author: •Euan, J.

text:
    No. 6566.
    Samuel F. Ticknor vs. M. M. A. Calhoun.
    ‘Tlio contents of a lost instrument creating obligations can not be shown by parol, until tlie loss itself lias boon proved and properly advertlsod.
    Where an absentee, represented by a curator ad hoc, who has not been able to communicate with his client, is sued on an instrument alleged to be signed by him, the plaintiff must prove the absentee’s signature as strictly, as though the signature had boon denied.
    ÁPPEAL from the Ninth Judicial District Court, parish of Rapides, Orsborn, J. Trial by jury.

      B. J. Bowman, for plaintiff and appellant.

      J. Carahan, for defendant.
   The opinion of the court was delivered by

•Euan, J.

This is an attachment suit against t-ho defendant, a nonresident, based upon an alleged written obligation given in consideration of a stay of execution for twelve months upon a judgment of plaintiff vs. W. S. Calhoun, obtained in the district court of Grant parish, and to secure its payment. The defendant was represented by an attorney ad hoc, who waged a vigorous and successful defense.

.We deem it unnecessary to notice the exceptions to the action and tó the attachment, and also most of the bills of exception with which the .record abounds.

Tlie answer was a general and special denial, and sets up that the plaintiff must sue Miss Calhoun and obtain judgment before attaching. The force or propriety of this last position we are unable to perceive. The papers and judgment in the case of Pratt & Tieknor vs. W. S. Calhoun, to secure which it is alleged defendant bound herself, were destroyed by the burning of the court-house in Grant parish. An act was passed in 1875 authorizing and prescribing the mode of reviving tlio burned records. It docs not appear that plaintiff availed himself of its provisions; but we do not regard that as furnishing the exclusivo means of evidence of the destroyed documents. The existence, character; date, and amount of the judgment vs. W. S. Calhoun are set forth in the written agreement of suretyship found in the record, and while thd production of' other evidence of the condition of the record at the timo of its destruction would have been safer and more satisfactory, wo are not prepared to pronounce it absolutely necessary. The attorney ad hoc applied for a continuance, which should have been granted.

The case was tried by a jury, which returned “ a verdict for defendant, as in case of nonsuit, tlio plaintiff having failed to prove the signature of Miss Calhoun.” Upon this an absoluto judgment of dismissal was erroneously entered in the court below. The only evidence of transfer of the judgment of Pratt & Tieknor vs. W. S. Calhoun, or of debts due said firm to the plaintiff, is that of Eobcrt A. Hunter, who says, “ ho received letters to that effect from both members of tlio firm, which are now mislaid or lost, and can not bo found after diligent search.”

Wo think the exception to the reception of parol evidence of transfer should liavo been sustained. The evidence was essential to recovery. The testimony of the witness himself disclosed the existence of better and written evidence, which no sufficient effort had been made to recover and no proper foundation laid to supply. Lockhart vs. Jones, 9 R. 381. In this case there is no affidavit of plaintiff and no advertisement of loss, and tlio testimony of his former counsel that ho had made diligent search for the letters without success was not sufficient. See same case, 9 R.; 3 An. 228; C. C. 2279, 2280.

The evidence of plaintiff is loose and unsatisfactory. He seeks to recover from the defendant the debt of another, evidenced by judgment alleged to be destroyed, and of which no other evidence is given than the acknowledgment in the instrument of suretyship sued on, the authenticity of which is denied. The compliance with the condition of the obligation is not shown in the maimer provided in it; i. a., by the written statement of W. S. Calhoun on tlio instrument of suretyship that the stay of execution had boon allowed him. There is neither allegation 'nor evidence as to whether the judgment had or had not been satisfied by the judgment debtor or by salo of his property. The defendant was a non-resident, whose appointed counsel made affidavit for time to communicate with his client and of a probable substantial defense if allowed opportunity to urge it. Both were denied him, and he was forced into an early trial. There was no evidence, of tho execution of tho instrument sued on by any witness who had seen the defendant sign it; none by any witness who had ever seen her write or sign her name; none by comparison of proved or admittedly genuine signatures. One witness swears to having received one letter from Miss Calhoun, whom he had never seen and never seen write. The letter was not present on the trial, and tho witness had not seen it for three years, but said the signatures to the letter and the instrument sued on were the same. Another witness swore that he never saw tho defendant sign her name, but had received letters from her, and believed the signature to tho document sued on to bo hers. The letters were not present, were not exhibited to the court or jury, nor is their date given. Another witness swore that ho behoved, but was not positive, that tho signature was Miss Calhoun’s; could not say he ever saw her write her name; had often seen the writing of-the defendant; could not say whether he over saw Miss Calhoun’s signature, except on correspondence between her and her brother; didn’t recollect whether tho brother had shown him more than one letter, and winds up by saying that the signature upon those letters was said by her brother to be that of defendant; lie also saw her signature officially,” but does not disclose how, when,-or where; and neither the letters nor the signature seen officially,” though he had just admitted he never saw her write, wore produced for comparison. The whole evidence of this witness shows that he testified from hearsay.

