author: Tabtaeebeo, J.

text:
    No. 1239.
    C. A. Barriere & Brother v. Herman Stein.
    Where the evidence shows that more than fifteen months elapsed after the maturity of a promissory note, before, any impediment arose to the institution, of tbo suit, the plea of prescription will prevail.

      APPEAL from the District Court, Parish of Carroll, Farrar, J.

      Goodrich, Pilcher & Montgomery, for plaintiffs and appellees.

      DeFrance, Delony ds Roberts, for defendant and appellant.

      Brief for defendant and appellant.

    The main issue in this case is the plea of prescription. The note sued on was due September 22d, 1859; the defendant was cited March 29, 1866, which makes about six and a half years, and without some evidence to show an interruption of prescription, it seems strange that judgment should have been rendered against the defendant. C. C. 3505.
    It is contended, however, that there was an interruption growing out of the recent disturbances of the country, and this Court is gravely asked to take notice, without evidence, that there was a suspension of civil process. We think this is a king too much. The plea of prescription was filed in the lower court, both by way of exception and answer, and if there are any causes for an interruption, it was the plaintiffs’ duty to have shown them.
    “ Presumptions not established by law, are left to the judgment and discretion of the Judge, who ought to admit none but weighty, precise and consistent presumptions,” etc. C. C. 2267, and authorities cited.
    Were the causes which create the rule contra non valentem universal in their application, as in case of war with a foreign nation, it is barely possible that the court might take notice of it; but a mere civil feud, or rebellion, where the courts were open one time and closed at another, it is asking a court of appellate jurisdiction to descend from its high position, assume the functions of a court of the first instance, and enter into an investigation and calculation of petty details and dates, and that, too, from the uncertain light of public history, proverbially unreliable. But again, even if the court, in general matters, could presume-the cause, creating the rule non constant, that it applies to the parties to this litigation. There were many localities where the courts were not closed, and the court is as much at liberty to presume that the plaintiff could have prosecuted his demand during the six and a half years, as that he was precluded. Neither presumption can be allowed, as they lack the attributes required by Art. 2267, are neither weighty, precise nor consistent, and should have been supported by testimonial proof.
    The question, then, arises, what disposition can be made of this case? To affirm the judgment would be clearly contrary to law; to remand the case would be paying a tribute to negligent practice; and it results that the sole alternative is to reverse the judgment and render judgment for defendant. Pleas of prescription are regarded with favor by all courts, have been denominated by the highest tribunal in the land as statutes of repose, and enacted in the best interests of society. 1 Pet. B. 360; 5 ib. 407.
    A familiar rule of evidence is, that the best evidence in a case must be adduced. Presumption in this ease being secondary, cannot be resorted to.
   Tabtaeebeo, J.

The plaintiffs sue the defendant as a commercial partner of the firm of Stein & Byan, on a promissory note signed by the firm on the 22d March, 1859, for $830 50, and made payable to plaintiffs six months after date.

The main issue in this case is the plea of prescription.

The plaintiffs had judgment in their favor, and the defendant appealed.

We think the plea of prescription ought to prevail. The note became due on the 22d of September, 1859. Fifteen months at least elapsed after the maturity of the note, before there was any impediment in the way of the institution of suit by the plaintiffs, whatever might have arisen afterwards.

It is therefore ordered, adjudged and decreed that the judgment of' the District Court be annulled, avoided and reversed.

It is further ordered that judgment be rendered in favor of the defendant, the plaintiffs and appellees paying costs in both courts.


source: Caselaw Access Project

author: InsnEY, J.

license: Public Domain

text:
    No. 1169.
    Jean M. Lapeyre v. E. E. Robertson et al.
    Where the mail service between two points is suspended or broken up. a notice of protest deposited in the post-office by the notary at one place, addressed to an endorser who resides at another, the service is not good.
    Where the mail service cannot be used as a means of conveying notice, the holder of commercial paper is not excused if he fails to use all other practicable means of bringing home notice to the • party whom he wishes to charge. 19 A. d3.
    APPEAL from the District Court, Parish of Terrebonne, Gates, J.

      R. W. Ogden, for plaintiff and appellant.

      Bush & Goode, for Mrs. Dahks, appellee.
   InsnEY, J.

This case presents a state of facts similar to tho'se upon which this Court decided the case of the Citizens’ Bank v. Pugh, 19 A. 43.

The defendant, Mrs. Danks, is sued as the endorser of a promissory note, drawn by E. E. Robertson.

The note was protested at New Orleans, where it was made payable on the 10th March, 1863, and on that day a notice of protest addressed to the defendant, at Houma post-office, Louisiana, was deposited at tbo post-office, New Orleans, when there was no postal communication between Houma and New Orleans, which had ceased several months previously.

It is in proof, that there were other practicable means ' of bringing home notice to the endorser, which were not used. The judgment of the lower court in favor of the appellee must be affirmed.

It is therefore ordered, adjudged and decreed that the judgment of the' District Court, in favor of the defendant and appellee, be affirmed at the costs of appellant.


author: Labauve, J.

text:
    No. 995.
    Babcock & Kernochan v. J. M. & J. C. Murphy.
    Plaintiffs, commission merchants in New Orleans, bought cotton in Texas, in 1861, and stored it in a warehouse in Jefferson, Texas; during the late war, the agent of the owners made a salé of the cotton to the so-called Confederate authorities, who took actual, forcible possession of it; at the close of the warthe United States authorities took charge of tbo warehouse and all the cotton therein as Confederate property. Plaintiffs now bring suit against the warehouseman for the • cotton: JXeltlr-1That the warehouseman having shown a sufficient legal excuse for not delivering the cotton, the burden of proof falls on plaintiffs, before they can recover, to show that the cotton was lost to them through his fault or neglect.
    APEAL from the Fourth District Court of New Orleans, Théard, J.

      Hyams & Jonas, for plaintiffs and appellants.

      H. C. Miller, for defendants and appellees.
   Labauve, J.

The plaintiffs claim of the defendants $7,792 28, tho' value of sixty-four bales of cotton, stored in the warehouses of the defendants at Jefferson, Texas, in 1861 and 1862, and which they refuse to deliver to the plaintiffs. They allege that said cotton was stored by their collectors and agent in the warehouses of defendants, who gave receipts therefor. That defendants, in violation of plaintiffs’ rights of property and. their contract of storage, have delivered and disposed of, or shipped for their own account, the said cotton to some party unknown, and that now they refuse to deliver the same, pretending that they have delivered it to the agents of the so-called Confederate States Government, which is untrue. The answer admits the storage of the cotton, but avers that G. P. Evans, the agent of the plaintiffs, sold the 64 bales of cotton to the Confederate Government, who actually took actual possession of said cotton from the control of defendants, who are discharged from all responsibility.

The case was tried by a jury who gave a verdict in favor of defendants, and the Court, having overruled a motion for a new trial, gave judgment accordingly. The plaintiffs appealed.

We have carefully examined the testimony, which is very voluminous, and we are satisfied of the followering facts: That Evans, plaintiffs’ agent, was, under compulsion, obliged to sell the said cotton to the Confederate States, whose authority took possession of the same as well as of defendants’ warehouses, to store other cotton impressed and purchased by the Confederate authority. That the whole balance of the cotton in the warehouses, at the close of the war, was taken possession of and appropriated by the United Slates authorities, as being considered and viewed as property of the so-called Confederate States. So far then the defendants have shown a proper and legal excuse for not delivering the cotton, as bailee or depositary.

Now, to recover, plaintiffs must show that the defendants have used the cotton or disposed of it, or that it has been lost to the plaintiffs through the fault or neglect of the defendants; it is upon them that the onus probandi falls. There is nothing in the record showing that the defendants have been guilty of any such charge.

This case involves none but questions of facts, which have been solved in favor of defendants to the satisfaction of the Court below, and w'e are of opinion that plaintiffs have failed to make out a clear case.

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

Petition for a rehearing. — The plaintiff and appellants respectfully ask a rehearing on the following grounds:

The court states: “That the whole balance of the cotton in defendants’ warehouses, at the close of the war, was taken possession of and appropriated by the United States authorities, as being considered and viewed, as property of the so-called Confederate States.”

So far, then, the defendants have shown a proper and legal excuse for not delivering the cotton as bailee or depositary.

“Now to recover, the plaintiffs must show that the defendants have used the cotton or disposed of it, or that it has been lost to the plaintiff through the fault or neglect of defendants; it is upon them that the onus probandi falls.”

We have assumed this burden of proof, and the testimony we have furnished is of the highest character known to the law — the admissions and statements of the defendant himself. We refer to the testimony of Geo. P„ Evans, (pages 37 to 46 Record,) which testimony was not, and could not, be impeached; it was taken contradictorily with the defendant and filed in court six months before the trial of the cause.

Evans proves, that on the 24th day of May, 1865, Murnhy told him that he still had plaintiffs’ cotton in his possession. The Confederate authority, at that time, hail ceased, and “Murphy said, that he would ship plaiutiifs’ cotton to J. W. Burbridge & Oo., at New Orleans, and direct them to hold the proceeds, subject to the decision of the Courts.” Evans immediately served upon defendant the notice, to be found at page 47 Record, (document A.) which was received by Murphy without response or objection. This is confirmed by th- testimony of S E. Mosely, (p. 92 Record). We ask the particular attention of the Court to this notice.

Now, this testimony shows that plaintiffs’ cotton was in defendants’ warehouse when the war ended, and had not be turned over to the Confederate authorities.

Now, the Court says, that the whole balance of the cotton in defendants’ warehouses, at the close, of the war, was taken possession of by the United States authorities. Let us see when this occurred, as proven by defendants’ own witnesses. In the Record, p. 121, the Court will find the order on which Murphy delivered 119 bales to the United States Treasury Agents; it is dated Marshall. Texas, July 15th, 1865. At p. 119, Record, will be found the order under which Murphy delivered 33 bales to W. Mc-Master; this bears date September 7th, 1865; and these two lots were all the cotton delivered by Murphy to the Government authorities. See testimony of Pitcher, Tucker and Stealey. Was plaintiffs’ cotton included therein? We have the positive evidence of the defendant himself to the contrary.

