author:
Eustis, C. J.
     Preston, J.,

text:
    John Bacon et al. Trustees, &c., v. Dahlgreen and Wife et al.
    A judgment, pending an appeal, will not sustain a plea of res judicata.

    The following was the form of the note on which defendants were sued: “ Natchez, January 27, 1839. On the first of March after date, we, or either of us, promise to pay the president, directors and company of the Planters' Bank of the State of Mississippi, for value received, $G3,945, payable and negotiable at the Planters' Bank of the State of 'Mississippi, at Natchez. Mary M. Ellis, administratrix of T. G-. Ellis, deceased; John Houth, Elias Ogden.” Held: Under our laws, an instrument of this kind would be prescribed by the lapse of ten years from its maturity; and this prescription will be applied to contracts made out of the State, when sought tobe enforced in our courts.
    The prescription of the forum. or place where the remedy is sought, must govern in all , suits for the collection of debts. But this rule does not conflict with the well recognized doctrine, that a title to movable property complete in the party, acquired by prescription resulting from possession, or otherwise; will enable him to recover the same, in a State other than that in which the right of ownership has been thus acquired.
    A surety on a note, when sued in Louisiana, cannot defeat the action by showing that the principal debtor bad sustained a plea of the statute of limitations, to an action brought on the same note in Mississippi.
    Where the note sued on was made in the State of Mississippi, and payable there, the obligations created by it must be tested by the laws of that State; and whatever acts of the parties which operate an extinguishment of the contract there, will undoubtedly prevent a recovery elsewhere.
    An agreement to give time to the principal, which will discharge the sureties, under the laws of Mississippi, must he a positive and binding agreement, with the principal, for a definite time, based upon a valuable consideration, sufficient to tie up and restrain the creditor during the time for which the indulgence is given; and the consideration must be such that it can be enforced in a court of justice.

      It is the intention of the parties to an instrument which renders it negotiable, if expressed in terms which may have that effect, and any terms expressing the intent will render the bill or note negotiable. Preston, X, dissenting.
    The note sued on, although not payable to order or bearer, is negotiable, under the laws of Mississippi, and the prescription of five years is a bar to an action brought on it in this State. Preston. X, dissenting.
    Where the principal debtor is discharged the surety is also discharged. Presión, X, dissenting.
    APPEAL from the District Court of the Parish of Tensas, J. N. T. Richardson, J".

      Stacy and Sparrow, for plaintiffs.
    This question has been settled against the defendant, by the Supreme Court of the United States in the cases of the Planters’ Bank v. Sharp et al and Baldwin etal. v. Payne et al. 6 Howard’s Rep. 301 to 344. The doctrine established by those decisions has been since adopted and followed by the High Court of Errors and Appeals of the State of Mississippi. 9 Smedes and Marshall’s Rep. 394 ; 10 lb. 434 ; 11 lb. 573; and is embodied in, and constitutes a part of the jurisprudence of that State.
    As no evidence has been introduced in support of this objection, nothing is necessary to be said upon it.
    The obligation is not payable to order or bearer, and not negotiable by the commercial law, or the laws of Louisiana. "We suppose, that after examining the decisions reported in 3 Ann. 220; 4 Ann. 234 and 127, and arts. 3505 and 3508 of the Civil Code, the most sceptical will admit, that the prescription of ten, and not five years, or the prescription of six years, in Mississippi, applies to the obligation sued on.
    We have examined, and answered, as we hope, successfully, all the defences pleaded by the defendant in the district court. He, however, attempts to show, in the argument of the case, that the plaintiffs are not entitled to recover, because they have given time to the principal debtor for the payment of the debt, without the consent of the sureties. To this the plaintiffs reply, that no such objection has been made, or defence filed ; which, if the party possessed, he was bound to plead specially by way of exception, in order to avail himself of it. This is the established and universal rule of practice. Code of Practice, arts. 345, 346. And a judgment is illegal, based on an exception not pleaded. 10 L. R. 169. Peremptory exceptions must be spepially pleaded. 3 R. R. 360 and 440. An exception, that the party has been released by the granting of an extension of time given, must be specially pleaded in the lower court, or it will not be noticed in the Supreme Court. If not made, it is presumed to have been waived. Gas Bank v. Hudson, 5 R. R, 486. And this exception, to be valid and tenable, must state that the extension of time was given without the consent of the defendant. Gordons. Dreuxel al., 6 R. R. 406. Green v. Brandon,

    1 Walker’s Miss. Rep. 372. No such exception having been filed, or notified to plaintiffs’ by the defendant, he cannot take the plaintiffs by surprise, by setting it up verbally.
    But., if the defence had been regularly made, it would not have released the defendant. The obligation sued on, was both executed and made payable in Mississippi. It was essentially a Mississippi contract in everything relating to it, and must, as to everything, except prescription and as to remedies for enforcing it, be governed exclusively by the laws of that State. Story’s Conflict of Laws, No. 331, 332, 340, 342.
    Now, notwithstanding the decisions of this honorable court in the cases of Morton v. Halsted, 1 Ann. 192. and Adié v. Metoyer, lb. 259, which were based upon our Civil Code, it is certain, that under the jurisprudence of the common law, in order that the giving of time by the creditor to the principal debtor, without the consent of the surety, should operate a release of the latter; it is necessary that there should be a consideration given, paid, or promised, for the extension. If given without, the agreement to give time is nudum pactum, and the surety is not released. This consideration may be of various descriptions, by changing the debt; by taking further collateral security; by receiving a part of the debt in cash, or by stipulating, that a consideration or bonus should be paid for it, &c. But, to have the effect contended for, it is necessary that there should be a valuable consideration. It is so laid down by all the common law writers on the subject. 3 Kent’s Com. Ill, 112. Bailey on Bills, 360.
      Planters’ Bankv. Sellman, 2 Gill and Johns. 230, which is a case precisely in point. Story on Promissory Notes, Nos. 412 to 422, who decides that a party bound in solido, although inter se he may be a surety,will not be discharged by any agreement to give time to one of the other parties. The authorities are reviewed, and the same doctrine sustained by the Supreme Court of the United States in the case of Lemore v. Powell, 12 Wheaton’s Rep. 555. The High Court of Errors and Appeals of Mississippi, from the date of its organization to the present time, presents an unbroken chain of decisions establishing and confirming the same doctrine in its fullest extent. 4 Howard’s Miss. Rep. 690. 5 lb. 633. 3 S. and M. R. 647. 7 lb. 522. 9 lb. 474. 10 lb. 344. 12 lb. 535, and the authorities cited in said decisions. To produce a release of the security four things must concur: 1. A promise to indulge. 2. That promise to indulge, must be definite as to time. 3. “A consideration, for without it, a promise to indulge is not binding.” 4. That the surety has not assented. “ There must be some arrangement or dealing between the principal debtor and creditor, which operates as a fraud upon the surety.” A mere consent to delay payment, cannot be so considered. 4 H ward’s Rep. 693.
    Now. what are the facts of the case before the court! Mrs. Ellis was personally liable for the payment of the note; Dahlgreen, by marrying her, became, under the common law, also personally bound for it, and so expresses himself in his letter, dated the 29th March, 1842, and wishes to make arrangements to pay it. He was no original party to the contract, but since its inception, by marrying one of the parties, became liable under it. It was to him, and not to his wife, or to any other person, that the prqjpise of indulgence was given. All the original parties to the obligation remained in statu quo. There was no promise to indulge them. But Dahlgreen offered to secure the debt by a valuable collateral security — a mortgage on one hundred and forty slaves, if the indulgence were granted. It was not received or taken by Roberts ; there was merely an understanding, based on no consideration whatever, that he, Dahlgreen, should have six years within which to pay the debt. The case is fully covered by the decisions before quoted, and the sureties, if being bound in solido, they can be called such, were not released Besides, any contract with Dahlgreen to extend the time as to him, who was not an original party, could not have that effect.
    Defendants have offered in evidence, the statute of limitations of Mississippi, as to claims against estates. He has not plead that the claim was either barred or extinguished. If the statute is to be considered simply as one of limitations, it will *ot govern the case, but the lex fori. The decision in Harrison v. Slacy, 6 R. R. 15, is palpably wrong, and has been disregarded by the Circuit Court of the United States, in Nicholson v. Marders. If the, statute is relied upon ns operating an extinction or release of the debt, it should have been specially pleaded; and not being so pleaded, cannot be noticed. See authorities before quoted.
    But the obligation sued on or not declared as sued on, as a claim against the estate of Ellis. True, it is stated that the note was given for a debt of the estate of Ellis ; but. the estate is not sought to be made liable ; neither is Mary M. Ellis, as administratrix. But it is alleged, that by signing it, she became personally liable to pay it, and the suit is brought against her individually. That she was so liable, see the following authorities: 2 Howard’s Miss. Rep. 851. 3 lb. 176. 6 lb. 371. 1 S. and M Miss. Rep. 666. 3 lb. 425. The statute could not, of course, apply as to individual liability.