We think the plaintiff should have been hold to the same strictness of proof against an absent defendant, represented only by an attorney ad iwc, as though the signature were specially denied by a defendant present or by his heirs or other representatives. C. C. 2245; C. P. 325; 9 L. 562; 18 An. 419; 21 An. 148, 523. That evidence is only of three kinds:

First — Of witnesses who saw the instrument signed.

Second — Of witnesses who had often seen tho party write and sign his name'; and

Third — By comparison of handwriting; l. a., by tho production and comparison before tho court and jury of signatures, proved or admitted, with that sought to be proved, so that tho court or jury may themselves be able to compare and judge for themselves.

In 21 An. 148, just cited, one witness said: “I recognize the signatures as being genuine, having paid many drafts bearing tho same signatures and never disputed by either party.” Another witness said: “I recognize said signatures as being genuine, on tho ground that I have often and often seen said signatures.” The court held that the evidence was insufficient, and that article 325, Code of Practice, is the controlling law.

We agree with the jury in the case at bar that “ the plaintiff failed to prove the signature of defendant” by legal or satisfactory evidence, arid that ho has not made his case certain. As, however, the judgment does not conform to the verdict, which was one of nonsuit, the costs of appeal must bo allowed him.

It is therefore ordered, adjudged, and decreed that the judgment of the court below bo set aside and avoided, and that plaintiffs suit he dismissed as of nonsuit.


source: Caselaw Access Project

author: Wxly, J. DeBlaxc.

license: Public Domain

text:
    No. 5178.
    R. G. Latting vs. Fassman, Bryant & Co.
    Heel Ion 5H57 oí tlio United State's Revised Statutes declaring Hint suits by, or against an assignee in bankruptcy, touching any property, or rights oí properly transferable, or vested in such assignee, must be brought ■within two years from the time when the cause of action accrued for, or against him, only applies to causes of action which accrue after the. bankruptcy and in which the defendant really sots up an adverse interest to the plaintiff. It does not apply to suits brought by, or against tlw bankrupt, before his bankruptcy, and to which the assignee merely makes himself a parly, in order to carry on the suit.
    A partner in comuumdam is enUtled to sue, for a settlement of the partnership, and ascertain, and demand his share of its assets.
    j^PPEAL from the Sixth District Court, parish of Orleans. Saucier,

      Randolph, Singleton & Browne, for plaintiff and appellant.

      Thomas Gilmore and J. Ad. Rosier, for defendants.
   The Opinión of the court was delivered by

Wxly, J.

Plaintiff brought this suit in March, 1807, for the partition of the partnership existing between plaintiff and clofendants for tlio manufacture of bricks. In February, 1869, R. G. Latting was adjudged •a bankrupt and his estate assigned to E. E. Norton, assignee. In June, 1873, more than two years after his appointment, the assignee made himself a party to this suit. Thereupon E. It. Bryant, one of the defendants, excepted, on the ground that under the bankrupt act the assignee was barred by tlxc lapse of two years from instituting this proceeding or becoming a party to this litigation. lie also excepted to the litigation by Chambers, tlio alleged commondam partner of R. G. Latting, on the ground that ho was without interest, and could not interfere in this proceeding. The court maintained the exception and dismissed the suit.

E. E. Norton, assignee, and William Chambers, the alleged commondam partner of R. G. Latting, have appealed.

We think the court did not err.

The assignee permitted more than two years to elapse before making himself a party to the proceeding. By section 5057 of the Revised Statutes of tlio United States the suit could not be maintained by the assignee. Chambers, the alleged commendam partner of Latting, is wholly without interest to interfere in the settlement of the partnership for making bricks which was formed in February, 1862, between R. G. Latting and the firm of Fassman, Bryant & Co. The contract between Latting and Fassman, Bryant & Co. is in the record, and there is no authentic evidence that Chambers was a commendam partner of the partnership for the manufacture of bricks.