On the 12th day of July, Evans returned to New Orleans, for the purpose of getting plaintiffs’ cotton from Murphy, and when he demanded the same, Murphy told him that he did not have it, but had delivered it to the agents of the Confederate Government. See testimony of Evans, pp. 36 to 47.

At this time the United States authorities had neither taken, nor claimed a bale of cotton from Murphy’s warehouses. Therefore it is clear that the United States authorities never took a bale of plaintiffs’ cotton.

But the defendant admitted that he had that cotton in possession on the 24th of May, 1865, when the war was over, and Confederate authority had ceased. He was notified to hold the same for his bailors, the plaintiffs.

He says he is determined to ship it to New Orleans, to J. W. Burbridge & Co., for the courts to determine what shall be done with it. Does ne do so? Does he account for it at all? And yet, as bailee, he is bound to show what became of the property of his principal. He had the cotton on the '24th day of May, 1865; he did not have it on the 12th day of July, 1865; and yet during this period, he had free and undisputed control of his warehouses and property, without interference or hinderance from either defunct Confederate, or victorious National authority. It is for him to show what he did with plaintiffs’ cotton.

We show by the testimony of Eorrestier, (page 158 Record,) that during said interval of time, Murphy shipped to J. W. Burbridge & Co., for his own account, 251 bales cotton, and during the season some 1400 bales. This, he claims, was his own cotton. He should show why be did not ship plaintiffs’ cotton. He could not discriminate in his own favor. Where a warehouseman has his own goods in the same warehouse with those of his principal, and on losing a part, claims the part saved as his own, it is encumbent on him to show why his own goods were saved and not those of his principal.

We respectfully submit to the Court that the testimony above referred to will fully justify the Courtin graining arehearing and a reversal of the judgment. This Court can examine the facts, as well as the law, and correct error, of judges or juries. None but a formal application for a new trial was made below, plaintiff's being satisfied that the sympathies of juries at that time were with those who claimed to have suffered with the downfall of the fortunes of the Confederacy, no matter how much they enriched themselves in its dying hours.

Rehearing refused.


author: Ilsley, J.

text:
    No. 1767.
    State of Louisiana v. Peter Krepple, and Frank, alias Tony.
    In & criminal case, where there is no bill of exceptions, nor assignment of errors, and there is no error patent in the record, the judgment of the Distriot Court will be affirmed.
    APPEAL from the First District Court of New Orleans, Howe, J.

      G. H. Luzenburg, District Attorney, for State.

      J. J. IS. Planchará, for defendants and appellants.
   Ilsley, J.

The defendants were both tried, convicted and sentenced to imprisonment at hard labor for the crimes of burglary and larceny. They have appealed.

There is no, bill of exceptions in the record, nor is any assignment of errors filed in this court, and so far as this Court can examine the grounds'of the motion for a new trial, we can perceive no error in the Judge’s refusal to entertain it, nor indeed any other error in the record.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: Howell, J.

text:
    No. 1697.
    State of Louisiana v. Louis Morel and Jacob Reidy.
    In a criminal case, where no bill of exceptions, nor assignment of errors, is found 111 the record, and no error of law appears in the proceedings, the judgment of the District Court will be affirmed.
    APPEAL from the First District Court of New Orleans, liowe, J.

      G. H. Luzenburg, District Attorney, for State.

      Abell and Johnston, for defendants and appellants.
   Howell, J.

The defendant, Louis Morel, has appealed from a judgment sentencing him to one year’s imprisonment at hard labor in the State Penitentiary, upon his plea of guilty to a charge of larceny; but he has made no appearance here.

After examining the record, we find no bill of exceptions, no assignment of errors, and no error of law in the proceedings, which requires the interposition of the appellate tribunal. See case of State v. Behan, just decided.

Judgment affirmed, with costs.


author: Taliaferro, J.

text:
    No. 549.
    Mrs. Josephine P. Moore v. Steamer Evening Star, et als.
    Steamships engaged in carrying passengers from onoport to another are responsible for the loss or damage done to baggage while on board, whioh has been placed in the custody of the officer of the vessel, whose duty it is to receive and take care of baggage.

      APPEAL from the Sixth District Court of New Orleans, Howell, J. 1JL

      Boselius t& Philips, for plaintiff and appellee.

      IS. W. Huntington, for defendants and appellants.
   Taliaferro, J.

The plaintiff brings this action against the defendants to recover from them three hundred and sixty-four dollars and fifty cents, with interest and costs, the value, as she alleges, of the contents of a trunk containing wearing apparel, which was damaged and rendered valueless by reason of the trunk falling over, into salt-water, from a boat in which it was being carried from the wharf at New York on board the steam vessel, by persons employed by the managers of the vessel. The plaintiff had judgment in accordance with the prayer of her petition, and defendants have appealed.

It appears from the evidence of the second porter of the Evening Star that he assisted in receiving the passengers’ baggage on the day. the vessel left New York, and that he received one trunk belonging to Mrs. Moore.

It is further in proof that the plaintiff’s trunk fell into the water from the boat as it went from the wharf to the steamship; that it remained in the water about five minutes; that when put on board the steamship it was stowed away in the hold, and when the vessel arrived, in New Orleans the trunk was taken out, and soon after - opened; that the trunk remained in the hold of the vessel during the entire voyage; that when the trunk was opened, upon its arrival at New Orleans, the contents were found to be water soaked, .mouldy and so damaged that they were entirely worthless. The articles of clothing found in this damaged condition, were estimated by two of the witnesses called upon to examine them, to have been worth, before receiving the damage, -$364 50. Other witnesses corroborate the statements made by the two who were called upon to inspect the contents of the trunk. We think the case fully made oirf.

The trunk was received by a porter of the boat, whose business it was to take charge of the baggage of the passengers, The damage occurred while the trunk was under his charge, and the amount of loss sustained is clearly established. 1 Martin 196; 18 An. 664; Oivil Code Art. 2723;

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

Howell, J., recused.


author: Ilsley, J. TaTjIAEEbro, J.

text:
    No. 6876.
    Cyrot Gentes v. Manuel Blasco.
    The hypothecary action to enfone thi rights of mortgage on property, is not prescribed by lapse of ten years; it may be exorcised at any time while the mortgage is in existence.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      A. T. Sleek, for plaintiff and appellant.

      O. LeGardeur, for defen' dants.
   Ilsley, J.

In the year 1841, the widow and heirs of Manuel Prados, Sr., (of whom Manuel Prados, Jr., was one) sold a lot of ground, with the buildings thereon, to Manuel Blasco, by a notarial act, which was duly recorded, and in which the property is said to be free of mortgages. In 1839, Thomas Banks had obtained a judgment against Manuel Prados, Jr., which was duly recorded in the same year, and reinscribed in 1849 and 1859.

This judgment was purchased in 1843 by Oyrot Gentes, the plaintiff in this suit.

There is nothing in the record to show that this judgment was ever revived as required by the provisions of the act of the Legislature Of 1853.

The present suit "was brought in March, 1S60, and it is admitted thatin the interval between the d.ifce. of the judgment and the date of this suit, Manuel Blasco was and remained in the full, public, peaceable and undisturbed possession of the property.

The question presented is, can Manuel Blasco, who has sot up the prescription of ten years against the plaintiff’s hypothecary action, be compelled to pay the said judgment, or in default thereof, has the judgment creditor the legal right to have the defendant’s lot of ground acquired by him as aforesaid, seized, and. sold to satisfy his claim?

The doctrine taught in Lanusse v. Minturn, 11 La. 256, was to the effect that 3, plaintiff, whose title is barred by prescription, acquirendi causa, cannbt a fortiori enforce a mortgage or real right to the property, when prescription liberandi causa is opposed to him.

This decision was followed in 3 A. 334, by that in Bibb v. The Union Bank of Louisiana, wherein a different doctrine prevailed, viz: that the prescription against mortgages can only be acquired by the time fixed by law for the prescription of the hypothecary action, but, that prescriptive time is not in that case determined.

And to this last decision succeeded the case of Adlé v. Prudhomme and Wife, 16 A. 343, in which the two preceding cases are reviewed, and this Court therein unhesitatingly adopts, as the correct principle, that enunciated in the case of Lanusse v. Minium.

The tranquility of tho^e who possess, under the legal conditions immovable property, renders it necessary that tliis vexed question should be definitely set at rest; and hence, we have examined it critically in the abstract, with the view of testing the correctness of the last ruling in the reviewing decision of Adlé v. Prudhomme, and which we sanction as applicable to the present case.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, at the costs of the appellant.

Upon the principle of stare decisis, we concur in this decree.

R. K. Howeed.

Zenok Labauve.

Ok Reheakikg.

TaTjIAEEbro, J.

Upon a further consideration of the question of prescription raised in this case, we are not inclined to think, :.s fully applicable to it, the ruling in the cases of Lanusse v. Minturn, 11 L. 256, and Adele v. Prudhomme, 16 A. 313, upon which we predicated our first opinion. They sanciion the doctrine, that the hypothecary action is prescribed by the lapse of time which bars the petitory action. We are not sati lied that this view can be. reconciled with those provisions of the Code which treat of judicial mortgages, and with the statute of 1853, authorizing the revival of judgments and the continuing them in force indefinitely.

The prescription acquirendi causa, as laid down in Lanusse v. Minturn, avails a possessor as owner under a title translative of property, and whose possession for ten years has been public and uninterrupted, to prescribe against adverse titles and claims involving the question of own’ ership. But how does he escape the effect oí mortgages against the property which have been revived and continued in force by reinscription? Take the case of a recorded judgment bearing by a law a judicial mortgage.