      Benjamin and Micou, H. B. Shaw and S. R. Walker, for defendants.
    In Lacoste v. Benton, 3 Ann. 220, the court decides that, prescript in of ten years only can be invoked, on a similar instrument. This decision is based upon that of Bank of United, Slates v. Donally, 8 Peters 373, but we think the cases are distinguishable.
    The Viaginia statute relied on in 8 Peters, applied to all obligations for the payment of money, other than specialities, or sealed instruments. It is clear that the instrument in question was not a sealed instrument, and the law of Kentucky giving it the effect of a sealed instrument, did not make it one. The case was therefore properly decided. It was a decision on the law of limitation wholly, and the lex fori, according to the admitted principle, governed. The instrument was not within the description of the law for the longer term of limitation, and therefore fell under the short term.

      But, in this case, we think the instrument sued on is within the description of art. 3505. Not only notes and bills to order, but all effects, that is, obligations negotiable, or transferable by endorsement or delivery are embraced.
    It is obvious that there is a preliminary question, before the law of prescription arises. You must first ascertain the nature of the instrument, its character, &c., before you can determine what prescription applies. The nature of the instrument, and the obligations it imposes on the maker, are questions not necessarily governed by the lex fori. After the instrument has been classed, then the prescription is applied according to the law of the former.
    The first question then, is : Is the note sued on, an obligation transferable by endorsement or delivery, in Louisiana ? .
    It is made so by statute of Mississippi, where the contract took place. The statute of 1822 declares, that all obligations for money, whether payable to order or not, may be assigned by endorsement, and that the assignee may sue in his own name. Hutchinson’s Dig. 640.
    The note in question is made under that law, and the question arises, whether its negotiability or assignability is not inherent in the contract, so as to make it equally assignable eveiywhere else. In other words, whether the quality of negotiability is not a part of the contract? If I promise to pay $100 to A, and the law gives to A power to assign the obligation, by endorsement, do I not promise to pay to A or his assignee?
    The precise question is put by Judge Story, but he does not treat it as one settled by authority. He evidently inclines to the opinion, thatthe negotiability is inherent in the contract. “ It may be truly said,” says this writer-, “that the transfer is entirely in conformity with the intent of the parties, and to the law of the original contract.” Story on Bills, § 174.
    The reverse of the proposition, that an endorsement in blank, which does not, by the law of France, transfer the property in the note, will not be held in England to transfer it, has been held in England. Trimbey v. Vignier, 1 Bing. New Cases, 159, (27 Eng. Com. Law Lib.) and the decision is quoted and approved by Judge Story, because the right of action relates “ not to the form of the remedy, but to the interpretation and obligation of the contract.” Story’s Conflict, § 316, a. And to the same point in § 253, a.
    The code declares that any debt is assignable, and on any credit whatever the assignee may sue in his own name. The transfer is complete between the parties by the giving of the title. Code, 2612. What is the title referred to seems ambiguous. If the obligation is in writing, the delivery of the obligation would satisfy the language of the law. If not in writing, then the written transfer may be regarded as the title. But the authors tell us that a credit, a debt, a creance, may be transferred, either by authentic act, sous seing privé, or verbally; the trasnfer is complete, by the simple consent as to the thing and the price. 16 Duranton, 492.

      Cession et transport are synonymes, and the cession of credits is, in general, governed by the same rules that apply to the sale of corporeal objects. 2 Zacharite, 551-2.
    The transfer, (transport,) like all other sales, is perfect between the parties, by the mutual consent as to the object and the price. Troplong, vente, n. 880. The delivery is made “par la remise du litre," which is the mode pointed out for delivery of incorporeal rights ; but this is not necessary to transfer the title, for this the mere consent or agreement is necessary. “ Ce resultat est deja obtenupar le eonsentement." Code, 1583. Ib. 881.
    So in the Diet, de Droit Come., title Transport, Cession, it is said that a debt, a share in a partnership, or any other incorporeal right, may be sold like any movable object. The title, le litre, must not however be mistaken for the debt, of which it is only the proof, and its delivery is not, in general, sufficient to transfer the property, so far as third persons are concerned, “ á V&gard des tiers." It is therefore sufficient so far as the parties are concerned.
    The same book teaches, that the above is the general rule, applicable where the law has not provided some other mode of transfer. Now, as to bills of exchange, by the Code du cormm,., a. 137-8, they pass by special endorsement, but not by general endorsement; this will account for the case cited in Story’s Conflict, § 316, a. (above.) As to these instruments there is a special law, and the mere endorsement of the name of the payee does not import a transfer. But in the absence of any special law, the general principles laid down in the code apply, 1st. Not only corporeal objects, but incorporeal, such as a debt, an inheritance, a servitude, or other rights, may be sold, a. 2424. 2d. The transfer, as between the parties, is complete by the giving of the title; a. 2612.
    We have not yet referred to the effect of the words negotiable and payable at, &c. Here, again, we are so unfortunate as to encounter the opinion of the court in Young v. Crossgrove, 4 Ann. 235.
    It is well settled that no precise form of words is necessary to make an obligation negotiable. Any form, indicating the intention to give it a negotiable character, is sufficient. United States v. White, 2 Hill, 61. Chitty on Bills, 159, 195, (ed. 1842.) Story on Notes, 15, 44.
    In the case of Crossgrove, the court reads “ negotiable” and “ payable” as synonymous; in other words, the woi’d “negotiable” is expunged.
    The word negotiable is sometimes used to convey an idea expressing something more than mere negotiability, to wit, negotiability without being open to equities and defences. The negotiability is merely and simply its transferable quality; that quality may remain whether the equities between the original parties be admitted or not. Thus, a note is negotiable after maturity, though if received after protest, it is open to defences. Story on Notes, § 180.
    An endorsement, annexing a condition, does not affect the negotiability, but it gives notice of consideration and admits the equities. Tappan v. .Ely, 11 Wend. 362.
    The very rule of the law merchant, that the consideration may be inquired into unless the bill has passed, without notice for value, and in the ordinary course of trade, shows that the mere transferable nature of the bill, is only one of the elemonts constituting its security as an object of commerce. In all suits between the original parties, defences arising out of the consideration are heard, but the hearing of these defences does not impugn the character of the instrument. It may be negotiable, although never negotiated.
    The question, whether a debt barred by limitation in the State where the contract was made, and where the parties resided, until the full term of limitation expired, can sustain an action in another Stale, to which the defendant may afterwards remove, may be regarded as an unsettled question. Judge Story expresses the opinion that the action cannot, in such case, be maintained. His opinion has been followed in Alabama; and Troplong considers a debt extinguished and at an end by the expiration of the term for prescription. 8 Porter’s Rep. 1 Troplong, Prescription, n. 29. Story’s Conflict. 4 Mason’s Rep. &c.
    That a difference exists, for many purposes, between the effect of limitation before and after the term has expired, is undeniable. Thus: prescription does not run against the United States, and yet if a debt, already prescribed, be transferred to the United States they cannot recover, because the right to the limitation was fully acquired. United States v. Buford, 3 Peters, 30. United S:ates v. White, 2 Hill, 61. So, if a debt be barred, the acknowledgment of a partner or a debtor, in solido, will not revive it as to another partner or debtor. Davis v. Uouren, 6 R. R. 256. Comstock’s Rep. 523, &c.
    It is also fully established, that a title made perfect by prescription in one country, is good everywhere else. Shelby v. Gay, 11 Wheat. 361. Broh v. Jenkins, 9 M. R. 557. Story’s Conflict, 581.
    The opinion of Judge Story, however, respecting the effect of limitation, has not generally been followed by the courts. The courts of Massachusetts decide the reverse, and the point is said to have arisen in The Union Manufacturing Company v. Lobdell. 7 N. S. 108, although it does not appear by the report of the case, that the precise question presented by Judge Story was considered. In the case of Brohv. Jenkins, 9 M. R., the question is noticed but not decided. It must therefore be admitted, that the opinion of Judge Story and of Troplong, are not sufficiently sustained by judicial decisions to be relied upon as authority.
    There is, however, a proposition which is discussed by Judge Story, and in which he is fully supported by the courts; it is, that if by the terms of the statute loci contractus, the debt is really extinguished ; then, a debt extinguished by the statute, is extinguished everywhere. This proposition received the assent of the English judges in Hulen v. Steiner, 2 Bingham, N. C. 202, (29 Eng. Law Lib.) and in our late Supreme Court in Harrison v. Stacy, 6 R. R. 16. The counsel for appellant say this decision was palpably wrong, and was disregarded by the Circuit Court of the United States in Nicholson v. Marders. He has not favored us with a reference to the report of this decision, and we have been unable to find it. We believe, however, that the proposition, so far from being wrong, is clearly correct.