The position that before going into bankruptcy R. G. Latting conveyed to Chambers his interest in the partnership the settlement of which is the subject of review can not be maintained. Both before and after the bankruptcy he joined R. G. Latting in filing petitions in which he judicially admitted the interest of Latting and only claimed to bo a common-dam partner of Latting.

Judgment affirmed.

Ok Rbhearixo.

The opinion of the court was delivered by

DeBlaxc.

On the first page of the transcript, whose petition do we find? Not that of B. G. Latting, but that of “ the commercial house of R. G. Latting, a general partner, and William Chambers, a partner in commendam.” In that petition, filed since more than ten years, the two partners aver that in February, 1862, they formed a copartnership with the commercial firm of Fassman, Bryant & Co., and they pray for a settlement of that copartnership.

Of the three defendants, James L>. Brown alone denies, and so far only as lie is concerned, the existence of that copartnership. He charges that he never authorized or sanctioned the same. It may bo that he was and is ndt a member of that copartnership. As to the others, they were. This fact is established by their judicial admissions; and, besides, by proof adduced on the trial, which stands uncontradicted, and corroborates those admissions.

The. answers of defendants were filed in March and April, 1867. In 1868 the matter in litigation, was referred to an auditor, and in 1869 the auditor submitted his report. To that report, on the nineteenth of March, 1873, R. G. La-tting and William Chambers filed tlieir oppositions. In June, 1873, Bryant excepted to those oppositions on the grounds —•

First — That in February, 1869, Latting was adjudged 'a bankrupt, and on that account could not oppose the auditor’s report.

Second — That the supposed causes of action of plaintiff are barred by the statute of limitation.

Third — That Chambers is no party to this suit, and can not be heard in the manner and form attempted.

In June, 1873, Norton; as Latting’s assignee, joined in this controversy. The matter in litigation was referred to an auditor before Latting was adjudged a bankrupt, and the auditor made his report on the fifteenth of February, 18(19. On the ninth of June, 1873, Latting’s assignee appeared in court, and simply said:.“I make myself a party to this suit, and adopt as my own the petition of plaintiff.” He prayed for nothing more, for nothing less, than the commercial house of Latting had already asked. To this proceeding on assignee’s part a plea of prescription is opposed.

Section 5057 of the Revised Statutes provides that “ no suit at law or in equity shall be maintained, in any court, between an assignee in bankruptcy and a person urging an advertisement touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against the assignee.”

In this case no right of .action accrued to or against any of the parties after the bankruptcy. The assignee brought no suit, did not even file an opposition. In a suit and opposition which lie found already filed he asked to be and was allowed to appear as Latting’s assignee, to continue what Latting had commenced.

In 1873, before the assignee became a party, the commercial house of Latting had sued for a settlement of the copartnership, aiid the two partners, Latting and Chambers, had filed oppositions to the auditor’s report. All the assignee had to and could do, all he did, was to file an appearance. To what can the invoked prescription apply ? Is it to the action then pending, instituted in 1867, and never discontinued ? Is it to the assignee’s right to file an appearance ?

In his evidence,- taken under commission, Latting said : “ In the fall of. 1868 I gave Mr. Chambers a writing stating that upon a.final and amicable settlement of accounts between us I found myself indebted unto him in a certain amount, and transferred to him my interest in all the assets of the copartnership. He had paid and assumed to pay its debts.”

“If a chose in action upon which a suit has been brought was assigned before the commencement of proceedings in bankruptcy the suit may still bo prosecuted in the name of the bankrupt, and the assignee is the only party who can control the transfer.” Bump’s Law and Practice, p. 128.

Is the assignee, in and as to every case, an indispensable party ? As to that, the statute is permissive : “ He may or he may not sue. If only becomes his duty to prosecute a suit where the interests of the estate demand it. When he does, ho must show that interest. Unless it be to protect some right, there is no reason to make him a party to a protracted litigation. Of the necessity to proceed or not to proceed he is in the first instance the judge.” Bump’s Law7 and Practice, p. 128 to 130.

Tlio plea of prescription is not warranted by the facts. “ Plaintiffs do not claim an interest adverse to defendants in or touching any property or right of property of the bankrupt transferable to or vested in the assignee, nor do defendants claim any interest adverse to plaintiffs in or touching any property or right of property.” Ninth vol. National Bankrupt Register, p. 38 to 17; fourth vol. National Bankrupt Register, p. 161 and 162.

Defendants contend that Chambers can in no way bo considered a party to this suit, and that he should be entirely ignored, inasmuch as the liquidation of a partnership concerns only the partners, and takes place between them without tlio interference of the partner in commendam. That argument presents two questions :

First — Is the partnership in commendam recognized by our laws, and, if recognized, is the partner in commendam entitled to a share of the profits ?