If the judgment is revived, according to the act of 1853, and rein-scribed, the judgment, with the judicial mortgage it bears, exists for another period of ten years, and may be so continued. The action to enforce the mortgage must continue pari, passn, with the mortgage itself. For, to what purpose to the creditor would the judicial mortgage be on property in the hands of third persons, if his hypothecary action had ceased at the end of ten years.

Neither Art. 3508 of the Civil Code nor Art. 3195, is in the way of the co-existence of the judicial mortgage and the hypothecary action to enforce it.

Art. 3508 is restricted to personal actions. The term “ real rights,” used in Art. 3495, cannot properly be construed to embrace the mortgage right. Such a construction would bring it in conflict with the Art. 3413 of the Code, which attaches the judicial mortgage to recorded judgments, and with the act of 1853, which allows judgments to be revived and continued in force for an indefinite period of time.

In the case we are referred to by the defendant’s counsel, Kemp v. the Heirs of Cornelius, 14 A. p. 301, the Court expressly say it was a personal action.

It was where a party, having a judgment against an estate, sued the heirs making a partition, praying that a sufficient amount of property be set aside to pay his debt. It was not an action to enforce a mortgage.

We consider the hypothecary action as accorded and defined by Arts. 61, 62 and 63 of the Code of Practice to be an original action. It is declared to be a real action, and that it follows the property in whatever hand it may be found. What is said in Kemp v. the Heirs of Cornelius, 14 A. 301, in regard to the ten year prescription being applicable, whenever it becomes necessary to institute a separate and distinct action from the one in which the judgment was rendered, seems not to apply to the hypothecary action. In that ease, we have already seen the action was personal. We do not find in our Code any period expressly fixed for the prescription of the hypothecary action. And the reason seems to be that its duration is contingent upon the existence of the right from which it springs.

The judicial mortgage may, by pursuing the provisions of law, be protracted beyond the period of ten or of twenty years, and so long as a judgment revived successively within the stated period of ten years under the act of 1853, and continuously recorded within each succeeding period of ten years, so long must continue the hypothecary action to enforce it.

The principles announced in the cases of Terrio v. Guidry, 5 A. 590, and Bibb v. The Union Bank, 3 A. 334, favor the views here expressed.

In the case now under consideration, it is not alleged in the defence that the judgment, in virtue of which the plaintiff claims the judicial mortgage, is prescribed, and we are left to assume that it is not. The plaintiff shows successive reinscriptions of the judgment to preserve the judicial mortgage growing out of it. We do not think the prescription of ten years can avail the defendant to defeat the hypothecary action of the plaintiff.

The case of Van Wickle v. Garnett and Husband, 14 A. 106, is closely in point to the one before us. It is there laid down that the prescription of ten years plead in bar of the hypothecary action was interrupted by' the reinscription of the judgments.

The plaintiff claims that his judicial mortgage bears upon one-fifth of the property described, and prays to enforce it against one-fifth. He alleges that Manuel Prados, Sr., left five heirs, of whom Manuel Prados, Jr., was one, and against whom the judgment he proceeds on was rendered. , It is taken down as an admission, that the property in question was sold by the five heirs, but this can hardly amount to an admission that they were the sole owners.

The defendant denies every allegation of the petition, except what he specially admits.

Manuel Prados, Sr., left a widow, and she joined in the notarial act of sale with the heirs, “ by reason of her rights in the community, which existed between her and her said husband, and as the attorney in fact of Rosalia, one of the heirs.”

These facts satisfy us, that one-half of the property belonged to the widow, and that the interest or share of Manuel Prados, Jr., was one-fifth of one-half instead of one-fifth of the whole.

. It is therefore ordered, adjudged and decreed that the former judgment rendered in this case be annulled, avoided and reversed. It is further ordered that the property subject to the plaintiff’s judicial mortgage be seized and, after the legal advertisements shall have been made, sold according to law; that is to say, the undivided one-tenth part, share and interest in the house and lot on Coridé street, No. (56) in the islet bounded by Condé, Dumane, Old Levee and St. Philip streets, which lot has a front of sixty feet on Condé street, bounded by property once owned by Simon Cancella, and on the other side by property owned by LeRoy. And it is further ordered, that the proceeds of said one-tenth interest, representing the share and interest in said property originally owned by Manuel Prados, Jr., against whom the judgment of the plaintiff was. obtained, there be payed to the plaintiff the amount of said judgment as follows: The sum of three hundred and seventy-five dollars, with interest, at the rate of five per cent, per annum, from the 3d of August, 1839, until paid; and also, the further sum of three hundred and seventy- five dollars, with like rate of interest from the 4th of November, 1839, until paid; and the costs (hat accrued on that judgment, to-wit: fifty dollars clerk’s costs, seventy-five dollars sheriff’s costs; other costs amounting to twenty-five, dollars. It is likewise ordered, that any residue there may be of the proceeds of said property, after paying the amount of said judgment, interest and costs as herein set forth, shall be paid over to Carmena de Blasco, one of the defendants and curatrix of her husband, Manuel Blasco, an interdict. It is lastly ordered that said defendant, curatrix, pay the costs of this suit in both courts.

Mr, Justice InsnEir, adhering to the first opinion rendered, düsenfs.


author: Iesley, J. Ieseey, J.

text:
    No. 506.
    R. Murphy v. T. Gutierez.
    Where the seller has knowledge of the vice in the thing sold, and fails to declare it to the purchaser, the action of redhibition is not prescribed by the lapse oí twelve months from the date of the sale. In such a case the maxim, contra non valentón ag'renon currit praesiriptio, is properly invoked.
    APPEAL from the Sixth District Court of New Orleans, Leaumont, J.

      O. Bufour, for plaintiff and appellee.

      G. L. Bright, curator ad hoc, for defendant.
   Iesley, J.

This is a redhibitory action to rescind the sale of a slave! and to recover the price, with damages.

It is alleged and shown that the sale, with full legal warranty against’ all the maladies and defects prescribed by law, took place on' the 20th February, 1860.

It is also proved that, immediately after the sale of' the slave, the veh-' dor broke up his domicil in this State and departed for Spain, his native country, whence he has never since returned.

The sale was a fraudulent one.

The action was originally instituted on 23d June, 1863, but as the defendant, one Avsndano, against whom proceedings were commenced, as soon as it was ascertained that he was the agent of the defendant,excepted, on the ground that he was not authorized to appear in court, an attachment against the defendant’s property then, but recently dis-^ covered, was sued out.

The boy was diseased at the time of the sale, to the knowledge of the defendant, who fraudulently concealed the fact from his vendee, and the slave died of the same disease in the year 1863.

The prescription of one year is relied on to defeat the plaintiff’s claim. See Art. 2512, L. O.

This prescription is not applicable to the present case, as it falls within the exception in $ 1 of that article, which says:

“ This limitation does not apply where the seller had knowledge of tlio1 vice, and neglected to declare it to the purchaser.” ' -

In such a case, “ the action for redhibition may be commenced at anytime, provided a year has not elapsed since the discovery of the vice.” Art. 2521.

But more than a year had elapsed between the discovery of the vice and the service of the petition. ■ '

If the defendant had continued to reside in the State during the whole year after the discovery of the vice, the plaintiff’s action would-have been barred; but he broke up his establishment and quit the State permanently, before the expiration of the delay, leaving in.it neither domicil nor known agent or property, so that no process could reach him within the year; nor, indeed, until the plaintiff ascertained that he had left an" agent and property in the State, when proceedings against both were immediately oommeneed and process served. Until the plaintiff’s action was instituted, it was impossible for him to act.

He invokes the equitable rule: “contra non valentón agere non currit prcescriplio,” and it must prevail. See the eases of Morgan v. Robinson, 12 Martin, 76, O. S.; Landry v. L’Eglise, 3 La. 221; Guilliet v. Erwin, 7 La. 581; Smith v. Taylor, 10 Rob. 133; Martin v. Jennings, 10 A. 553; Boyle v. Mann, 4 A. 170; Reynolds v. Batson, Same v. Brenford, 9 A. 729.

It is therefore ordered, adjudged and decreed that the judgment oí the District Oourb be affirmed, with costs in this court, to be paid by the defendant and appellant.

On Rehearing.

Ieseey, J.

This case is before us upon á'rehearing, ana upon a careful re-examination of the case, no good' reason is suggested why our first judgment should be disturbed.

The maxim, contra non valentem, was properly applied in our first opinion.

The plaintiff, it is contended, knew that the defendant had property, the title to which was duly recorded', and might have proceeded sooner with his redhibitory action, but this is not shown, and the mere registry ,in a conveyance office does not raise a presumption of knowledge on the part of third parties.

The object of laws for recording deeds,-is to protect the purchaser, but not to bind third parties by a presumed knowledge of the transaction. Martinez v. Layton & Co., 1 N. S. 378.

This being an action to rescind a sale on account of redhibitory vices in a slave, it is not affected by the decisions in this court, in relation to the recovery of the unpaid price of slaves since the abolition of slavery. See James McAlister v. Freeman, Barton & Co., Op. book, No. 136, fo. 12.

It is therefore ordered that our first opinion and decree remain undisturbed.


text:
    No. 1465.
    The State of Louisiana v. Henry Durbin.
    The intention of a parly, charged with the commission of a crime, is an essential averment in a bill of indictment,
    A bill of indictment cannot be amended by inserting a word essential to make it valid, suchas feloniously.
    Where the statute has adopted a common law offence, by fixing a penalty to it, without otherwise defining the crime, all the common law requirements must be followed in the indictment. 9 A. 2L1.
    APPEAL from District Court, Parish of East Baton Rouge, Posey, J.

      J. jE. Stafford, District Attorney, for State.

      B. W. Knickerbocker, for defendant and appellant.
   InsnEY, J.

The defendant was tried, convicted and sentenced to fourteen years’ imprisonment at hard labor, for the crime of robbery.