      Now, what is the difference between the two opinions of Judge Story, to which we have referred 1 It seems to be this: the first opinion cited is, in substance, that of Troplong, that the law of limitation of itself extinguishes the debt; the second is, that if the debt be admitted to be extinguished where contracted, it must be held to be extinguished everywhere else.
    In the common law authorities a judgment is always said to be conclusive until reversed ; hence the possibility of reversal does not prevent its being held conclusive. See several cases cited in 2 Supt. U. S. D. 230, Nos. 281 and 299. Warburton v. King, 1 McLean, 460. 3 Peters, 203. So Kent speaks of a judgment pronounced, and carried into effect, as conclusive.” 2 Kent, 120 ; and the courts in Mississippi give to the judgment of any competent court the presumption of correctness. 1 Howard, Miss. Rep. 163. 2 U. S. D. 644, n. 144, 145, 146. No. 151, p. 649, n. 259, 261, 266.
    Judgment against principal conclusive as to the default against the sureties. Ib. 650, n. 270.
   By the court:

Eustis, C. J.

This appeal is taken by the plaintiffs, who are trustees of the late Bank of the United States, from a judgment rendered against them in favor

of the defendant, John Routh, in the court of the Tenth District, sitting in the Parish of Tensas.

The suit was brought for a large balance, alleged to be due by Routh and others, on a written obligation to pay to the President, Directors and Company of the Planter’s Bank of Mississippi, the sum of $63,945, on the first of March after date, &c. The instrument was signed by all the parties, and bears date, Natchez, June 27th, 1839, and is there payable.

The objections taken by the counsel, for the defendant and appellee, against the right of action on the part of the plaintiffs, under the assignment of the obligation sued, we think untenable.

The judgment rendered in the court of chancery, in the State of Mississippi, on the demurrer of the defendants, Dahlgreen and wife, which is pleaded by the defendant, Routh, as res judicata in the present suit, we are of opinion, is no bar to the plaintiffs’ action ; because, beside other reasons, the case in which said judgment was rendered, is now pending on an appeal taken from said-judgment, by the plaintiffs.

The argument of the counsel for the defendant, has been directed to the discharge, under the statute of limitations of Mississippi, which is alleged to limit the right of action, on instruments of this kind, to the term of six years. It is said, that the action was barred, by lapse of time, against the principals contracting the obligation, and that no action can be maintained on it, against the defendant and appellee, who was a mere surety.

Under our laws, an instrument of this kind would be prescribed, by the lapse of ten years from its maturity, and this prescription is applied to contracts made out of the State, when sought to be enforced in our courts. Benton v. Lacoste. 3 Ann. 220. Young v. Crossgrove, 4 Ann. 234. Graves v. Routh, Ib. 127.

We have considered the objections made by counsel, to the character of the obligation sued on, in reference to our law of prescription. Most of them were presented on the argument of the cases of Lacoste v. Benton, and of Young v. Crossgrove, and we are confirmed in our original impression, of the correctness of the doctrine there established.

It seems to be conceded, that Routh bound himself as a surety only, the note having been given for the benefit of the succession of Ellis, with which Routh had no connection.

Although the judgment rendered in the court of chancery alluded to, is not technically res judicata between the parties, it is referred to by the counsel for the defendant, as a correct exposition of the effect of the statute of limitations of Mississippi, upon the obligations of the parties to the instrument sued on. It decides, in so many words, that the several payments made are not sufficient to prevent the operation of the statute, and that the plaintiffs’ claims are barred thereby. The demurrer of the defendants is accordingly sustained, and the plaintiffs’ bill dismissed.

But the counsel has failed to show that, by the law of Mississippi, all right of action against the defendant was extinguished, by the action of the plaintiffs on the note having been barred by the statute of limitations of that State, supposing the decision of the court appealed from to be a correct exposition of the law; and, as we are advised, such would not be the effect of the decision, supposing it to be final. Angelí on Limitations, § 22. Cone v. Colburn, 7 New Hampshire Reports, 368. Kerr v. Branden, 2 Howard, 910. Johnson v. The Planter's Bank, 4 Smedes and Marshall’s Report, 165. Cohen v. Commissioners of Sinking Fund, 7 Ib. 437. It must be borne in mind that Routh was not a party to the suit in chancery, he not having been served with process; the suit was against the principal debtors alone.

Nor is the advantage to the defendants cause perceived, in the establishment of the legal proposition, that the claim against the defendant must be governed by the statute of limitations of Mississippi, since the fact of the residence of Routh, in Louisiana, is not contested, nor is there any thing in the evidence which would subject the claim against him to the operation of that statute. Hutchinson’s Miss. Code, p. 827, § 12. The claim of the plaintiffs is, therefore, unimpaired, either by the judgment rendered in the court of chancery of Mississippi, in favor of the principal debtors, or by the statute of limitations of Mississippi.

As the question has been argued before us, as to the applicability of the laws of this State, and of Mississippi, to the right of the plaintiffs to recover, by reason of the lapse of time, we take occasion to state, that we think it settled, by the highest authority, that the prescription of the forum or place where the remedy is sought, must govern in all suits for the recovery of debts. It was so deter" mined in this State, after full argument, in the case of the Union Insurance Co. v. Lobdell, 11 Martin, N. S. 108. Such has been the established rule in the United States, and in the courts of Westminster Hall. 3 Johnson’s Rep. 267, Ruggles v. Keeler. 3 Johnson’s C. C. 218, Decouche v. Savetier. Williams v. Jones, 13 East. Rep. 439. 4 Cowan Rep. 530, Andrews v. Heriot, and cases there cited. 2 Mass. 84, Pearsall v. Devignt. McElmore v. Cohen, 13 Peters’ Rep. 327, and numerous other more recent decisions.

It is sufficient to cite, among the civilians, Huberus, Merlin, Boullenois, and VoSt, to the same effect. Huberus’ Jurispr. Univers. lib. 3, ch. 2, § 34. Merlin Rep. Verbo Prescription, sec. 1, § III, No. VII. Voét, Commentary on the Pandects, lib. 44, tit. 3, No. 12. Merlin, Questions de droit, Verbo Prescription. It is not only thus settled by authority, but expressly provided in the Code of Practice, art. 13.

We do not consider that this rule conflicts with the well recognized doctrine, that a title to movable property, complete in the party, acquired by prescription, resulting from possession or otherwise, will enable him to recover the same, in a State other than that in which the right of ownership has been acquired. Shelby v. Guy, 11 Wheaton, 373. Frierson v. Erwin, 5 Ann. 530.

It is further contended, that Routh, the defendant, is released from ail responsibility as a surety, in consequence of time having been given by the plaintiffs to the principal debtors. It appeal's that this note originally belonged to the Planter’s Bank of Mississippi, and was given by Mrs. Ellis, for a debt due by the succession of her husband. She afterwards' married Eahlgreen, who, under the laws of Mississippi, became responsible for the debts of his wife, by the fact of his marriage. The Bank of the United States being a large creditor of the Planter’s Bank, agreed to receive the amount of the indebtedness in bills receivable and notes owned by the latter. This note was among the number. Before it was taken by the plaintiffs, representing the Bank of the United States, Eahlgreen addressed a letter to their agent, in which he stated his wish to make arrangements for the payment of the note. He offered as security, a mortgage on one hundred and forty slaves. He states, “ I think the time ought not to be less than six annual installments. When I return to town I will see you again, as it will require some time to complete the arrangements.” The agent declined receiving the mortgage proposed by Eahlgreen, considering the note, as it then stood, made the debt more secure than it would be by changing it, and recinding the mortgage, but acceded to the proposition for the terms of payment. Eahlgreen made three payments; the last was in February, 1843, but none since, though repeatedly applied to. It appears, also, that in the agreement under which this note, with others, was received by the plaintiffs from the Planters’ Bank, it was stipulated, “that an extension of the time was to be granted to the parties to the paper transferred, of one to three years, from January, 1842, in equal annual payment, provided the security offered should be ample.”

There does not appear to be any other fact, which it is material to notice, which relates to the granting of time.

Does this granting of time operate a release of the surety from his suretyship, he having given no consent to any extension of the time of payment ?

By our laws, the prolongation of the term granted to the principal debtor, without the consent of the surety, operates a discharge of the latter. Code, 3032. The civil law was otherwise, and the principle has been preserved ill the article 2039 of the Napoleon Code, which provides, that the extension of the term of payment granted by the creditor, does not release the surety, who may, in such a case, himself sue the debtor, in order to compel him to make payment. Pothier on Obligations, No. —.

As the note sued on was made in the State of Mississippi, and is payable there, the obligations created by it must be tested by the laws of that State; and whatever acts of the parties which operate an extinguishment of the contract there, will undoubtedly prevent a recovery elsewhere. The act, from which it is said this discharge of the surety results, was done there, and in relation to persons there present. As to the effect of this act upon the right of the parties to the contract, those laws are alone to be considered.

As far as we are able to collect the rule of law on this subject, from the jurisprudence of that State, it seems to be uniformly settled, that there must be a positive and binding agreement, with the principal, for a definite time, based upon a valuable consideration, sufficient to tie up and restrain the creditor during the time for which the indulgence is given, or it will not discharge the surety. And the agreement for delay, which will discharge the surety, must be founded upon a sufficient consideration, and be such as can be enforced in a court of justice. Payne v. Commercial Bank of Natchez, 6 Smede and Marshall’s Reports, p. 24. Newell v. Hamor, 4 Howard’s (Miss.) Rep. 684. Wade v. Stanton, 5 Howard, 631. Wellington v. Gary, 7 Smede and Marshall’s Rep. 533.