Second — If entitled to a share in the profits, has he or not an action to compel the settlement of the partnership or copartnership, an action to ascertain, fix, and recover that share ?

That of the profits he has a proportionate share no one can justly deny. The Code so provides. It is manifest, then, as there exists no right without a remedy, that he lias an action to enforce any right which he may have acquired as a partner or as his partner’s transferee.

It is therefore ordered that the former decree of this court be set aside, the judgment appealed from annulled, avoided, and reversed, the exception filed by E. K. Bryant on the seventeenth of June, 1873, overruled and dismissed, and this case remanded to tlio lower court for trial on the merits ; the costs of the appeal to be paid by defendants.


author: Manning, C. J.

text:
    No. 6400.
    City of New Orleans vs. Julius Kaufman et al.
    The constitutional provision that taxes shall bp euual, and uniform, does not mo-vent tlio Legislatura, or any municipal corporation authorized thereto by the Legislature, from dividing the objects of taxation into different classes, and imposing different taxes on ouch class. It merely roauiros that the tax on each member of the same class shall be the same.
    j^PPEAL from the Superior District Court, parish of Orleans. Lynch,

      tí. P. Blanc, Assistant City Attorney, for plaintiff and appellant.

      Jiack & Dinlcehjpiel, for defendants.
   The opinion of tho court was delivered by

Manning, C. J.

The city of New Orleans sues for two hundred and fifty dollars as license tax for pursuing the occupation of junk dealer. The clause oí the ordinance upon •which tho right to demand this sum of tho defendant is based is: “ Every member of a company or firm, and every person not connected with a company or firm, keeping a junk store, or old iron, brass, copper, second-hand machinery, cordage, rags, loose cotton, and like articles, two hundred and fifty dollars.”

The defendant attacks tho constitutionality of the ordinance because of its discrimination of his avocation from the ordinary dealer in merchandise, and, having deposited in court or tendered the sum admitted to be duo for license as such dealer in merchandise, prays to be relieved from the larger tax now demanded. He also avers that tho tax is not uniform, since it imposes different sums for license on the'general dealer in merchandise and "the dealer in specified articles, and ho denies tho authority of the General Assembly to empower the city to impose a tax for trade licenses and professions. He also denies that ho carries on a junk store, and alleges that ho is engaged in a general wholesale and importing business, tho license tax of which is only one hundred dollars.

Worcester defines junk to be pieces of cable or old cordage, used for making points, gaskets, mats, etc. The ordinance has also defined what it means by a junk store, evidently intending by the. use of tho disjunctive conjunction immediately after that expression to show that what followed was an amplification or explanation of its meaning.

A junk store seems to be as clearly defined as a drug store. One of the witnesses, describing the kind of business pursued by defendant, says: “ It is a junk shop, a place where anything can be bought or sold, as paper, cordage, old rags, old .iron, anythifig at all that they can sell.” The defendant, explaining liis business, says ho will buy old iron, old rags, old books, old tin pots, ropes, and tin cans. From which it follows that ho does keep a junk store; and that this is an avocation, distinct and specific from that of the ordinary dealer in merchandise, is apparent. It forins a class by itself, and its signification is as well understood as are the expressions dry goods store, drug store, or groceries store.

Tho constitutional requirement that taxation shall be equal and uniform throughout tho State (article 118) does not inhibit the Legislature from, nor deprive it of, tho power of dividing the objects of taxation into classes, but it does command tho law-making department of the government to impose the same burden upon all who are in the same class. It has been held (State vs. Lathrop, 10 An. 398,) even that a tax or license may be imposed upon one kind of insurance companies, and another and larger tax upon a different kind, and that, too, when the only difference was -that one was a foreign incorporation and the other not. There is much stronger reason to hold that the particular avocation described in tho ordinance as a junk store forms a class, separate and distinct from that of a wholesale dealer and importer, in which latter the defendant places himself.

It is also urged tliat tho General Assembly is without power to impart to the City Council tho authority to levy taxes or collect licenses. The constitution empowers tho General Assembly, in the article already quoted, to levy and enforce taxes and licenses, and tho power of that body to create municipal corporations and delegate to them the authority to impose taxes, is universally recognized. An eminent writer, Cooley’s Taxation, 51, treating of tho general proposition that a Legislature can not delegate its powers, says : “ One clearly-defined exception to the general rule exists in tho case of municipal corporations in the levy and collection of local taxes. Universal custom, which tacitly or expressly has been incorporated in tho State constitutions, has made them a part of tho general machinery of State government, and in their case the State dobs little beyond proscribing rules of limitation, within which, for local purposes, tho power to tax is left to them, with authority subordinate to that of tho State to make rules for its regulation and execution.”