He relies for the reversal of the judgment appealed from on several grounds, specified in his bill of exceptions, none of which are tenable, save one.

After all the evidence and arguments had gone to the jury, the district attorney moved the court to amend his indictment by changing the averment of time, at which the robbery was committed; aBd alter going inte trial, he moved to amend his indictment by inserting the word feloniously before the word rob, which was allowed by the court.

■The intention of a party, at the time he committed the offence, is s necessary ingredient in it, and in such cases, it is as necessary to state the intention in the indictment, as any other of the facts and circumstances which constitute the offence. Rex v. Phillips, 6 East. 454.

This Oourt held, in the State v. McClanahan, 9 A. p. 211, that where, as in the present case, the statute has adopted a common law offence by affixing a penalty to it, without otherwise defining the crime, all the common law requirements should be followed in the indictment. State v. Abram, 4 Port. 397; State v. Slidman, 7 Port. 495.

In an indictment for robbery from the person, the words feloniously, violently and against the will are essential; and it is usual, though it seems to be unnecessary to allege, a putting in fear. 1 Hale, 534; Poster, 128; 2 Hale, 124; 1 Hale, 504; Wharton’s A. Crim. Law, page 101; 20 An. L. R. page .

Such an amendment as that allowed by the Court on the trial of the case, by the insertion of words essential and not merely formal, does not come within the intent and meaning of the act of 1855, page 171.

The indictment, without the amendment, was fatally defective, and it could not, under the statute referred to, be amended so as to render it a legal and valid one.

It is therefore ordered that the sentence be set aside, judgment arrested, and the indictment quashed, without prejudice to the rights of the State.


author: Howei/l, J. Labauve, J.

text:
    No. 1679.
    A. Bernstien v. E. Ricks.
    The erasure of a word on the face of a promissory note, and the substitution of another word therefor, may be explained by evidence; and the notary, who drew the act of mortgage to secure tha payment of the note, is a competent witness for the purpose.
    Where a promissory note is prescribed on its face, and the plea of prescription is filed for the first time in the Supreme Oourt, the case will be remanded to the lower court to enable the holder to introduce evidence, showing an interruption of prescription.
    APPEAL from the District Court, Parish of St. Helena, Ellis, J.

      E. J. Ellis, for plaintiff.

      S. E. Hunter and W. A. Perrin, for defendant.
   Howei/l, J.

This is an action to recover of the maker the amount of a promissory note, with a recognition of a mortgage, executed to secure its payment, in answer to which the defendant, besides the .general issue, denies his signature to the obligation sued on.

After the note was received in evidence without objection, the defendant objected to the admission of the act of mortgage, on the grounds that it was inadmissible under the pleadings, and did not correspond with the one declared on; and to the introduction of the depositions of the notary, before whom the act was passed, on the grounds that parol evidence is inadmissible to contradict or vary a written instrument; that a notary could not be allowed to explain, vary or contradict his own act, and that in the absence of any allegation of error or fraud no evidence could be received to show that the act of mortgage was different from what it purported to be. It appears that the word ‘ maturity ’ in the note had been erased and the word ‘ date ’ interlined, while the act of mortgage described the note as bearing interest from maturity..

We consider that it was competent for the erasure and in torlineation in the note to be explained or accounted for, and that the notary was a competent witness for tlm purpose. This .being explained, as .it was satisfactorily done by him, the note corresponded with the act of mortgage offered, and there was no contradiction or varying; the facts as they existed were shown. • •

After the note and act were prepared, the parties caused the change in the note to be made, and the notary neglected to make the corresponding change in the act of mortgaged '

Judgment affirmed.

On Rehearing.

Labauve, J.

In this ease a rehearing has been granted on the plea of prescription, filed in this court.

The plaintiff claims of the defendant the sum of $2,000, with interest, upon a note of the following tenor:

“$2,000. New Orleans, June 2, 1860,

One year after date, I promise to pay to the order of myself two thousand dollars, value received, with interest, at the rate of eight per .cent, per annum from date, until paid.

(Signed) , Edward Rioks. ”

The petition and citation were served on the 12th April, 1867.

It is clear that the note sued upon is prescribed on its face, and we have seen nothing in the record showing an interruption of prescription, and as this plea was made in this court, we think justice requires the remanding of the case to give an opportunity to the plaintiff to show interruption or suspension of prescription.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and avoided, and that our former decision be set aside. It is further ordered and decreed that this case be remanded, to be proceeded in according to law, and that the plaintiff and appellee pay costs of appeal,


text:
    No. 1339.
    Vincent Fauvia v. The City of New Orleans.
    The oity of New Orleans liable for the damages done'to property by mobs in riotous assemblies. Aot of the Legislature, approved 9th of March, 1855.
    Where a party brings shit against the city for damages done to his property by a’mob of rioters, it is inoumbent on him to render his claim certain by legal evidence.
    A PPEAL from the Third Distriot Court of New Orleans, Fellowes, J. _LJL

      Fellows & Mills, for plaintiff and appellant.

      H. D. Ogden, for defendants and appellees.’
   Ilsley, J.

The plaintiff sues the city of New Orleans to recover the value of his schooner Balears, which he avers was burnt by a mob at the New Basin, in the said city, on the 24th April, 1862.

The action is brought on the statute of 9th March, 1855, Session Aots, page , which enacts:

“ That the different municipal corporations in this State shall be liable for the damages done to property by mobs iu riutous assemblies,in their respective limits. ”

The city of New Orleans filed a general denial, and called in warranty one John Davidson, whom the plaintiff had made a party, as a prominent rioter.

The case was submitted to a jury, and from a judgment on their verdict in favor of the defendants, the plaiutiff appealed.

It was incumbent on the plaintiff to render, his claim against the city certain, which he failed to do. 10 M. 419; 14 La. 455; 2, Rob. 27; 17 A. 294; 15- A. 268.

The act of 9th March, 1855, is a wise and salutary law, as it concerns the whole community to prevent the wanton destruction of private property by mobs; but in the present case it cannot be applied, as there is no evidence to show anything beyond the fact, that cotton had been put on the schooner, and that she was taken on the oj>posite bank of the Basin; it is not proved that she was destroyed by a mob; although, while she was burning a number of persons were present, which is usually the case at fires.

We think, however, the judgment should have been one of nonsuit.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed, and that judgment be and it is hereby rendered iu favor of the defendants and against the plaintiff as in case of nonsuit, the defendants and appellees paying costs.


author: Ilslex, J. Howell, J.

text:
    No. 1332.
    Spencer Field v. R. H. Harrison, et al.—F. H. Ayers, Intervenor.
    The rule that the evidence of one witness is insufficient to establish, a claim of more than five hundred dollars, does not apply where the ownership of property is in dispute valued above five hundred dollars. ‘
    A third party may. by intervention, have the attachment dismissed, and be decreed the owner of the property attached.
    APPEAL from the Eifth District Court of New Orleans, Leaumont, J,

      B. Egan, for plaintiff.

      L. E. Bimmonds, for defendants.
   Ilslex, J.

The plaintiff, having instituted an attachment suit on a draft, to which Walthall & Co., some of the defendants, were parties, he caused to be seized, as their property, thirteen bales of cotton,

E. H. Ayers intervened, and claimed as bis property the cotton so attached.

Judgment was rendered in the court below in favor of the plaintiff and against the defendants, maintaining the attachment and dismissing the demand in intervention, and Walthall & Co. and F. H. Ayers appealed.

It was proved that the cotton seized was brought down the river by the intervenor; (hat the bills of lading for it were in his name; that he paid the freight on it; that he had the entire control of it; that it was consigned to Walthall & Co., to whom, Ayers owed- nothing; that before Walthall & Co. had any knowledge of the, attachment, Ayers had given an order for the cotton to another house, who presented it. The cotton was stored in the Mississippi Press', and it was insured by Walthall & Co, Only one witness, the book-keeper of Walthall & Co., proved these facts; but it is contended, that under article 2257, C. C., it required, besides his testimony, other corroborating circumstances. We do not think so. The fact to be proved was not an agreement relative to personal property, nor a contract to pay money exceeding in value five hundred dollars, but the fact of ownership. The proof of such a fact is governed by the ordinary rules of evidence.

We think the intervenor made out his case, and that he is entitled to a judgment.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that judgment be and it is hereby rendered in favor of ,F. H. Ayers, the intervenor, declaring him the owner of the cotton attached, and that the attachment suit be dismissed, the plaintiff to pay costs in both courts.

On Beheabin a.

Howell, J.

A rehearing having been applied for by plaintiff in this case, in order to have the judgment in his favor against the defendants affirmed, which had been inadvertently reversed by our decree in favor of the intervenor, a written agreement is presented and filed herewith, signed by the attorneys of all the parties that the judgment already rendered by us herein be amended to read as follows:

It is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, so far as relates to the intervenor, F. H. Ayers, and be in other respects maintained; and it is further ordered, adjudged and decreed that said intervenor be declared the owner of the cotton attached.


text:
    No. 1334.
    Mrs. Pauline Jeffrion v. Dr. W. C. Wilson.
    Payment of an obligation, the consideration of which is shown to be the price of a slave, cannot be judicially enioroed.
    -4 -OL PPEAL. from the Fourth District Court of New Orleans, Theard, J.

      Cooley & Phillips, for plaintiff and appellee.

      B. Egan, for defendant.
   Taliaferro, J.

The plaintiff sues on two notes, executed by the defendant for the payment of the price of a slave purchased by the defendant from the plaintiff in 1860.

.The defence is, that the Court is without jurisdiction, that the Constitution of this State has abolished slavery, and that this suit is based on notes given for a slave sold by plaintiff to defendant.

The case was tried before a jury, and the verdict was in favor of the plaintiff for the amount sued for. Thereupon judgment was rendered, and the defendant appealed.