In a case where the principal debtor urged the creditor not to sue, promising that, if he did not, he would pay the debt in a given time, and the holder did not sue, the surety was not held to be discharged. Nor will the mere voluntary promise to forbear, on a renewed assurance that the party will pay that which he is already bound to pay, where there is no other new consideration, discharge the surety. Montgomery v. Dillingham, 3 Smede and Marshall’s Rep 647.

There are several other cases referred to, in the brief of the counsel for the plaintiffs, to the same effect, which afford to us an established rule, which it only remains to apply to the facts of this ease.

Some explanation must be given of the law of Mississippi, relating to the subject of the consideration of agreement, which we assume to be in accordance with the elementary writers of the common law.

All contracts are, by the laws of England, distinguished into agreements by specialty, that is, under seal, and agreements by parol. If the agreement is merely written, and not a specialty, the consideration must be proved. To make a contract or agreement obligatory, the consideration must be either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made ; otherwise the contract or agreement is considered as nudum pactum, and cannot be enforced.

It seems to us obvious, that there was no sufficient consideration, in this sense, in the consent of the plaintiffs’ agent to give Dahlgreen time for the payment of this debt, and that, there being no consideration proved, the plaintiffs were not prevented from enforcing the payment of the note immediately, by any thing that passed between their agent and Dahlgreen.

Since the preparation of this opinion, a decree of the Court of Errors and Appeals of Mississippi, has been submitted to us, which affirms that of the vice chancellor, in the case mentioned in this opinion ; but, under the view we have taken of the effect of such a decree on the rights of the appellee, it operates no change in the conclusions to which we have arrived.

In conclusion, we consider that there is no sufficient defence to the plaintiffs action, and that they are entitled to judgment.

For the reason assigned in the written opinion of the court, read on the 26th of April last, and on file, It is ordered, adjudged and decreed, that the judgment of the district court be reversed; and it is further ordered and decreed, that the plaintiffs recover from the defendant, John Routh, the sum of $47,185 24, with eight per cent interest thereon, till paid, since the thirty-first day of January 1843, and the costs in both courts.

Preston, J.,

dissenting. This suit was instituted on the 27th of December, 1849, against John Routh, residing in the State of Louisiana, on the following instrument assigned to the plaintiffs:

“ $63,945. Natchez, January 27th, 1839. On the first of March afterdate, we, or either -of us, promise to pay the President, Directors and Company of the Planters’ Bank of the State of Mississippi, for value received, sixty-three thousand nine hundred and forty-five dollars, payable and negotiable at the Planters’ Bank of the State of Mississippi, at Natchez. . Mart M. Ellis, Adm’x. of J. G. Ellis, deceased; John Routh; Elias Ogden.”

There are credits on the note. The last is endorsed the 25th of February, 1843. It is not pretended that there is any later acknowledgement of the defendant’s liability. There was suit instituted in the State of Mississippi, against parties to the note, in January, 1849. So that, neither suit nor acknowledgement interrupted the prescription of five years, which is plead under article 3505 of our code against the present action upon the note.

The note was given by the Administratrix of an estate, and it is supposed that Routh, the present defendant, is only a surety on the note. A suit in equity was instituted in the State of Mississippi, against the estate, in January, 1849, and it was decided by the chancellor that a recovery was barred by the statute of limitations. An appeal was taken, which remains undecided. This court having equitable powers, I do not think that judgment should be rendered in this case against the defendant, until the suit in the State of Mississippiis decided. Otherwise, it might be decided that the obligation is extinguished as to the principal, but in full force against the surety ; for the statute of limitations of the State of Mississippi, like prescription under our code, extinguishes the legal obligation of a contract. This would conflict with our principles and laws, providing that the suretyship cannot exceed what may be due by the debtor, nor be contracted under more onerous conditions, and that the surety may require the creditor to discuss the properly of the principal obligor. Civil Code, art. 3006, 3014.

I am, moreover, of opinion, that the note sued upon is prescribed by art. 3505 of the Civil Code. It prescribes, “ Actions on bills of exchange, notes payable to order, or bearer, except bank notes, those, on all effects negotiable, or transferable by endorsement or delivery, are prescribed by five years, reckoning from the day when these engagements were payable.” The action on the note is therefore prescribed, if it be a negotiable instrument.

An instrument is negotiable which can be transferred by an endorsement on the back, so as to enable the assignee to sue for its contents in his own name. It should, further, not be subject to the equitable assets of the obligor, a qualification, which will be noticed as to the note in controversy. A statute of the State of Mississippi prescribes, that “ All bonds, obligations, bills, single promisory notes, and all other writings for the payment of money, or any other things, shall and may be assigned by endorsement, whether the same be made payable to order, or assigns of the obligee, or payee, or not; and the assignee, or endorsee, shall and may sue in his own name, and maintain any action which the obligee, or payee might or could have sued or maintained thereon, previous to assignment.”

The note was thus made negotiable by statute, in the State where it was executed. It is said it was still not negotiable, because the obligor could plead any offset against the payee. He could, under this statute, to the time of assignment, but not afterwards.

It was held by the High Court of Errors and Appeals of the State of Mississippi, in the case of Oldham v. Ledbetter, 1 How. Rep. 46, that by this statute, “ promisory notes may be assigned by endorsement, though the same be not made payable to order ; and by the principles of the common law, they are transferable by bare delivery. In either case there has operated a complete divestment of all rights to the contents of the note, and of all authority to control their appropriation on the part of the payer. In one case, the assignee is clothed with authority to sue in his own name ; in the other, the transferee is empowered to use the name of the payee to consummate his equitable interest by a collection of the money. The service of garnishment will not after transfer, though without notice, subject the debt due, by the maker, to the demand of the attacking creditor; for, as by assignment or delivery, the party into whose hands the note may coiné, is instanter vested with an absolute right to control its contents; the payer from that moment becomes the debtor of the holder, and responsable to him alone. The process of attachment cannot restore a relation which has ceased to exist, or appropriate rights of one individual to a discharge of the obligation of another. If this position should require aid from authority, a decision of the Supreme Court, Walker’s Reports, 389, made in reference to the existing laws on this subject, will be found fully to sustain it.” Under this decision, the negotiability of the note, after its assignment, was substantially established as to the maker, free of his subsequent equities, and I do not find it reversed. It can never lie in the mouth of the assignor or endorser, to say the instrument was not negotiable, because the payer might have equitable offsets against him before he assigned the instrument, and it was negotiable as to the holders, because it is not pretended by them that, in point of fact, there were any offsets against the note when it was negociated to them. They also have the guarantee of the jurisprudence settled by the decision quoted.

The defendant pleads the negotiability of the instrument against the bank that negotiated it, and assignees to whom it was negotiated. They cannot deny its negotiability; the first, because the statute and their acts made it negotiable, and the last, because, in point of fact, the instrument had every negotiable quality. Besides, for the very purpose of negotiating it, the parties made it negotiable in terms.

It is the intention of the parties to an instrument which renders it negotiable, if expressed in terms which may have that effect. And any terms expressing the intent, will render the bill or note negotiable. Chitty, 181. 1 Pard. 360-361.

It is laid down by elementary writers, that no form of words is absolutely necessary, to-produce that effect. Making the instrument payable to order, is the usual form. But if the parties declare on its face that the instrument shall be negotiable, it should have that effect, ns clearly as it can be implied, from the use of the word “order,” Any words, from whence it can be inferred, that the pprson making the bill, or note, or any other party to it, intended to be negotiable, will give it a transferable quality against that person. Chitty, 219, ed. of 1836.

The bank required the defendants to give them a note “ negotiable at the Planters’ Bank of Mississippi, at Natchez,” for their debt, and the debtor did so. This was undoubtedly intended to enable the bank to transfer it by endorsement, if she' chose, so as to enable her assignees to sue in their own name; to do precisely what has been done. The instrument has been assigned, so as to enable the assignees to sue in their own name for the whole debt. That embraces every requisite to the definition of negotiability.

It is a principle of the interpretation of all instruments, to give every word in them effect, if possible. The term “ negotiable,” in the note under consideration, would have no meaning, if the note was not negotiable. But it can and has meaning and effect, because the note has been transferred by endorsement, and the endorsees have every right and power which belonged to the payees. That makes the negotiability of the instrument.

There has been but a single adverse decision, by this court, in the case of Young v. Crossgrove, 4 Ann. 234. It is a question of evidence, and of the construction of an instrument of writing, not a question of law, and, therefore, I do not feel bound by the precedent.

The instrument, in my opinion, was, in Mississippi, by express statute, and is, in Louisiana, by its tprms, negotiable, and the action on it is prescribed by our code, which prescribes actions on negotiable instruments, by the lapse of five years between their maturity and the commencement of a suit.

I think the judgment of the district court should be affirmed, with costs.