Tho Legislature has empowered tho City Council (Acts of 1870, extra session, pp. 35-^37,) to levy taxes, and impose a license tax upon all persons pursuing any trade, profession, or calling, and in pursuance of tho authority thus conferred tho tax now complained of was imposed by the city ordinance. The defendant is subject to the burden thus legally placed upon him, and tho judgment of tho lower court relieving him of it is erroneous.

It is therefore ordered, adjudged, and decreed that tho judgment of the lower court is avoided and reversed, and that tho plaintiff now have and recover of tho defendant, Julius Kaufman, two hundred and fifty dollars, with five per cent per annum interest from tho first day of March, 187C, and costs of both courts ; that the injunction sued out by plaintiff is perpetuated, and the lien and privilege of plaintiff upon the property of tho defendant, as asserted in his petition, is recognized and ordered to be enforced.


author: Egan, J.

text:
    No. 6549.
    Renshaw, Cammack & Co. vs. Edwin C. Herbert et al.
    Tlio action to annul a mortgage given by a debtor in favor of one of liis creditors, on the ground of simulation and fraud, is yreseribod by one year from tho date of the mortgage.
    APPEAL from the Ninth Judicial District Court, parish of Rapides, Orxborn, J.

      T. C. Manning, for plaintiffs and appellees.

      W. F. Blackman, for defendants.
   The opinion of the court was delivered by

Egan, J.

Plaintiff sues to enjoin the execution of two judgments against defendant, Herbert, and to annul and revoke said judgments and mortgages given to secure the debts on which they were obtained, on the ground of simulation, fraud, and injury to himself, a judgment creditor of defendant.

The prescription of one year is pleaded by defendants.

Tho evidence does not sustain tho charge of simulation. It appears that the notes secured by the mortgages, and which were the basis of the judgments attacked, were given in lieu of pre-existing notes held by the mortgagees, which were offered in evidence and most of which boro dates anterior to that upon which tho plaintiff obtained his own judgment against tho defendant, Herbert. There is no evidence to contradict the direct proof of these debts. Indeed, tho reality of the debt of defendant, Pickens, is admitted by plaintiffs counsel. If there was fraud which rendered the contracts, mortgages, and judgments attacked liable to be set aside at the suit of plaintiff,, it was to secure certain creditors in preference to others. These mortgages had been given more than one year before the institution of this suit to avoid them, which was also instituted more than one year after plaintiff himself obtained judgment against the defendant, Herbert, the common debtor.

The plea of prescription must prevail as to the mortgages sought to be avoided. C. C. 1987, 1994.

As to tho judgments to enforce the mortgages, it would follow that tho plaintiff can not complain, and their avoidance would be of no advantage to him. Indeed, it is difficult to see how, standing by themselves, junior judgments could affect injuriously a prior judgment creditor, or confessing them could be considered as giving an unjust preference over one who had already obtained his judgment more than twelve months before.

The facts of tho case sufficiently justified the plaintiff’s action to make us unwilling to award damages.

It is therefore ordered, adjudged, and decreed that the judgment appealed from bo annulled, avoided; and reversed, that the injunction sued out by plaintiff be dissolved, and that there be judgment in favor of the defendants and against the plaintiff, with costs of both courts.

Tho Chief Justice recuses himself, having been of counsel.


text:
    No. 6613.
    A. D. Doriocourt vs. Francois Lacroix.
    Consequential damages, and damages on account of deprived prospective profits, based on tlie opinions of witnesses, will not bo allowed. C. C. 2608.
    Tlie vendee may hold the vendor in damages for tho'latter’s refusal to carry out the sale, for whatever loss the vendee has been thereby caused, and for whatever profits he has boon thereby deprived of. ('. C. art. 2589 to 2611.

      Tlio measure of damages for a breach of contract is the loss arising naturally out of such broach; or such as is reasonable to suppose was contemplated by the parties, when tlioy formed the contract-, as would naturally flow from its breach.
    A PPEAL from tlie Second District Court, parish of Orleans. Tissot, L

      Charles F. Claiborne, for plaintiff and appellant.
    Til O. Denegre for defendant.
   The opinion of the court was delivered by

Manning, C. J.