It is contended, on the part of the plaintiff, that defendant has not proved nor even alleged that he was evicted; that he has not proved nor alleged that he lost the services of the slave by his emancipation, nor that the slave was still in his possession, or belonged to him at that time.

It is proved that the boy, Jim Jeffrion, for whose ownership and services as a slave the notes sued upon were executed by the defendant, was seen in January, 1866, in the full and unrestrained enjoyment of personal freedom, and identified by a person intimately acquainted with- him. - The abolition of slavery is an event which the Court will take judicial cognizance of.

Under this state of things, it would seem to be for the plaintiff to show that defendant had parted with his ownership of the - slave before emancipation; for, in the absence of anything raising the slightest doubt that he retained that ownership, and lost it only by the act of emancipation, the presumption would seem to be against his having, in any manner, voluntarily parted with it.

But whether the loss of ownership fell upon the defendant or not, is of no importance in the investigation of this case. The plaintiff sues upon a contract for the price of a slave. That contract, according to the ruling of this Court, in the case of Wainwright v. Bridges, (19 A. p. 234,) this Court is without power to enforce.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed.

It is further ordered, that there be judgment in favor of the defendant, the plaintiff and appellee paying costs in both courts.


author: IxjSley, J.

text:
    No. 908.
    Peter Marcy v. William Steele.
    Where a promissory note is prescribed on its face, and the evidence shows that suit might have been brought before prescription obtained, the holder cannot'invoke the maxim contra non valentein afjcrc noncurrit pracscytytio. to defeat the plea. 20 A. p. 131.
    APPEAL from the Fifth District Court of New Orleans, Beaumont, J.

      G. Redmond, for plaintiff and appellant.

      Randolph, Singleton & Bardie, for appellee.
   IxjSley, J.

The endorsee of a note, drawn by William Steele to his own order, and by him endorsed, sues the drawer to recover the amount of it, three thousand six hundred and sixty-four dollars and ten cents, with eight per cent, interest per annum from its date, March 6, 1856, irntil paid, less the amounts paid on account at different periods, viz: on the 6th Maroh, 1856, $1,934 48; on the 17th November, 1857, $300; and on the 8th August, 1860, $849; and interest, as per statements endorsed on the note.

The answer is a general denial, and the prescription of five years in bar is pleaded.

The last payment on the note was made on the 8th August, 1860, and service of petition and citation was only made on the 20th November, 1865, more than five years after the last interruption. There is nothing in the record to show any interruption of prescription since August, I860.' This case comes within the principle enounced in Rabel v. Pourciau, lately decided in this court, in which it was held that the maxim, contra non valeniem, cannot be invoked in a case like the present one.

The appellee, in his brief, asks that the judgment, dismissing the plaintiff’s action, be affirmed.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, at the costs of the appellant.


text:
    No. 1336.
    Puig Brothers v. John H. Carter.
    The burden of proof is on the holder of a bill of exchange to show demand, in order to bind the endorser.1
    Where the holder fails to show due dilicence, in making demand of payment of a bill of exchange, the endorser will be discharged.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      Lacey & Marks, for plaintiffs.

      Torrey <& Beckwith, for defendant.
   Labauve, J.

This suit is brought against the defendant, as endorser of a bill of exchange of the following tenor:

“Exchange for $2,000. New Orleans, September 4,1863.”

“At sight of this first of exchange, (second unpaid) pay to the order of myself two thousand dollars in gold, value received, and charge the same to account of. Your obedient servant,

(Signed) W. W. Bijel.

To John McClain, Brownsville, Texas.

Endorsed: Pay to the order of J. H. Carter.

(Signed) ' W.W. Buel.

Pay to the order of Miguel Puig, Esq., value received of Puig Brothers, New Orleans.

(Signed) “J. H. Carter.”

Petitioners allege that, having acquired said draft, they immediately forwarded it to Brownsville, Texas, to be presented for payment to the drawee, and that after due, diligent search and inquiry, the said drawee could not be found in Brownsville or elsewhere, and that he was absent from Brownsville and its vicinity — his residence being unknown; that there was in Brownsville, at that time, no notary public or other officer authorized to make a formal .protest, and give notice of non-payment; that as soon as possible thereafter, the said draft was returned to New Orleans, and the said defendant, Carter, notified of its non-payment, and return of the same.

The plaintiffs admit a payment of two hundred and fifty dollars in gold on account.

The answer pleads the general issue. That plaintiffs have granted time to the drawer and drawee for the payment of said draft; that defendant is discharged as endorser; that said draft was drawn and negotiated in violation of law, and is null and void.

Judgment was rendered below in favor of plaintiffs, and the defendant appealed.

In relation to the presentment for, and demand of payment, and the impossibility to protest, the following is the only evidence:

Gabriel DaOorral, who testified: “In December, 1863, he was in the employ of Miguel Puig, in Matamoras. This draft was received in Matamoras on the first of October, 1863. He went over to Brownsville to collect-the draft, but Mr. McLean, the drawee, could not be found at that time. All foreigners had the right to cross over to Brownsville and back to Matamoras. He tried to protest the draft in Brownsville, but he could not find a notary, nor any one authorized to protest a note. To the best of his knowledge, there was no such person so authorized. The draft remained there till about the 24th October, 1863, when it was returned to New Orleans.”

We are satisfied that this testimony do«3 not show that due diligence that the law-merchant imposes on holders of bills, in the presenting for, and demand of, payment of bills and notes. All that the witness says might be very true, and yet the drawee might have had a home, a domicil, and a commercial house, none of which is negatived by this vague testimony.

This witness does not pretend that he looked or enquired for the domicil of the drawee; but he simply says that the drawee could not b & found ai that time; this might happen to the most permanent residents, to be absent at times.

We are of opinion that, for want of due diligence in presenting the draft to, and making demand of payment of, the drawee, the defendant has been discharged as endorser. 10 L. 390. 4 R. 18. 7 R. 451. 6 L. 730. 10 A. 107.

It is therefore ordered and decreed, that the judgment appealed from be annulled and avoided. It is further ordered and decreed, that there be judgment rendered in favor of the defendant, and that plaintiffs and appellees pay costs in both courts.

Rehearing refused.


text:
    No. 1163.
    Edward S. Wurzburger v. Pierre Meric.
    Where a party purchased a lot of ground in the city of New Orleans, containing so many feet in width and depth, according to a plan furnished at the time, and the notary who passed the act . of sale made a clerical error in the number of feet in depth, making the lot larger than , that shown by the plan, the purchaser is not entitled to a diminution of the prioe.
    APPEAL from the Sixth District Court of New Orleans, l)iipkmti'er,'S.

      G. E. Schmidt, for plaintiff and appellant.

      O. Dufotir, for defendant!
   Taliaferro, J.

The plaintiff avers that in October, 1865, he bought from the defendant a lot of ground fronting twenty-five feet on Gasquet street, and running back between parallel lines the depth of one hundred and twenty-six feet seven inches, at the price of three thousand dollars, which he paid to the defendant in cash. That after taking possession of the premises under the sale, he discovered that the lot had the depth of only one hundred and five feet seven inches; that as defendant declines to pnt him in possession of the quantity of ground he bought from him, he is entitled to a diminution of the price paid to the extent of six hundred dollars by reason of the deficiency. He, therefore, sues the defendant for that sum, with interest from the date of sale.

The defendant plead, in his answer, first, the general issue; then, specially averred that the lot sold by him to the plaintiff really had a depth of only 106 feet 7 inches; that at the time of the sale the lot had buildings upon it, and was enclosed by fences; that these facts, indicating the extent of the premises, were well known to the plaintiff from personal inspection by him before the sale; that the plaintiff bought by the title then held by the defendant, which showed the depth of the lot to be 106 feet 7 inches; that the statement in the act of sale to the plaintiff that the lot had a depth of 126 feet 7 inches was a clerical error of the notary who drew up the conveyance; that the plaintiff knew when he bought that the real depth was 106 feet 7 inches; that he had purchased according to a plan specially referred to, and that he has no right of notion.

The defendant had judgment in his favor in the court below, and the plaintiff has appealed.

A bill of exceptions appears in the record to the admission by the Judge a quo of the testimony of a witness to show that as an intermediary between the plaintiff and defendant, in the negotiation for and sale of the lot, he showed the lot to the plaintiff who went upon it, and had the opportunity of seeing the fences around it; that afterwards the contract was entered into by the parties, and that the next day he received from ihe defendant a copy of his title to the lot, and that he brought the instrument together with an insurance policy to the plaintiff; that plaintiff, after satisfying himself by having an examination made at the office of the Register of Conveyances, that the property had not been transferred during the war, indicated the notary’s office at which the deed to himself was to be drawn up.

We do not think the Judge erred in overruling the objection. It was ruled by this court, in a case closely in point with the one under consideration, (the case of Plangue v. Guesnon, 15 L. R. 312,) that parol evidenoe inay be admitted ‘ ‘ to show that by accident or negligence the instrument has not been made the actual depository of the intention and meaning of the contracting parties.”

The evidence objected to, in the present case by the plaintiff, is of the same character and introduced for a similar purpose.

Numerous authorities sanction the principle laid down in the case referred to in 15 L. R.

The act of sale from defendant to plaintiff recites that the lot is transferred as “per a plan drawn by J. Pilie, surveyor.” That plan was introduced in evidence, and it was shown by it that the lot has the depth of 106 feet 7 inches.

DeArmas, a surveyor, who, at plaintiff’s instance, made a survey and diagram of the lot, sworn as a witness, said the measurement of the lot as indicated on Pilie’s map corresponded precisely with that of his own. Three several conveyances of the lot by former owners were introduced in evidence by the defendant. In all of these acts, the lot is described as having twenty-five feet front and the depth of 106 feet 7 inches.

The broker, whose testimony we have seen, was objected to; testifies that he conducted the plaintiff to the lot before the contract was entered into; that the plaintiff was in the house, and afterwards out in the yard, and saw the lot which was enclosed all around; that the next day he carried defendant’s title to him, and that the deed was executed the day following.