Application for a re-hearing refused.

      Judgment, in this case, delivered on the 26th of April — decree rendered on the 9th of November.


source: Caselaw Access Project

author: Slidell , J.

license: Public Domain

text:
    Gauche v. Trautman.
    A person who buys a lease at a judicial sale, is not entitled to recover rent accruing after the sale, out of the funds produced by the sale.
    A party who procures a sale, will not be permitted to complain of any ambiguity in its terms.
    APPEAL from the First District Court of New Orleans, Larue, J.

      Cyprian Dufour, for plaintiff.

      M. M. Cohen, H. St. Paul and F. C. Laville, for defendant.
    The facts of this case bearing on the point on which it was decided by the Supreme Court, are thus stated by Judge Larue:
    “This is a rule for the distribution of funds in the hands of the sheriff, resulting from a sale of certain movables seized and sold in the case of John Gauche v. Mr. and Mrs. Trautman. The amount in the sheriff’s hand is $670 72, and the only question is, who of the claimants is entitled to it, and to what amount? On the 21st of April, 1851, Gauche obtained a judgment for $320, an amount of rent then due for the months of February and March, and a further judgment for the sum of $960, payable at the rate of $160 a month, up to the 1st day of October, 1851; and a further judgment for the sum of $220, with vendor’s privilege upon the fixtures in the store.
    “ The fixtures were sold for the sum of $34, and were bought by the plaintiff in the suit. To that amount he is entitled.
    “ After the judgment was rendered, he caused to be seized, and had sold, on the 16th of June, the lease of the premises, for the rent of which he had previously obtained judgment, which he bought himself, for the sum of $50.’’
   By the court:

Slidell , J.

Considering the judicial sale of the lease, and its purchase by the appellant, we are of opinion, that the court below did not err in refusing to allow him, out of the monies distributed under the sale, rent accruing after the 16th J une, 1851. According to the terms of advertisement, the purchaser of the lease was to pay rent accruing after such purchase. Such it seems would have been the obligations imposed on any third person who might have purchased. Even if there was an ambiguity in the terms of sale, the appellant, who procured the sale himself, aught not to be permitted to complain on that score, as the matter now stands.

Judgment affirmed, with costs.


author: Slidell, J.

text:
    David Granger, Owner of Ship Epaminandos, v. Campbell and Rickarby, et al.
    The privilege for freight, conferred hy article 3213 of the Civil Code, extends only to goods of which the Captain has, or has had, possession.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Josephs, for plaintiff.

      Goold,, Wolfe and Singleton, and Benjamin and Micou, for defendants.
   By the court:

Slidell, J.

The plaintiff is owner of the ship Epaminondas; and this suit grows out of a contract made by Gifney and Lovell, brokers for one Simpson, to furnish cargo to the amount of one thousand bales of cotton, at a stipulated rate of freight. After two hundred and five bales had been delivered to the ship, Simpson absconded, leaving his vendors, Bradley, Wilson 8f Co., unpaid. Part of the cotton was still in the cotton press, and the ship had acquired no control over it. The whole of the cotton, both that on ship-board and that in the cotton press, was seized, under writs sued out by the' vendors and by Campbell and Rickarby, who had made Simpson advances upon it. Meanwhile freights declined, and the vessel, being disappointed as to the shipment of the seven hundred and ninety-five bales, had to make up her cargo at reduced rates. The plaintiff insisted that he had a privilege upon the two hundred and five bales, for the loss of freight; and, to avoid injury to all parties by the delay of the ship, in consequence of the seizures, it was agreed that the two hundred and five bales shipped, should be bonded, and go forward in the vessel, the proceeds to be subject to the ship’s lawful claims. In the litigation which followed between Bradley, Wilson 8f Co. and Campbell and Rickarby, those proceeds were awarded to the latter, ( 7 Ann. —,) and the plaintiff now looks to them for the payment of his claim of damages. The freight of the two hundred and five bales has been paid.

We find no ground for any claim against Campbell and Rickarby directly under the agreement to furnish cargo; for that agreement was made with Sinypson, There was no privity of contract between the plaintiff and Campbell and Rickarby.

Then the only question remaining is, whether the plaintiff has a privilege upon the two hundred and five bales actually shipped, for the damages arising from Simpson's failure to ship the .seven hundred'and ninety-five bales. We think it clear he has not.

The article 3213 of the Civjl Code declares, that “The captain has a privilege for freight during fifteen days after the delivery of the merchandise, if it has not passed into third hands. He may even keep the goods, unless the shipper or consignee shall give him security for the payment of the freight.” The privilege thus conferred extends to goods of which the captain has, or has had, possession. Here the captain never had possession of the seven hundred and ninety-five bales.

Judgment affirmed; costs of appeal to be paid by appellant.


author: Rost, J.

text:
    Vincent Aicard v. Andrew Daly. Rule on Johnson to cancel a Mortgage.
    The probate sale of the separate property of the wife, made for the purpose of paying her debts, and of settling her succession, has the effect of canceling all the mortgages, existing in her name on the property sold. The curator, who administers the succession of his deceased wife, may purchase property at the probate sale.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Livingston, for Johnson.

      Warfield, for plaintiff.

      Miller, for recorder of mortgages.
   By the court:

Rost, J.

The first question in this case is, whether the probate sale of the separate property of the wife, made for the purpose of paying her debts, and of settling her succession, had the effect of canceling all the mortgages existing in her name, on the property sold. On this question, the present organ of the court differed from his brethren, on a former occasion, and thought the view he took most consonant with principle, if not with authority. As, however, authority has prevailed, and the decision of the court has become a rule of property, he feels bound to consider the question solved in the affirmative.

A town lot, belonging to Sarah Daly, and mortgaged by her to Garner Johnson, was sold at the probate sale of her succession, and purchased by Andrew Daly, through the agency of the curator of the succession, who was the husband of the deceased.

Andrew Daly subsequently mortgaged this lot to Micheaud, to secure the payment of a note given for a loan of money, and Micheaud transferred the note and mortgage to Aicard, the plaintiff.

Aicard caused the lot to be sold under that mortgage, and Gardner Johnson became the purchaser, at the price of $1,000, $500 of which he paid, and the other $500 he retained, to pay the mortgage he claims on the property, with interest.

Aicard took a rule upon him, to show cause why this mortgage should not be canceled, and erased from the records of the mortgage office, and why he should not be compelled to pay into tho hands of the sheriff, the sum of $500 ; the district court made the rule absolute, and Johnson has appealed!

If the probate sale was legal, the mortgage in favor of the appellant, must be considered as having been canceled by it, and there is an end of the case; but, it is urged that the sale was not legal, on account of the omission, by the curator, of material formalities, and also because he acted, at the sale, as agent of Daly, the purchaser.

Without noticing, in detail, the informalities alleged, which, under the settled jurisprudence of this court, do not appear to us material, it is a sufficient answer to that part of the defence, that Johnson is the ayant-cause of Daly, and holds, under him: that, instead of offering to return the property, the defence he makes is in affirmance of the probate sale, and that he cannot be permitted to avail himself of it, so far as it gives him a title, and to repudiate it when he cancels his mortgage.

The curator, being the husband of the deceased, had authority to purchase, even for himself, at the probate sale. Acts of 1840, p. 123.

The evidence of Daly, offered by the defendant, to prove that he, Daly, assumed the payment of Johnson's mortgage, and that he notified Micheaud of ‘this assumption-, was properly excluded. Daly is bound by his assumption, but Aicard has nothing to do with this personal obligation, and it cannot be seriously urged, that a mortgage binding upon the plaintiff, could be thus credited.

Judgment affirmed, with costs.


text:
    George C. McChesney et al. v. Andrew Daly.
    A PPEAL from the Third District Court of New Orleans, Kennedy J.
   By the court:

Rost, J.

This case is, in all respects, similar to that of Aicard against the same defendant, just determined; and, for the reasons therein given, the judgment is affirmed, with costs.


text:
    Foster & Co. v. Baer & Co. et al.
    Where an article is unsound at the date of the sale, the standard of responsibility of a bond fide seller, is the difference of value at the date of the sale between a sound and the unsound article. . '
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      M. M. Cohen, for plaintiffs.

      Hoffman and Ogden, Reynolds and Livingston, for defendants.
   By the court:

Slidell, J.

Upon the question of the right of Marlin, Owen <j. Co. to file an answer, we are unable to distinguish this case from Moran v. Tanner, 6 Ann. 119.

If the pork was unsound at the date of the sale by Martin, Owen Sf Co. to Baer & Co., the standard of responsibility of the former to the latter is the difference of value, at the date of the sale, between a sound and the unsound article. If, for example, the difference of value on the day of sale was 20 per cent, Baer S¡- Co. would be entitled to a deduction of twenty per cent from the price they paid, assuming the price was the fair market -value, at the time, of a sound article. In saying this is the standard, we assume that Martin, Owen <$• Co. sold in good faith. Bad faith might involve a larger responsibility; but this is not imputed, and its consequences need not be considered.