Tlio plaintiff sues for damages for non-fulfillment'of contract of sale of certain property .in New Orleans. The defendant had permitted his property to become imperiled by the accumulation of arrears of taxes, unpaid for several years, and finally arranged with the city for a sale of several portions of it, which were duly advertised. At this sale the plaintiff bought an improved lot for three thousand two hundred dollars, complied with the terms by paying on the spot ten per •centum of the bid to the auctioneer, and received the proces verbal of the adjudication. He then tendered the residue of the cash payment, which was by the terms of sale one-half of the bid, and demanded his title. Lacroix never gave it to him, nor offered or attempted to give it to him.. Shortly afterward the same property was sold at the instance •of a creditor of Lacroix, and bought by that creditor. Plaintiff then sued for two thousand dollars damages, and the return of throe hundred and twenty dollars, the sum paid by him at the adjudication.

In other proceedings by rale, the notary was compelled to return this last sum, or what lie had left of it, which he did after judgment to that effect, so that the. demand for damages is the only question before us. The defense is that he could not make a title, because of incumbrances upon the property, or rather this defense was made under the general •denial.

The first material question for consideration is the nature of the claim <of plaintiff, for if the object of his demand bo the recovery of remote or consequential damages, or for profits which might have been made had -the contract been completed, we should reject it. Damages for supposed profits, based upon the speculative opinions of witnesses, will not ho •allowed. Gobet vs. Municipality, 11 An. 300; Minor vs. Steamer, 13 An. 564.

Unquestionably, a part of his demand is based upon the supposed loss >o'f profits, and to sustain it much testimony is offered to show that he could shortly afterward have sold the property for an increased price, one witness declaring that five thousand dollars could have been obtained for it. Discarding this means of estimating injury alleged to have been sustained by him, we have the fact in proof that the property was .actually sold a few weeks after the adjudication to the plaintiff for four thousand dollars, and, therefore, eight hundred dollars will be tho measure of his damages, if the law permits him to recover any.

Our Code declares that the adjudication completes the sale, and tho purchaser becomes tho owner of the property -adjudged (G. C., art. 2586, new No. 2608), and t-liat in every contract of sale there is a correlative right and obligation, fór as tho vendor may hold the vendee to his bid, and make him responsible for tho difference in price in a second salé, so tho vendee may hold tho vendor to his engagement, and make him responsible in damages for losses ho may sustain, or profits lie may lose. O. C., art. 2589 et seq., new No. 2611.

The sale was instigated by Lacroix, and ho was present at the public cry of the property and its adjudication. He not only knew tho incumbrances upon it, but tho sale was made under an agreement, the object of which was to relievo his whole property by selling enough to lift these incumbrances. Tho purchaser demanded his signature to the deed, and it was for him to object to receiving tho title, rather than for tho vendor to refuse to execute it. If tho purchaser chose to risk the defect of the title, when no material information was withhold from him by tho vendor, it was not for the latter to complain, and ho certainly can not make it a ground of refusal to comply with his contract to sell. Reciprocal obligations wore created between these parties by tho sale. The plaintiff complied with all that were assumed by him, and all that the law imposed on him by reason of his bid. The defendant did nothing, except to entice the plaintiff into assuming a contract which ho made no effort to perform.

The Code declares in general terms that tho damages due for a breach of a contract are tho amount of tho loss tho vendee has sustained, or tho profit of which he has been deprived (art. 1928, new No. 1984), and a recent writer on this subject (Benjamin on Sales, 665,) thus enunciates tho rule as well settled, quoting the words of a leading case: “'Wheretwo parties have made a contract which one of them has broken, tho damages which tho other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered, either arising naturally, i. e., according to tho usual course of things, from such broach of contract itself, or such as may reasonably bo supposed to have been in contemplation of'both parties, at the time they made the contract, as the probable result of tho breach of it.”

We think the sum already mentioned by us tho proper amount of damages in this ease. We are asked to include in it twenty-four dollars, .as tho deficit which the notary failed to pay over under the rule, that sum having been consumed in paying costs and commissions, but wo find no warrant in tho record for that. The proof seems to have been omitted.

It is therefore ordered, adjudged, and decreed that tho judgment of tlie lower court is avoided and reversed, and tliat the plaintiff do now-have and recover of the legal representatives of Erangois Lacroix the sum of eight hundred dollars, with five per centum per annum interest from J une 4,1874, and costs of both courts.


author: DeBlano, J. DkBlanc, J.

text:
    No. 6578.
    Succession of Mrs. E. R. Hardesty.
    Wlien tlio judgment appealed from does not condemn the defendant to pay any specific sum, tin; amount oí tlio appeal bond must bo fixed by the judge a quo.