We think it satisfactorily shown, that the notary who drew up the deed inadvertently and through error, gave the depth of the lot as 126 feet 7 inches instead of 106 feet 7 inches.

Under tlie circumstances of tlie case, and the position in which the plaintiff is clearly placed by the evidence, he should not be allowed to avail himself of the error of the notary to the injury of the defendant, who, throughout the whole transaction, acted in good faith.

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


text:
    No. 1134.
    John D. Helm v. F. Ducayet et al.
    The promise of an endorser to pay the note, if the holder would not protest it, amounts to notice, and maybe proved by parol evidence. ,
    Although the amount of the note is above five hundred dollars, the evidence of one witness is sufficient to prove the promise to pay it. '
    A PPEAL from the Fourth District Court of New Orleans, Théard', J.

      T. W. Collens, for plaintiff.

      O. Dnfour, for A. Mercier, defendant. '
   Ilsley, J.

The note upon which suit was brought in this case against one of the defendants, Dr. Mercier, as endorsee, was not protested at its maturity, nor was any notice of demand and non-payment ever given to him.

The plaintiff, however, relies upon the promise and agreement of the endorsee, Mercier, made previous to and after the maturity of the note, to pay it at all events if the drawer did not, provided it was not pror tested, as it would injure his credit if his name were protested.

The promise and agreement were permitted by the court below to be proved by parol; but such evidence was objected to by the endorsee, who took a bill of exceptions.

The evidence was not offered to prove a verbal agreement contemporar neous with the making of the endorsement, which would be, under- the commercial law, inadmissible. (Byley on Bills, p. 168, at top 76, margina.1 paging. Ed. of Sparswood, and authorities there cited, notes h and Í. Parson on Notes and Bills, vol. 2, page 501.) But to show a subsequent promise and agreement by which the endorser bound himself, if the note was not paid by the drawer,. h.e. would, if. it was not protested, hold himself liable for it al all events, and this was equivalent to a waiver of a demand and notice.

Such an agreement, under the rules peculiar to commerce, 2 N. S. 122, applicable in this case, may be proved by parol. 3 N. S. 268. In Fuller v. McDonald, 8 Greenl. 213, it was held that an agreement by an endorsee to waive a demand and notice may be proved by parol evidence. Bailey on Bills, page 244.

And an endorser's acknowledgment of his previous agreement, and promise to pay, made subsequently to the maturity of the note, may be made by parol, and unless an endorser was ignorant of his discharge from liability, and this is not the case here, his promise to pay so made would bind him. 3 N. S. 319.

The case of Ross v. McNeil, 1 Rob. 368, does not conflict with the doctrine now taught; and in McMahan & Grant v. Turnell, 16 La., there was no absolute agreement, but mere negotiations for an agreement. In the ease at bar, there was an agreement which is clearly proved by parol, and although the amount in dispute exceed? five hundred dollars, the contract being a written one, and the testimony corroborative, sufficed.

The endorser waived or modified his right to insist upon a presentment for payment and notice of its refusal, and it may well be supposed that if these formalities were not complied with, the contract of the endorsee with whom the agreement - was made, was, in that particular, regulated by the agreement; and as was said in Bloffer v. Herman, 7 A. 659, “it would operate a fraud, if the endorser were afterwards permitted to avail himself of the omission.”

It is threfore ordered, adjudged and decreed that the judgment appealed from be affirmed, at the costs of the appellant.


author: Ilslex, J.

text:
    No. 1344.
    Cassel Money and J. M. LaFrance v. Melasie Cosse, Administratrix.
    Where a judgments, homologating a tableau made and filed by the administrator, shows that the assets in his hands are insufficient to pay the privileges and mortgages against the estate, payment of the ordinary claims cannot be enforoed.
    APPEAL from the District Court, Parish of Plaquemines, Oazabat, J.

      J. Foulhouse, for plaintiffs.

      Bambola • & Duoros, for appellees.
   Ilslex, J.

The final account of administration rendered on the 10th January, 1865, by Mrs. Melasip Gossé, widow of Alphonse Peche, in her capacity of administratrix of the succession of the, late Charles Dragon, •her first husband, was homologated, and became the judgment of the court below on the 21st June, 1865, and is now res judicata.

The assets of the succession amounted to the sum of.......$10,700 10

This included a claim of $470, .set up against Pierre B.. Dragon, which, upon his opposition, was excluded from the said assets.............., t....................................... 470 00

Leaying as net assets of the succession..;.. .......'........$10,230 10

The privilege and mortgage debts, as appears from the account, amounts to............................$9,658 39

These privilege and mortgage debts were augmented by judgments rendered, on oppositions, including costs, etc., to..................'................$1,027 70 $10,686 07

Leaving a deficit to pay privilege and mortgage debts........$ 456 97

On the 16th of October, 1865, the administratrix, after paying the funds in her hands according to the judgment of homologation, was discharged from her trust, and her bond cancelled.

More than a year afterwards,; the plaintiffs in the present rule, caused the defendant, as administratrix, to show cause why she should not pay the amount of their claims figuring on her final account, and why an execution should not issue against her personally, and her property be seized and sold to satisfy the judgment in i.their, favor,, meaning thereby the judgment of homologation, which they recognize as having with respect to themselves the force of res judicata.

The claims of the plaintiffs in the rule were placed upon the account of administration, pro memoria, as ordinary debts.

The rule was discharged by the courtbelow; on the ground that by the judgment of homologation rendered unopposed, there was not enough to pay in full the privilege and mortgage debts; ordinary debts described in the account could not be paid.

The plaintiff, in the rule, bases his proceeding upon the judgment of homologation, and by that he is excluded from participation in the fund forming the sole assets of the succession.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, at the costs of the appellant.


text:
    No. 1343.
    Cassel Money v. Pierre Cosse.
    Where there is no evidence in the record showing that the endorser of a promissory note has been notified of the protest,, the judgment will be one of nonsuit.
    APPEAL from the District Court, Parish of Plaquemines, Oazabal, J.

      Collens <& Wooldridge, for plaintiff.

      Snmbola <& Bucros, for defendant.
   Ilsley, J.

The defence set up by defendant in this suit, who is sued as endorser of a promissory note, is the general issue, and specially, that no demand of payment on the maker, nor legal notice of protest was ever given to him, whereby he is discharged.

The maker of the note died before its maturity, leaving a widow and children, majors and minors.

Demand was made for payment of the note on the widow alone, before the opening of her husband’s succession, the appointment of an administrator, or her qualifying as natural tutrix. The note matured on the 13th January, 1863, and it was protested, and notice served on the 12th of that month, one day too soon; but the recorder who made the protest says, that on the next day he again presented the note for payment to the widow. He also says, he notified the defendant of this last demand.

It is unnecessary to express any opinion as to the sufficiency of the demand made on the widow, as it is not proved where the recorder gave verbal notice to the endorser. Due legal notice was necessary to bind him. Bailey on Bills, 263, et seq.

The judgment of the lower court should have been one of nonsuit.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be set aside, and that judgment be and it is hereby rendered in favor of the defendant and against the plaintiff, as in case of nonsuit, at the costs of the appellee.


author: Ilsiíey,,' Ji

text:
    No. 1351.
    Schwartz Kaufman & Co. v. John L. Barringer.
    A party by writing bis name across the face of a draft makes tbe acceptance complete, and parol evidence is not admissible to prove that at the time he wrote his name he refused to write the word “ acoepted '* above his signature.
    Where a party accepts a draft drawn to extinguish two other outstanding drafts he cannot set up the failure of consideration for whioh the first drafts were given as a defence to the payment of his acceptance.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      O. Schmidt and A. & M. Voorhies,. for plaintiffs and appellees,

      Bandolph, Singleton & Browne, for defendants,
   Ilsiíey,,' Ji

.-The defendant is sued as the acceptor of a bill of exchange, drawn by Phillips & Bevans to the order of the plaintiffs.

, The -defendant, admitting his signature to the bill, pleads the general issue, and.avers that Phillips & Bevans, the drawers of the draft, bought of Louis Schwartz, seventy-five bales of cotton for §2,563 01, in payment o'f which they drew two sight drafts on New York, which were not paid, but protested, and the present draft was given in lieu thereof. That the said cotton sold by Louis Schwartz, was not equal to the representation of its quality, was falsely packed and worthless. That the said Louis Schwartz represented to them, and guaranteed that there was no tax on cotton, when, on the contrary, the cotton was liable to the said tax, and the government claimed and collected it.

. That the plaintiffs were part owners, and interested in the said cotton, and knew before they took the draft, that the consideration for it had failed, and that a fraud had been practised upon Phillips & Bevans, for whose accommodation the defendant accepted the draft.

Phillips and Bevans intervened in the suit, adopting the allegations in the answer of Barringer.

On the trial of the case in the lower court, the defendants offered to prove by a witness that' when the defendant, Barringer, accepted the draft.now sued on, he stated in the-presence of Louis- Schwartz, and in that of a, member of the plaintiffs’ firm, that he had received a letter from New York, by which he learned the cotton was damaged, and that he did not know how the cotton would turn out, and that if it turnad out badly, he would not pay his acceptance sued on, which he was then about to accept; and the Court excluded this testimony as also the .testimony of the same witness to prove that when the defendant accepted the draft he refused, although so requested by a member of the plaintiffs’ firm, to write the word “ accepted ” over his signature, on the ground that he had been informed that the cotton was not such as Louis Schwartz had.represented it to be, and that he would not make his acceptance complete and binding on him by writing the word accepted over his signature, because he would not pay. the draft sued on, if the cotton turned out badly, and to this ruling of the Court the defendant objected, and took two.bills of exception.