The date of the sale being the time to which we are to look, we are unable to ascertain the damages in the present case, as between Baer Sf Co. and Martin, Owen 8f Co. within the market rates at the date, nor the price paid being proved.

It is therefore decreed, that the judgment of the district court against Martin, Owen Sf Co., be reversed, and that tiis cause be remanded for further proceedings, the appellees to pay the costs of the appeal.


author: •Rost, J.

text:
    John Kelly v. Thos. Cook, — On a Rule taken by McGuigan.
    Article 684 of the Code of Practice, which prohibits a sale of property under execution, if the price offered does not exceed the amount of the privileges and mortgages with which it is encumbered ; and the article that authorizes the sheriff to raise the mortgage, the inscription of which is subsequent in date to that of the mortgage under which the sale is made, have exclusive reference to conventional mortgages.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      T. W. Collins, for McGuigan.

      Bright, for Mrs. Cook.

      W. W. King, for Recorder of Mortgages.
   By the court:

•Rost, J.

This case is not distinguishable from that of Young v. Municipality No. One, under the authority of which the district judge has decided it. The principle settled in that case is, that article 684 of the Code of Practice, which prohibits a sale of property under execution if the price offered does not exceed the amount of the privileges and mortgages with which it is encumbered, and the article which authorizes the sheriff to raise the mortgages, the inscription of which is subsequent in date to that of the mortgage under which the sale is made, have exclusive reference to conventional mortgages, and that no power is conferred upon either the sheriff or the judiciary to order judicial mortgages to be erased from the books of the recorder. This decision was made without reference to the date of the inscription of the judicial mortgages, and it is evident that no distinction can be made under the law.

The mortgage of which the appellant in this case claims the release, is a judicial mortgage, resulting from the inscription of a judgment of separation of property, obtained by the wife of the judgment debtor against her husband ; and neither the sheriff nor the district court were authorized to erase it. Whether this mortgage affects the property after the sale, is a question not before us under the issue.

Judgment affirmed, with costs.


author: Dunbar, J.

text:
    James McCandlish v. Kirkland et al.
    If the vendor retain possession of the thing sold, it is liable to seizure for his debts.
    APPEAL from the Fourth District Court of New Orleans, Strawhridge, J.

      Marr and Roberts, for plaintiff.

      Elmore and King, for defendants.
   By the court:

Dunbar, J.

J. B. Kirkland, the real defendant in this case, having a judgment against J. F. A. Boyle, took out an execution against him, and caused it to be levied on certain furniture found in a house rented and occupied by Boyle.

James McCandlish, the plaintiff in the present suit, enjoined the execution, claiming to be the owner of the furniture, under a sale from Boyle.

The defendant, in his answer, denies that the plaintiff is the owner of the property seized, and says that the sale to McCandlish was fraudulent and simulated.

We have carefully examined the evidence, and have come to the conclusion of the district judge, that, after the sale to McCandlish, the property sold -remained in the possession of the vendor, and was, therefore, liable to seizure by his creditors. Jordan v. Lewis et al., 1 Ann. 59.

The proof that the plaintiff produced of his good faith, and the reality of the sale, did not satisfy the district judge, nor can we say that it is satisfactory to us.

It is therefore ordered and decreed, that the judgment of the district court be affirmed, with costs.


text:
    New Orleans Canal and Banking Co. v. A. Shrœder & Co.
    The act of 15th of March, 1847, which declares, that no citizen of another State shall hereafter be arrested in this State, at the suit of a resident or non-resident creditor, except in cases where it shall be made to appear, by the oath of the creditor, that the debtor has absconded from his residence, applies to the citizens of the States of this Union only — not to the citizens of foreign States, or countries.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      E. A. Bradford, for plaintiff.

      li. Gaither, for defendant.
   By the court:

Dunbar, J.

This is an appeal from a judgment, dismissing a rule to set aside an arrest.

The defendant contends, that the arrest should have been set aside upon the ground that it is not alleged in the affidavit -for arrest, that he had absconded from his residence. That this is required by the Act of the Legislature of Louisiana, approved the 28th March, 1840, entitled an act to abolish imprisonment for debt, the 9th section of which, as amended by the act approved the 18th March, 1847, reads as follows: “That no citizen of another State shall hereafter be arrested in this State, at the suit of a resident or non-resident creditor, except in cases where it shall be made to appear, by the oath of the creditor, that the debtor has absconded from his residence.”

The affidavit states that the defendant, A. Schrader, resides out of the State of Louisiana, at Havre, in France, and the evidence shows him to be a native of Hamburg.

In determining the meaning to be given to the words, “citizen of another State,” in these acts of our Legislature, we must be governed by the well established principle of law, which has been embodied in the 14th article of our Civil Code: “ That the words of a law are generally to be understood in their most known and usual signification, without attending so much to the niceties of grammar rules, as to the general and popular use of the words.” There can be no doubt, we apprehend, that in their most known and. usual signification, the words “ citizen of another State,” mean, or convey to our minds the idea of a citizen of another State of this Union, and, we think, if the Legislature had intended to include in this provision of the act of 1840, the subjects or citizens of a foreign prince or government, it would have said so in plain and positive terms.

There is also another rule for the construction of statutes, in the Civil Code, apposite to the present case. Art. 18 declares, that “ The most universal and effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced tb® Legislature to enact it.” From the great monetary crisis of 1837, and the pecuniary embarassments of all the citizens and States of this Union that ensued up to the 28th March, 1840, the date of the passage of the act under consideration, it is a matter of history well known to all, that very numerous arrests for debt were made in this State, and particularly in New Orleans, of the citizens of our sister States, who were found transiently in this city, either for business or pleasure, and to such an extent had this been carried, that it was found to interfere materially with the trade and commerce of the city and State. It was to remedy this evil, that, we believe, the law was enacted, without reference to the citizens or subjects of a foreign country, State, or kingdom.

It is true, that imprisonment for debt is a relic of barbarism, which is fast disappearing in the progress of civilization, but the total abolition of it in Louisiana depends not upon the courts, but upon the wisdom and humanity of the legislative branch of our government. We, therefore, have to decide, that it was not necessary in this case for the plaintiff to make oath, that the defendant had absconded from his residence.

Upon the second ground of defence, that the defendant was not about to depart permanently from the State, without leaving in it sufficient property to satisfy plaintiff’s demand, after a careful perusal of the evidence, we cannot say that the district judge erred.

It is therefore ordered, adjugded and decreed, thatthe judgement of the district court be affirmed, with costs, &c.


author: Eustis, C. J.

text:
    Rousseau, Syndic of L. Bauregard, v. Louis Lovering.
    A surety is not a competent witness for his principal.
    APPEAL from the District Court of the Parish of Jefferson.

      J. S. Whitaker, for plaintiff,

      J. J. Michel, for defendant.
   By the court:

Eustis, C. J.

The only question in this case is presented by a bill of exceptions. The action is on a note drawn by Lewis Lovering, in favor of John Hein or bearer.

Hein's endorsement is on the note. By this endorsement he became the endorser or surety of Lovering. Hein was offered as witness to prove facts which would have been a good defence to this action, but his testimony was objected to, on the ground of interest in the event of the suit. And the district judge sustained the objection, and refused to admit his testimony.

It is clear that that the judge did not err in his ruling on this point. Heih was directly interested in having the debt for which he was surety, extinguished. A surety is not a competent witness for his principal.

The judgment of the district court is therefore affirmed, with costs.


text:
    Succession of Isaac Pipkin—T. J. Pipkin, Executor—On an opposition, M. E. Mure et al.
    An executor who hired out the slaves of, the succession, and, as an overseer, superintended the labor of others, is entitled to compensation for the services thus rendered, over and above the two and one-half per cent commission which the law allows.
    An error in an inventory of the eflects of a succession, may he corrected.
    Where the testator directs, by his will, that slaves be set free, it is the duty of the executor to take care of, treat and support them, until set free, in the same manner that they were treated by the testator.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      W. H. Paxton, for the executor.

      Stockton and Steele, for opponents.
   By the court:

Dunbar, J.

This is a controversy between the heirs and legatees of Isaac Pipkin, deceased, and his executor, T. J. Pipkin, as to the settlement of his accounts in his capacity of executor.

The testator, Isaac Pipkin, who was the. owner of a number of slaves, valued, after his death, in the inventory of his estate, at near thirty thousand dollars, died in New Orleans, in the year 1850, having made two wills or testaments, in which he gives and bequeathes to his wife and daughter, the opponents and appellants in this case, all the estate, with the exception of a female slave named Julia Ann, and her child, Florence, of whom he says: “It is my will and desire, that my slave Julia Ann Crenshaw, and her child, Florence, have their freedom, and I hereby set them free from and after my death. I beg my wife and daughter, Mary Eleanor, to offer no impediment to their being set free; and I beseech my wife and daughter aforesaid, to let them have their liberty, free from bondage, and grant this, my last will and request.” He directs, that his slaves shall be hired out for two years after bis death, nt which time he gives and bequeathes them as before mentioned, and appoints T. J. Pipkin one of his executors, who, after having had the will ■ afqresaid duly probated, qualified as such, and acted in that capacity until he rendered up and delivered to the legatees all the property belonging to the estate of,the testator, sometime during the present year.