    If tlio real amount involved is under iivo hundred dollars, this court is without jurisdiction.
    A PPEAL from the Parish Court for tho parish of East Feliciana. XX Lyonx, J.

      F. J). Brame and W. C. Flower, for opposers.

      Wedge c& Moore and W. F. Kernan, for tho succession.
   Tho opinion of the court was delivered by

DeBlano, J.

The counsel for Mrs. Hardesty, the appellee, have moved to dismiss tho appeal in this case, on the grounds:

First — That tho bond is insufficient in amount for a suspensive appeal, and was not filed in time.

Second — That no amount was fixed by the judge of tho lower court in his order of appeal.

This appeal is taken from a judgment homologating the final account of an executor. The judgment does not condemn appellants to pay any sum, and this is one of the classes of cases in which tho judge can and should fix the amount of the appeal bond. 10 An. 345; 20 An. 108; 21 An. 43.

The judgment appealed from was signed in April, 1876. The day on which it was signed does not appear. A motion for a now trial was overruled on tho twenty-ninth of April, 1876, and tho appeal bond filed on the ninth of May, within legal delay.

The third ground is fatal to tho appeal. Tho judge has fixed no amount for tho appeal bond, but merely granted a suspensive appeal on appellant’s giving bond in amount and conditioned according to law. 26 An. 208.

To dismiss this appeal there is an additional reason, and, though our attention was not called to it, wo are bound to notice it.

Tho share inherited from the succession of Mrs. E. B. Hardesty by each of the appellants is §1212 45, and by both §2424 90.

Tho tableau by them opposed was filed on the twenty-eighth of September, 1875, and, in Juno and December, 1874, they had each received, and so acknowledged, one thousand dollars, and, together, two thousand dollars. The balance of their shares in said succession is, at most, $424 90, to each $212 45, which appellee contends and shows was paid to Franklin Hardesty, now dead, and who, at the time the payment was made, represented himself and acted as appellant’s attorney.

Even if we were to consider that the aforesaid balance does not constitute two separate and distinct claims, and that, as alleged by appellants, the attorney was without authority to receive it, still the real and only amount involved is under five hundred dollars, and this court is without jurisdiction, ralione maierice, to pass upon it.

It is therefore ordered, adjudged, and decreed that the appeal in this ■case bo and it is hereby dismissed at appellant’s costs.

DkBlanc, J.

It is settled, as contended by opponents, that when the creditors of a succession are litigating their rights contradictorily with each other, and the value of the succession exceeds five hundred dollars, an appeal lies to the Supreme Court, though the claim of each creditor may not amount to that sum; but does an appeal lie for the sole reason that an opposition is made to an administrator’s account, though the pleadings and evidence show that the claim urged is utterly foreign to the succession ? ■ Assuredly not.

In this case the only contest is in regard to the payment made by the executor to one Franklin Hardesty, an attorney-at-law, representing himself as the counsel and agent of the opponents, and whose authority is not denied under oath in the pleadings filed. The amount thus claimed toy opposition is $212 45, alleged to bo still due to each of the appellants. If so, by whom is it duo ? Is it not by either the executor, if he paid to one having no authority to receive, or by Franklin Hardesty’s estate, if he had authority to receive and failed to account ?

The opponents do not dispute the correctness of the active or passive man, but only ask that the balance of any shares to which may be entitled the representative of Franklin Hardesty bo reduced by the amount then received by him in his alleged capacity as their agent and counsel. Ve refrain from expressing an opinion on this point, and, inasmuch as appellants conceive that our court can entertain jurisdiction of tins matter, we will restrict our decree of dismissal to the other ground upon which it is based, and reserve for future adjudication the question of jurisdiction passed upon by us with a view of restoring this controversy to what we considered as its legitimate channel.

It is therefore ordered that, with the reservation niade, the decree dismissing the appeal in this case be and it is hereby, re-affirmed.


author: Marr, J.

text:
    No. 6555.
    John Osborn vs. Michael Segras.

      A mortgage, given to secure a real debt, on which a judgment lias been given, will be maintained, although it appear that the judgment, lor want of jurisdiction in the court, is void.
    The judge of' a court who has rendered a judgment which is null and void, can not, as creditor of one of the parties, avail himself of the nullity.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. JDaigre, J., Parish Judge, acting for the District Judge, recused.

      II. J. Bowman, for plaintiff and appellant.

      It. A. Hunter, for defendant.
   The opinion of the court was delivered by

Marr, J.

