

The account, however, on which the judgment is based, and to which, giving no specific amounts, it refers, shows that the interest is repeatedly compounded in cases where its annual amount, m excess of the expenses of the ward, is_ less than $500. This we think erroneous, C. C. 341. •

For tlie reasons given, it is ordered and adjudged that the judgment ajipealed from be reversed, and the cause remande!, that the account of tlie defendant as tutrix may be amended and stated in accordance with this decision, and to be further proceeded with according to law, costs of the apppeal to be paid by the appellees.


text:
    No. 722.
    Robert S. Perry, Administrator, v. Parish of Vermilion.
    Warrants for money drawn by the police jury on the parish are prescribed by the lapse of five years from the time they become due.
    from the Seventh District Court, parish of Vermilion. Porter, J.

      I:i. S. Perry, for plaintiff and appellee, Joseph S, Breaux, for defendant and appellant.
   Wyly, J.

Plaintiff bases Ms action on certain warrants of the police jury of the parish of Yermilion hold by him, and the court gave him judgment for the amount claimed.

The defendant has appealed.

In bar of the action the defendant pleaded the prescription of five years, the warrants being then over five years past due. We think the judge a quo erred in not maintaining the plea of prescription. Plaintiff declared upon the unconditional obligation of the defendant; it was prescribed, presumed to be paid.

We see no reason why the parish of Vermilion, a juridical person, should not, as well as any other person, be permitted to plead the prescription of five years against its warrants. Prescription is a mode of extinguishing obligations, the same as payment and other modes; and we know of no law prohibiting the extinguishment of the obligation declared upon by prescription, or which prevents the parish from making the same defenses that any other person might make to a similar obligation.

The doctrine of novation resorted to, to evade the plea of prescription might apply as well to notes or drafts usually given by persons in evidence of debt. It does not apply to this case. The suit was not instituted upon the original debt, it was based on the warrants of the police jury. They evidence the debt, whatever the consideration may have been, and they cannot establish it because of prescription.

It is therefore ordered that the judgment of the court a qua be reversed and annulled, and it is now ordered that there be judgment for the defendant, plaintiff paying all costs.


author: Howell, J.

text:
    No. 622.
    Emily Sittig, Tutrix, v. A. W. Littell, et als.
    “Where judgment has been rendered in the lower court against the maker and indorser of a promissory note, and the maker appeals, he must make the indorser a party, otherwise the appeal will be dismissed for want of proper parties.
    from the District Court, parish of St. Landry. Bailey, J.

      T. II. <& B. Lewis, for plaintiff and appellee, JDuprie & Garland, for defendants and anpellants.
   Howell, J.

In this case judgment in solido was obtained against the two makers and the indorser of a promissory note, from which the two makers took this appeal by petition and asked that the plaintiff be cited. It is manifest that the indorser has an interest and should be a party to the appeal, and as this court will notice, of its own motion, the want of proper parties, the appeal must be dismissed. 12 R. 203 ; 4 A. 577; 11 A. 409; 12 A. 755, 774, 801; 3 A. 317; 19 A. 137.

It is therefore ordered that the appeal herein be dismissed with costs.


text:
    No. 684.
    A. P. Noblom v. James T. Swords.
    A contract made between two parties, the one residing within the Federal lines of military occupation and the other within the so-called Confederate lines, during the late war, is prohibited by act of Congress, and is therefore null. \
    from the Eighth District Court, parish of St. Landry. Bailey, J.

      B. A. Martel for plaintiff and appellant. James M. Porter and John JH. King for defendant and appellee.
   Wyly, J.

The contract upon which this action is based reads as follows:

“ Big Cane, Parish or St. Landry, Oct. 11, ’63. “Mr. A. P. Noblom

J T S “Bought of James T. Swords.

- “25 bales of cotton, at $60.$1,500 00 N “ That cotton now in seed and stored away in my gin bouse- on my plantation, situated in Big Cane, 2 miles from my landing. I obligate to gin it as soon as baling and rope is furnished me by the purchaser, and to forward to my landing whenever called for, and in good order. The cotton will be marked as per margin.

“JAMES T. SWORDS.

“ Witness :

J. A. Cappel,

D. A. Coney.”

The defendant pleads in bar of this action that the contract was made in violation of a prohibitory law, and therefore void, the plaintiff then residing in New Orleans in the Federal lines, and the defendant in the parish of St. Landry then in the Confederate lines.

The District Court gave judgment for the defendant, and the plaintiff has appealed.

The evidence in the record fully establishes the fact, that at the time of the contract the plaintiff resided in the city of New Orleans inside of the Union lines, and the defendant resided in the parish of St. Landry within rebel lines.

Commercial transactions of this character were inhibited by an act of Congress for purposes of public policy, and the contract was without effect, producing no obligation whatever. Marchaud v. Coyle, 18 A. 632.

It is ordered that the judgment of the Court below be affirmed with costs.