The reason assigned in the bills for the rejection this testimony was, that it would convert- an absolute into a qualified acceptance, and that this could not be done by parol testimony. This doctrine the defendant does not impugn; but he says, and it is so stated in the bills of exception, that the testimony was offered to show that the plaintiff’s were thus informed of the failure of the consideration of the said draft or acceptance.

There is no evidence in the record to connect, in any manner, the plaintiffs with the original transactions between Louis Schwartz and Phillips & Bevans, or that any other relation existed in the matter than the taking from Louis Schwartz in due time, bona fide, and for a valuable consideration, the two smaller negotiable drafts, which is sufficiently proved by the witness, Moses Schwartz.

We do not consider the evidence thus offered, as presented in the bills, admissible, as its effect would be, in a certain contingency, to discharge the acceptor, whose acceptance was complete by his signature written across the draft, (Parsons on Notes and Bills, vol. 2, p. 501) and the notice thus attempted to be brought home to the plaintiffs would be a mere means to an end, to show that the acceptor was only bound conditionally.

The evidence of several witnesses in New York, was offered to show the original failure of consideration for the two drafts, but this the Court improperly rejected, because it was a link on the plaintiffs’ chain of defence, and he could not be controlled in the order in which he presented his proof.

This proved, he might have proceeded to show, which, however, he did not do, that when the plaintiffs took the first drafts they were parties to the sale of cotton, or had full knowledge of the original failure of consideration for these drafts.

The consideration given by the plaintiffs for the draft now in suit, was not cotton but two drafts, for which they had paid the face of them in money.

They had nothing to do with the acceptor of the last draft furnished. They merely, to accommodate the parties, exchanged the two protested drafts for the acceptance of the defendant.

The court below rendered a judgment in favor of the plaintiffs, and for the reasons now given:

It is ordered, adjudged and decreed that the judgment appealed from be, and the same is hereby, affirmed at the costs of the appellants.

Behearing refused.


text:
    No. 1283.
    William M. Carter v. Mrs. L. E. Taylor and R. J. Taylor, Her Husband.
    The husband cannot be a witness for or against the wife, nor can the wife be a witness for or against the husband.
    The policy of the law is to exclude the testimony of one of the spouses for or against the other in any shape.
    Where the husband and wife are sued in solido, the husband cannot be required to answer under oath interrogatories on facts and articles propounded by plaintiffs.
    APPEAL from the District Court, Parish of East Feliciana, Posey, J.
    Jfc Fea & Hunter, for plaintiff and appellant.

      J. B. Smith and J. H. Muse, for appellee.
   Ilsley, J.

The plaintiff and one of the defendants owned jointly a tract of land in East Feliciana, containing 610 acres, which was encumbered with a legal mortgage for $1,000 in favor of Mrs. Josephine Shirk.

Under a writ of fieri facias upon a judgment recognizing this mortgage, the land was offered for sale for cash, and no sale having been made it was again afterwards offered on twelve months’ credit, and purchased by R. J. Taylor, as agent for his wife, for the price of two hundred and fifty dollars, for which she gave her twelve months’ bond, she being at the time separate in property from her husband.

This suit is brought to recover from B. J. Taylor and his wife in solido, the sum of twenty-three hundred and seventy-five dollars, with interest, the plaintiff, Carter, alleging that B. J. Taylor, acting as the agent of his wife, agreed that in order to give his wife a title to the tract of land, he would pay him, Carter, twenty-five hundred dollars, less one-half the amount bid, in consideration of Carter’s assent to the sale, and making thereby a title to Mrs. Taylor.

On the, trial of the case in the lower court, interrogatories on facts and articles were propounded by the plaintiff to B. J. Taylor, which, notwithstanding the objections of the defendant, Mrs. Taylor, to the answers thereto,.being received as evidence against her, were allowed by the Court to be read.

The main question in the case is presented by the bill of exceptions, taken by Mrs. Taylor to the ruling of the Court, as to the reception of her husband’s answers to the interrogatories.

It is only necessary to state two of the grounds of objection.

1. That husband and wife cannot be permitted to testify for or against each other.

This is the textual rule of the law, 2260, g 3, C. C., and, as was said by this Court, in Tulley v. Alexander, 11 A. 628: The rule, which in civil matters disqualifies the husband for or against the wife, and vice versa, founded on considerations of policy and morality, is without exception.

“ Nor does their voluntary sejiaration touch the rule, which remains inflexible.”

The plaintiff contends that the defendant, B. J. Taylor, being defendant in the suit, and being incompetent to testify as an ordinary witness against his wife, interrogatories on facts and articles were the only means left to prove the agreement.

The policy of the law is to exclude the testimony of one of the spouses for or against the other in any shape, (Cull v. Herwig, 18 A. 319) and that which cannot be done directly, cannot be done indirectly.

Besides, answers to interrogatories on facts and articles are evidence against the party interrogated, but not the other parties to the action, who have a right to cross examine the witness, by whose testimony they are to be bound. Johnson v. Marsh, 2 A. 722; Morrel v. Carr, ib. 807; Sullivan v. Williams, ib. 876.

This was the second ground in the bill of exceptions, in which it was stated that if the husband’s testimony could be used against his wife at all, it was only by making him an ordinary witness, which could not be done. The Court below, with the answer of B. J. Taylor before him, gave judgment for the defendant, and that evidence excluded, there is a stronger reason why they should succeed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, at the costs of the appellant.


author: Taeiaeebeo, J.

text:
    No. 1165.
    Joseph E. Norwood v. John Y. Mills et als.
    Where the evidence shows that the holder of a promissory note might have brought suit previous to the date at which it was prescribed but failed to do so, the plea of prescription will be maintained* See the case of Rabel v. Pourciau, (ante page 331.;
    APPEAL from the District Court, Parish of Pointe Coupée, Cooley, J,

      Collins, Leake & Fisher, for plaintiff.

      P, A. Roy, for defendants,
   Taeiaeebeo, J.

This suit was instituted on the 3d day of October, 1866, by the plaintiff, residing in the parish of East Feliciana, against' John Y. Mills, Joel H. Mills and Mrs. Joyce Mills, of Fointe Coupee," and Alexander Mills, of East Feliciana, in solido, on three promissory notes, secured by special mortgage on a plantation situated in the parish of Pointe Coupee.-

The first of these notes is dated April 24, 1860, for @11,715 35, payable to A. J. Norwood or order, twelve months after date, with eight per cent, interest per annum from maturity.

The second of the same date for @10,814 12, payable in like manner1 to A. J. Norwood or order, twenty-four months after date, and stipulating the like interest from maturity; and the third for @9,912 99, dated April 25, 1860, payable thirty-six months after date, with like interest from maturity.

Plaintiff avers that he is the owner and holder of said notes, under the blank endorsement of the payee.

The defendants plead prescription. The plea was sustained by the lower court as to the first note, which matured on the 24th day of April, 1861, and rendered judgment against' defendants for the amount of the other two notes, with interest, with recognition of the mortgage, and an order that the mortgaged property be seized and sold for the payment of the second and third notes, with the interest accrued, and all costs of suit. From this judgment the plaintiff has appealed.

Suit was filed in this case on the 6th of October, 1866, and citation was served on the 20th of November of the same year, a period of five years and six months after the maturity of the first note of the series. Six months after the time, when, under ordinary circumstances, had nothing occurred to interrupt prescription, defendants might first have set up the plea as a bar to the action.

The plaintiff contends that prescription was suspended by a condition of things which enables him to invoke the great equitable rule contra non valeniem agere non currit praescriptio. He alleges the impossibility for several years to prosecute his rights owing to the existence of war throughout a large portion of the State, and especially to the fact that the localities in which he and his debtors resided, became for three years a part of the arena of strife. He says: “It is a part of the history of the times, and of this country and State particularly, fresh in the memory of all, that, since the capture of New Orleans in April, 1862, to the surrender of the trans-Mississippi army of the so-called Confederate States, in June, 1865, a period of three years, a continued state of warfare existed in this State, especially in that portion of it lying south of the mouth of Red River; on the banks of the Mississippi river, and that this river was, during the period of time just stated, with the exception of some months in the latter part of 1862 and 1863, during the occupation of Port Hudson by the Confederates, in the possession of the United States forces; that it was the policy of the United States authorities to prevent crossing from one side to the other — armed vessels being stationed in the river for that purpose; and the Confederate authorities prohibited all communication, either for trade or other purposes, with the forces of the United States, whether occupying posts on the river or on their fleets. ”

These statements of the plaintiff seem, in substance, to be conceded as true by the following admission, which we find in the record: “In this case it is admitted that Joseph E. Norwood has resided in East Feliciana parish, and John Y. Mills, Joel Mills, and Mrs. Joyce Mills, have resided in this parish of Point Coupée since 1861; that since May, 1862, to June, 1865, owing to the late war, the Mississippi river was continuously in possession of the armed forces of each and both the contending parties; and that crossing said river was very hazardous and dangerous, and impossible.”

In accordance with the view taken by this Court of cases presenting a similar state of facts, the plaintiff’s plea of suspension of prescription cannot avail him. Courts were open from July, 1865, and he might, with ordinary diligence, have brought his suit between that time and 24th of April, 1866, the period at which five years would have elapsed from the maturity of the first note of the series.

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


author: Howedd, J.

text:
    No. 1017.
    Mrs. de St. Romes v. Widow Blanc et als.
    The erasure and cancellation of a mortgage on the reoord, by the recorder, will not bind the mortgagee where it has been done without his knowledge or consent, and he may enforce his mortgage rights against the property mortgaged even after it has passed into third hands in good faith.
    APPEAL from Second District Court of New Orleans, Pellowes, Act J.

      Bosdius & Philips, for plaintiff and appellee.

      P. C. Cuvelher, for Wiltz; B. Egan, for Hauch; L. Gasiera, for Monseaux; appellants.
   Howedd, J.

This is an .hypothecary action to subject certain property, in the possession of the defendants, to a special mortgage granted by Pierre Devergfes to secure the payment of a promissory note for $12,988 95, dated New Orleans, March 2d, 1855, and payable in one year, to the order of the plaintiff.