It appeal's that the deceased, for a number of years previous to his death, lived in New Orleans, and his wife and daughter, in Virginia; that his business and occupation, whilst here, was the hiring of his slaves as laborers, on the levee, in loading and discharging vessels and steamboats; and that Thos. J. Pip-kin was employed by him for several years in the management of these slaves, in conjunction with two and, at times, three other persons, to superintend the work of some seventeen slaves or hands on the levee. It seems, that the testator, finding this a profitable business, wished'it to be continued by his executor for two years after his death. In obedience to thisa'equest of the testator, his executor, who had thus been employed in the lifetime of the testator, who had resided in the same house and yard with him and-his slaves, and was, moreover, his nephew, continued to live with, manage, hire out, and take care of, all the slaves, as he had done during the lifetime of the testator, under his own eye and direction. -

The accounts of the executor, growing out of the superintendence, care and management of these slaves, are the subject of the present controversy. Three different accounts, which the parties have agreed to consider as one, have been filed by the executor in the district court, to which the legatees made various oppositions, no less than eight of which have been partially sustained by the district judge. The legatees, not satisfied with the amendments ordered by that court, in the accounts of the executor, have taken an appeal; and the appellee, likewise dissatisfied with the judgment, prays that it may be amended in various particulars, as set forth in his answer to the appeal.

The principal item of difference between the parties is the claim, made by the executor, of two thousand six hundred and thirty-five dollars, for his services as an overseer, and the services of an assistant overseer, for a period of twenty-three months, or an average of nearly $115 per month for the wages of both. The court a quo allowed only $2300, or $100 per month, and the opponents contend that nothing should have been allowed for the executor’s services as overseer, beyond his commission of two and one-half per cent on the amount of the inventory.

We think that the executor should have been allowed the whole amount charged for his own and assistant overseer’s services, as being very moderate and reasonable, which is satisfactorily shown by the evidence. Amongst the slaves of this succession were about twenty men, to work by the day, and their wages to be collected daily. It is shown that more than one person was required to superintend and procure work for them. There were also some ten women amongst these slaves, to be hired out; books to be kept; provisions, medicines, and clothing to be purchased, and attention to the slaves when sick, as there were about thirty-nine slaves, of all ages, belonging to the succession. No stronger evidence of the fidelity, energy, and good management of this executor, can be required, than the fact, which is exhibited in his accounts, that, in the period of two years, he received from the hire of these slaves the almost incredible amount of $16,538 44, of which amount, he transmitted to the heirs and legatees the sum of $9435.

Nov do we consider that there is any well founded legal objection to the claim of the executor for his wages as an overseer, in addition to his commission of two and one-half per cent on the amount of the inventory. It surely could not have been reasonably expected, if the executor had been a baker or butcher, that he would have furnished bread or meat to these slaves for years without charge, nor can it, with any more reason, be expected that he should have devoted his days and nights as an overseer, to the hiring out of these slaves on the levee, living with them, taking care of them, and managing them, so as to make for the heirs and legatees the enormous profits before mentioned. We do not think that the rule established in the case of Baldwin’s Executor v. Carleton, 15 L. R. 399, “that a professional man, who is an executor, and renders legal services to the estate he administers, is not entitled to any separate compensation,” is applicable to the present case, and would be carrying the doctrine further than we are disposed to carry it.

The district judge, we think, erred in another item, in ordering the “ account to be amended by charging the executor with the sum of $401 70, the difference between the alleged balance of cash on hand and that shown in the inventory.”-

The testator died on the 20th January, 1850; his wills were probated on the 16th February, 1850, and the inventory was taken on the 26th of Marchtfollowing, in which it was stated, that there was $1000 cash on hand. In the accounts rendered by the executor, he credits the estate regularly, day by day, with sums of money received for the estate, from the 21st of January, 1850, to the close of his administration, amounting to $17,132 44. It will be found, that up to the 26th March, 1850, the estate is credited with $1536 90, as so much cash received. The auditor appointed in this cause reports also this fact, and that, up to that date, the executor had paid out $938 61; showing that, in fact, the executor had really in hand at the time of taking the inventory, a balance of only $598 29. The amounts making $938 61, appear, by different vouchers, in the debit side of the account. And this being the true state of facts, as exhibited by the books of the executor, offered in evidence by both parties, it becomes a matter of indifference whether the amount was stated correctly or not at the time of taking the inventory. It is true, the object of the inventory is to ascertain the state of the property at the time of its being taken; but, it cannot be seriously contended, that an error therein cannot be rectified by evidence. It is here shown that there did exist such an error, which, there can be no doubt, arose from the executor having, for more than two months before the taking of the inventory, received and paid out monies for the estate, and his accounts not being then made up, the cash on hand vvas stated at an approximation. The true cash on hand is now ascertained by evidence, and it has all been credited. Therefore, the judgment of the district court, charging the executor with $401 70, the difference between the alleged balance of cash on hand and that shown by the inventory, must be corrected. 4 R. R. 278, Babin v. Noland and 5 Ann. 550, Derouin v. Segura.

We consider that there is error in charging the executor with $150, the difference between the inventoried price of the horses of the succession, and the amount for which they were sold by the executor. He was directed by the heirs and legatees to sell them at private sale, with as little expense as possible ; which he did, and has accounted for the proceeds thereof.

There is also another amendment to the account of the executor, ordered by the district judge, which should be corrected. He charges the executor with $305, for the board, lodging and clothing of the emancipated slave, Julia Ann, and her daughter, Florence.

It is shown that the executor permitted them to remain in the house of the deceased, with the other slaves, where the executor himself resided, and that he supported and took care of them, in the same manner that they had been treated by the testator in his lifetime. This could have added but little to the expense of the whole establishment, (consisting of about thirty-nine slaves,) and we think that, until their emancipation could be effected, it was the duty of the executor to retain them in his possession and treat or manage them in the same manner in which they had been treated by their deceased master. We are of the opinion, that this was required of the executor, both by duty and the ordinary dictates of humanity; and it is by no means to the credit of the heirs and legatees, that they should complain of it.

The account of the executor, amendedin conformity to this opinion, as hereinbefore stated, will exhibit a final balance of $3968 53 in his favor. The district judge has allowed to the executor, by his judgment, $1191 70 less than this amount, but has failed to. give him a judgment against the heirs and legatees for the amount due to him from them.

It is therefore ordered, that the judgement of the district court be reversed; that the account of the executor, amended in conformity to this opinion, be confirmed add homologated, and that he recover of the aforesaiad heirs and legateeSi (-Jjq gum 0f §3968 53, with interest at five per cent per annum from the 8th of May, 1852, until paid, and the costs in both courts to be paid by the heirs and legatees.


text:
    H. E. Burton v. James Brewer, Sheriff, et als.
    The transferee is only possessed, as regards third persons, after notice has been given to the debtor of the transfer having taken place. C. C. art. 2613. And an execution may be properly levied by creditors, previous to such notice.
    In an affidavit for a new trial, on the ground of newly discovered evidem e, the plaintiff swore that he expected to prove notice of the transfer of certain property. The affidavit was held to be defective, because it did not state the time at which the notice of the transfer was given.
    APPEAL from the Third District Court of the Parish of Jefferson, Clarke, 3.

      V. F. and J. B. Cotton and J, J. Michel, for plaintiff.

      H. II. Slrawbridge, for defendants.
   By the court:

Dunbar, J.

The executors of the succession of Samuel Shakespeare, having an execution in their name against W. P. Kelsy, had it levied by James Brewer, Sheriff of the Parish of Jefferson, upon a claim which Kelsy had against the city of Lafayette, for building a market-house.

The plaintiff in this suit, claiming to be the owner of the seized property, under a sale, or transfer, by private act from Kelsy, sued out an injunction to prevent the sale. The district judge dissolved the injunction, and gave judgment against the plaintiff, with twenty per cent damages on the amount of the judgment enjoined, and he has appealed.

The only question on the trial, was, whether the city of Lafayette, the debtor of Kelsy, had had notice of the transfer to the plaintiff, Burton, previous to the seizure. The transferee is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place. C. C. art. 2613. And an execution may be properly levied by creditors, previous ■ to such notice. 6 Martin, N. S. 329. 2 L. R. 424. 1 R. R. 26 11 R. R 298. The district judge, we infer, considered that such notice was not proved ; and we think he did not err.

The plaintiff moved for a new trial, upon various grounds; the only one, however, which we consider it necessary to take any notice of, was' that of newly discovered evidence, by which, the plaintiff swears, he expects to prove notice of the transfer, but leaves out the indispensable allegation of the time at which this notice was given that he expects to prove by this newly found testimony. If it was a notice after the seizure, it would have been of no service ; if before, he should have so stated it in his affidavit.

The district judge overruled the motion, very properly, for a new trial; but we do not concur with him in the reasons he gave for so doing.

The defendant has asked for an amendment of the judgment, so as to include B. Dougart, the surety, on the injunction bond. We think he is entitled to this, but not to the damages he claims for a frivolous appeal.

It is therefore ordered, that the judgment of the district court be so amended rs to give the defendant a judgment, in solido, for his twenty per cent damages and costs against the plaintiff, in injunction, and his surety, B. Dougart, and that, in all other respect it be affirmed, with costs.

Plaintiff’s counsel applied for a re-hearing, and cited 9 R. R. 207. C.C. 3522. 9 R. R. 270. 11 M. R. 702. C. C. 2613. 1 N. S. 425, 6 N. S. 286. 17 L. R. 471. R. R. 259. 12 R. R. 409. 4 Ann. 207. Stray, on Agency, 140.

Re-hearing refused.


author: Slidem., J.

text:
    Richard Suydam v. Henry L. Kinney.
    Plaintiff has the right to offer evidence to rebut the plea of prescription, aud when the plea is filed in the Supreme Court, the cause will be remanded for a new trial.
    Plaintiff, who sues ns liquidator on a contract made with a firm, must prove his authority to sue as liquidator, although it be not specially denied.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, L

      John Livingston, for plaintiff.

      Grymes and Reid, for defendant.
   By the court:

Slidem., J.

A plea of prescription having been filed in this court, and the plaintiff having the right to offer evidence to rebut it, the cause will be remanded for a new trial. C. P. 902.

It is proper to add, that the evidence before ns does not establish the plaintiff’s right to maintain this action. The note upon which the suit is brought, is payable to the order of Suydam, Jackson 8^ Co., and Suydam claims as liquidator of that firm. This capacity is one arising out of contract; and, under the rule laid down in McDonald v. Millaudon, a special denial was not necessary, to put the plaintiff upon proof of his authority to sue as liquidator. 5 L. R. 405.

It is therefore decreed that the judgment be reversed, and that this cause be remanded for a new trial, the-plaintiff to pay the costs of the appeal.


author: Eustis,C. J.

text:
    Hill, McLean & Co. v. John A. Miller.
    Where the proceedings in a case’had been conducted irregularly, for more than a month, at such times as suited the convenience of the parties and the leisure of the court, the circumstance that the court received the testimony of witnesses, after the plaintiffs’ counsel had concluded his argument, is not, where the plaintiff sustains no injury, a good ground of exception. ^
    A surety, in exercising his right to point out for discussion, the property of the principal debtor, is not restricted to property within the jurisdiction of the court that rendered the judgment. He may point out any property having the requisite conditions, within the limit of the State.
    A creditor ought not to be subjected to a troublesome, difficult, and protracted discussion of the property of the principal. The law supposes, that the property designated is in a condition to be made available to the creditor, for the payment of his debt.
    A surety who requires the creditor to discuss property, must describe it so particularly as to enable the creditor fully to understand its situation, extent, title, and condition.
    The plea of discussion can be made but once.

      APPEAL from the Third District Court of New Orleans, Kennedy J.

      T. J. Semmes, for plaintiffs.

      Ogden and Duncan, for defendant.
   By tha court :

Eustis,C. J.

This is an appeal from adecision of the judge of the Third District Court, taken by the plaintiffs. The court sustained a plea of discussion, made by the defendant, who was sued on a written obligation, as the surety of Joseph E. Miller and his wife.

The only question presented by this plea, is, whether the defendant has complied with the requisites of the code in relation to this plea.

There is a bill of exceptions taken by the plaintiffs, to the reception of certain evidence, after the evidence at the trial was closed. The district judge received the testimony of witnesses, after the argument had been concluded by the plaintiffs’ counsel, and the case by him submitted, and the defendant’s counsel had commenced his argument. The proceedings, it appears, were conducted from day to day, at intervals, from the 12th of March to the 16th of April, undoubtedly at such times as suited the convenience of the parties and the leisure of the court. We, therefore, think the subject of the complaint, in the bill of exceptions, was a matter resting in the discretion of the court. We know of no instance of a reversal of a judgment for a cause of this kind. It is not pretended that an opportunity was not afforded to the plaintiffs to countervail the evidence thus offered, or that any injury has been worked to the true merits of the case, by the action of the court below.

The article 3016 of the code, provides that the surety who exacts the discussion, is bound to point out to the creditor the property of the principal debtor, and furnish a sufficient sum to have the discussion carried into effect. The property pointed out must not be out of the State, in litigation, nor even if mortgaged for the payment of the debt, that which is not in the possession of the debtor.

The defendant, in his plea of discussion, points out to the creditors a cotton plantation, and slaves, in the parish of Concordia, the place in which the obligation sued on is dated, and it being the domicil of the debtors, the place in which the debt is consequently payable. The property is alleged to be in in the debt- or’s possession, free from encumbrance, and not in litigation. The plantation is described as situate in the parish of Concordia, on the south bank of Black river, being a tract of about one thousand acres of good cotton land, seven hundred of which are in cultivation, with a dwelling house, and all necessary buildings and appurtenances, with twenty-five efficient working hands, and some thirty-five or forty negroes, on said plantation.

The defendant also offered to advance a sufficient sum to defray the expenses of the discussion, and the sum of $250, which was tendered accordingly.

The defendants contend that the plea of discussion thus made, ought to have been overruled, because the designation of the property is not such as is required by law.

The cases which have arisen, in which this subject has been noticed, do not afford us any rule for our guidance, nor are we aware of what has been the practice in relation to it.

As has been observed by counsel, there are no precedents or rules in the French works relating to this subject. The condition of the law of France explains this.

The afticle of the Napoleon Code 2023, which corresponds with our article 3016, provides, that the surety has no right to exact from the creditor the discussion of the principal debtor’s property, situated out of the jurisdiction of the court.

The former jurisprudence of France, recognized the rule as a principle, deducible from the nature of the contract.

When this article of the Napoleon Code was under consideration in the council of state, Cambecéres, consul, asked the reason for it, and why a surety should not be permitted to offer, for the payment of the debt, property of the debtor within the jurisdiction of other courts.

BigotPréamenne answered, that it had always been held, that the creditor was not bound to discuss property situated at so great a distance ; that the discussion would be attended with too much embarrassment and expense.

Where the discussion is confined to property within the jurisdiction of the court, the surety being always required to advance the money necessary for the expenses of the proceedings, few cases necessarily arise in which the condition of the property cannot be ascertained immediately, and without trouble; and the rights of creditors are, by these means, not liable to vexatious delays.

Our code requires that the surety should not point out property situated out of the State ; and it is inferred, that there is no restriction on his right to designate any property having the requisite conditions, within the State, throughout its whole extent, and without reference to the jurisdiction of the court in which the proceedings are had.

Conceding this right, we must regulate its exercise according to the principles of the contract, and not permit its very object and purpose to be defeated.

It is an elementary principle of the contract of suretyship, that the creditor ought not to be subjected to a troublesome, difficult, and protracted discussion. Pothier, on Obligations, 409, 407.

The law supposes that the property designated is in a condition to be made available to the creditor for the payment of his debt: C. C. 3014; and the discussion is a mere question of order, or the mode in which he is to be paid. Beneficium ordinis sive excussionis. Institutes of the Civil Law of Spain, book 2, tit. 18.

If we carry into effect this contract according to its principles, and any thing short of this would be to render it illusory, it seems plain, that the property which the defendant required should be subjected to the plaintiffs’ debt, has not been properly described.

Of the slaves, the description is totally deficient; and, admitting the plantation to have been well known, and the possession of the defendant, public and notorious, we cannot hold the description in the plea, to have been sufficient to maintain the right of discussion, claimed by the defendant.

There is no designation of the metes and bounds of the plantation, nor any note of the title, nor of the incumbrances on it.

We are not called upon to determine what would be, in every case, a compliance with the requisites of the code, on this subject; but we state some of the obvious difficulties in rendering property available to a creditor, when situated in a remote parish.

It is well known that plantations, except in old éettled parts of the State, are made up of small tracts; and all lands held under the United States, are described by the mathematical divisions established by the land laws. These titles are not recorded in the ordinary recording offices of the State, but in the land offices.

We have not only our own courts, but courts of the United States, in which land suits are instituted. Plow can it be ascertained that a given quantity, a quarter section of land, in a large tract, is, or not, in litigation, unless a description of it be had ? It may be ascertained by those familiar with the facts; but, in a majority of cases, the inquiry would be full of embarrassment.

The more the subject is considered, the more apparent will be the necessity of requiring from the surety, such a description of the property which he requires the creditor to discuss, as will enable him fully to understand its situation, extent, title, and condition, as available to him for the payment of his debt. We think, in these respects, the description of the property given by the defendant, is insufficient, and not in compliance with the requisitions of the code.

The plea of discussion can be made but once.

The plaintiffs are therefore entitled to judgment; but, as the case stands, it cannot be rendered in this court.

The judgment of the district court is therefore reversed, and the case remanded for further proceedings ; the appellee paying the costs of this appeal.