The main question presented is, whether this mortgage which was duly recorded, has been erased in such a manner as to bind plaintiff.

It is shown that on the 6ft July, 1857, Joseph. Lisbony, then a notary, granted a certificate, under the provisions of Art. 3346, C. C., to the effect that on the 8ft March, 1855, P. Deverges presented to him said note duly paid, and which he (the notary) cancelled and 'innulled (“ biffé et annullé ”); and that upon the presentation of this certificate, the recorder erased the mortgage, on the 8th July, 1857, after which Devergés sold the property in question which, through mesne conveyances, is now held by the appellants. The note was produced by the plaintiff on the trial viilhoui any appearance of having heen cancelled or annulled as stated in the certificate, but on the contrary, it bears on its face a partial release by the same notary, on the 25ft April, 1855, about seven weeks after he certifies it had been presented to him by the maker as duly paid. The certificate is positively false as to the cancelling of the note, and evidently false as to its having been presented on the 8th March, 1855, six days after its date, duly paid; for the inscription of partial release was made in April, following, with the consent, implied, at least, of the payee and holder, who presents it with said inscription, which would not have been made if the note had then been paid. Suspicion is excited by the statement in the certificate that the note had been presented as paid at date prior to the date of the certificate. The object of the presentment is to obtain the certificate, and is naturally supposed to be made when the certificate is wanted and obtained. The certificate being false in one recital may be presumed to be false in all material recitals and was therefore not legal authority for the erasure by the recorder. There is no evidence to prove that the note was paid, or that the plaintiff consented to the erasure of the mortgage, and consequently she cannot be bound by the certificate of the recorder of mortgages that no mortgage existed — her consent being essential.

It has been often held that such a certificate is only prima facié evidence of the facts stated in it, and may be contradicted. 5 M. 625; 11M'. 526; 8 R. 130. In the last case quoted, the Court said, “ The mortgagee may show that the certificate is untrue; that the recorder acted on insufficient evidence, and without his consent; or, in case of an erasure by judgment, that he was not a party to the action brought, or proceeding instituted to cancel his mortgage. In such cases the mortgage, we think, exists unimpaired even against the innocent vendee, who has bought on the faith of a certificate that there was no mortgage on the property. If the latter be evicted the recorder of mortgages” (or the notary) “is’responsible in damages to him. ”

This view, the Court continued, is confirmed by the fact that an article in the Code of 1808, sanctioning the contrary doctrine, was omitted in the Code of 1825, as inconsistent, no doubt, with the rights of the mortgagor.

In this opinion, as to the effect of an illegal or unauthorized erasure, we fully concur.

The evidence in the record, legally admissible, as to the alleged kuovv-' ledge or implied consent of the plaintiff, and as to the plea of prescription, is insufficient, We think the lower court did not err in excluding the written unsworn statement of 30th December, 1859, of the notary Lisbony (since deceased) in regard to the certificate given by him, and also the act of mortgage given by Devergés to Ernest de St. Romes on 25th November, 1857. The plaintiff could not be bound by either. One was invoking ex parte evidence, not under oath, after the act; and the other was res inter alios acta.

The testimony of the witness, Eoulon, does not sustain the certificate of the notary Lisbony. The dates do not correspond. The certificate does not state that the note was presented when Lisbony gave the certificate. More than two years intervened between the alleged presentation of the note and the giving of the certificate. It nowhere appears in the record that Deverges had the note in his possession on the 6th July, 1857, when the certificate was given. Nor does the proof that Deverges was the agent of plaintiff support the defence. He is represented as' having paid the note, and he is not presumed to have been entrusted with his own note before its maturity, and the fact that it was not endorsed by ' plaintiff (being made to her order) is a presumption that it was never passed off by lier ,or from her possession. •

We think the reservation of defendants’ rights against their warrantors, as, made by .the. Judge a.quo. was- sufficient, and authorized under the circumstances.

It is therefore prder.ed that the .judgment appealed from be affirmed, with costs., ,


author: Hyman, C. J.

text:
    No. 793.
    Angelo Lanata v. J. B. Macera.
    An agent is bound to establish his authority under the general issue.'
    Where suit has been brought and after issue joined the defendant diep, it may be revived against his heirs and legal representatives.
    APPEAL from the Third District Court of New Orleans, Fellowes, J>

      P. S. Biron and H. Train, for plaintiff.

      A, & M. Voorhies, for defendant and appellant.
   Hyman, C. J.

The owner of the’ schooner Boma owed plaintiff $63, Giacoma Macera $330, and Antonio Tomasi $227 50.

J. B. Macera was appointed'agent to collect their claims.

This suit was brought by plain tiff, to recover of the agent, Macera, who, is charged as being an unfaithful agent, the $63 owing plaintiff, the $330. owing Giacoma Macera, which plaintiff alleged' was transferred to him, and $67 cost, alleged to have been incurred in a suit against the owner of the Boma, with interest.

After defendant had filed answer,, denying the allegations in plaintiff’s petition, he' died, and the suit was revived against Widow J. B. Macera, as tutrix of his minor‘children. The District Judge rendered judgment against her for $460, with judicial interest from the 4th day of August, 1863, and costs, and she has appealed. ‘

There is no evidence that',, plaih tiff is owner of Giacoma Macera’s claim, either by transfer or‘otherwise.1' Neither is there evidence that he had any authority to bring suit for the claim.

It is not shown that any cost is owing by the owner óf. the Boma in any suit.

The evidence shows J. B. Macera, as agent, collected from the owner of the Boma, a sufficient amount, to satisfy the claims above stated, but judgment cannot be rendered in favor of plaintiff for money due by the agent, to Giacoma, Macera, nor .for cost not shown to be owing.It is decreed that the judgment of the District Court be annulled and reversed. It is further decreed that plaintiff recover of the Widow J. B. Macera, as tutrix of the minor children of J. B. Macera, deceased, the sUm-of sixty-three' dollars, with interest thereon at the rate of five per cent, per annum from the 4th day oh August, 1863, till paid, and the costs of this suit-in the lower court, those of appeal to be borne by plaintiff.

It is further decreed that there be judgment against plaintiff as of non-suit'for the-remainder claimed by him in his petition.


text:
    No. 1223.
    W. A. Gordon, Syndic, v. Widow Maria Schmidt.
    To show the interruption of prescription by a partial payment, proof must be made of the payment, and the date when it was made.
    APPEAL fromthe Third District Court of New Orleans, FeUowes, J.

      Poselius & Philips, for plaintiff.

      D. FT. ITennen, for defendant.
   Taliaferro, J.

This suit is instituted by W. A. Gordon, the syndic of his own creditors and of the creditors of W. A. Gordon & Co., against the defendant on a promissory note for one thousand dollars, alleged to have been executed on the 17th June, 1859, payable" one year after date to her own order, and by her endorsed; the said plaintiff, being, in his aforesaid capacity, the holder of said note, which he avers bears eight per cent, interest per annum from maturity, and is secured by mortgage on a lot of ground in the city of New Orleans. The plaintiff avers that said, note was renewed, the interest being paid down to 17th June, 1861. That the said mortgage was made in favor of any holder of said note, and that defendant further stipulated that she would pay the fee of an attorney that might be employed to foreclose tbe said mortgage.

The Court below awarded judgment in favor of the plaintiff, with recognition of lien and privilege upon the property specified in the mortgage, and with interest at eight per cent, per annum, from the 17th June, 1861, on the amount claimed. The defendant appealed. The defence was pi,-«-viption. The defendant refers to Maskellv. Pooley, 12 An. 661, where Court said, that to show the interruption of prescription by a partial payment, “ proof should be made of the payment and of the date when it wasmade.”

The defendant also invokes the authority of the case in 12 An. 82, and refers to the article 3486 of the Civil Code.

We think these authorities will not avail the defendant. The . plaintiff fulfils the rule laid down in Maskell v. Pooley, by making proof .of the payment and of the time when it was made. Record, p. 13.

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

Rehearing refused.


text:
    No. 1258.
    Ann Lemon, Tutrix, v. Mary J. West.
    ■Where the holder of a promissory note has suffered it to prescribe, and the evidence shows no impediment to the institution of suit at the time prescription obtained, he cannot invoke the maxim contra non valentón arjere non currü prcescripiio to relieve him from its effect. See the case of Rabel v. Pourciau, ante, page 131.
    APPEAL from the District Court, Parish of West Feliciana, Cooley, J.

      Coliens & Leake, for plaintiff.

      D. W. Winter, for defendant.
   Taliaferro, J.

The plaintiff, in her capacity of tutrix, brings suit against the defendant on the following instrument:

“$567 75. Laurel Hill, La., March 5th, 1861.

“One day after date I promise to pay N. H.Lemon, or order, five hundred and sixty-seven dollars and seventy-five cents, for value received, with eight per cent, interestfrom the first of January last until paid.”

“ Marx J. WEST. ”

••«Ttheidefendant ,.pleads the prescription of five years. The plaintiff holds that ,.prescription was suspended during the late war, and claims ,the,;benefit„of the maxim contra non valaniem agere non currit prcescriptio.

Judgment was rendered in the court below sustaining the plea of •prescription and the plaintiff prosecutes this appeal......

,Theupefjti,Qn,w.as filed, .19th May, 1866, and citation was served on the ,?8d pf the same month.

It is shown that courts were open from about the middle of June, 1865, .leayiqgrtheiplaintiff from,that time to 5th of March, 1866, to bar prc.sprjptipn.j'hy.filjng; his, suit and citing his’debtor. It has been decided by this Court, that in such cases,..the: creditor can not avail himself of the pquit^hlp/hiaxipii.nyoked.i

It is therefore ordered, adjudged and decreed that the judgment of the DistrictuCourt be,affirmed, with costs. ;