On the seventeenth of May, 1869, judgment was rendered in the district court of Rapides parish in favor of Sampson against Malvina Goss, on her confession and waiver of domicile, her residence being at the city of New Orleans. This judgment was recorded on the twenty-ninth of March, 1870, in a separate judgment book, which it seems the recorder of Rapides continued to use, notwithstanding the requirement of the act of 1869, No. 95, section nine, that all mortgages shall be recorded in the same books or series of books. It was recorded as a judicial mortgage in the mortgage book on the first of July, 1874

On the eighteenth of September, 1874, Malvina Goss, by notarial act, •acknowledged that she was indebted to Michael Segras, “the legal holder, owner, and transferee,” in the amount for which this judgment was rendered, and to secure the payment she specially mortgaged to him a lot in the upper suburbs of Alexandria. This act was recorded in the book of mortgages on the seventeenth of January, 1875.

John Osborn recovered judgment' against Malvina Goss in the Sixth District Court for the parish of Orleans on the twelfth of April, 1873, which was recorded on the thirty-first of May, 1873, in the same separate judgment book, and, on the twenty-seventh of July, 1875, it was recorded as a judicial mortgage in the mortgage book in the office of the parish recorder of Rapides.

Execution issued on this judgment, under which the sheriff seized, and, on the sixth of isfovember, 1875, offered for sale the lot specially mortgaged to Segras. Before the day of sale Segras filed a third opposition, setting up his mortgage and asserting his right to be paid by preference out of the proceeds of the sale about to be made. Osborn bid more than two-thirds of the appraisement, but the sheriff refused to adjudicate the property, because of this opposition, and because the amount bid was not sufficient to discharge the mortgage in favor of Segras.

Osborn answered this third opposition; and he alleged the nullity of the special mortgage on tho ground that the judgment which it was given to secure was void for want of jurisdiction ratione permite. He also charged that tho recorder had interpolated the words,antlknownas part of lot four, square twenty-two,” which were omitted in recording this mortgage, and that tuis interpolation by interlining was after Osborn’s-judgment was recorded; that is, after the twenty-seventh of July, 1875.

Osborn also took a rule on the sheriff to compel him to make the adjudication and to convey the property to him in accordance with his bid; and he took a rule on Segras and tho recorder to show cause why tho alleged interpolation should not be erased.

The sheriff answered that he could not make tho adjudication, because tho amount bid was not sufficient to discharge the senior special mortgage in favor of Segras, and ho acted and relied upon articles 683 and 684 of the Code of Practice.

Tho recorder and Segras answered separately, but to tho same effect, substantially, that the mortgage was filed for record in the office of tho recorder on the seventeenth of January, 1875; that in copying into the mortgage book tho recorder inadvertently omitted'tho words of description as stated, and when ho discovered the omission ho corrected the record by interlining these words as they were in tho original; and they also pleaded that the mortgage took effect from the date of filing in tho office for record.

The case was tried on these pleadings. Tho proof satisfied tho judge that the alleged interpolation was made before the recording of Osborn’s judgment, and that it was properly made to correct a mere clerical error and omission. He accordingly dismissed the rules, and Osborn appealed. The appeal was dismissed on the ground that the appraised value of tho lot in controversy was not sufficient to give this court jurisdiction; and this suit was brought immediately after the appeal was dismissed.

The petition sets up the same grounds taken by plaintiff in tho two rules just mentioned: the nullity of tho judgment of tho district court of Rapides against Malvina Goss, because her domicile was at tho city of Now Orleans; the consequent nullity of the .mortgage in favor of Segras, and the fraudulent interlineation of the words omitted in recording the mortgage, without which there would have been no description of the property mortgaged.

The petition also charges that this mortgage was given by Goss on the eve of her marriage with Segras, for the purpose of shielding her property against the pursuit of petitioner and preventing his collecting his judgment.

The prayer is that the judgment in favor of Sampson against Goss, “now owned by said Segras as transferee,” be declared an absolute nullity; that the special mortgage given to secure its payment be also declared a nullity, and that petitioner’s judicial mortgage be declared superior to said pretended mortgage.

Defendant pleaded the exception res adjudieata, and he introduced the record and proceedings in Osborn vs. Goss in support of his plea. The exception was maintained and the suit dismissed, and Osborn appealed.

All that is set up in this petition touching the nullity of the judgment and of the mortgage and the interpolation of the words omitted in recording the mortgage was passed upon finally in the judgment on the rules in Osborn vs. Goss, and that judgment not only declared the mort•gage in favor of Segras to be valid, but that it had been so recorded as to give it superiority of rank and privilege over the judicial mortgage of Osborn. We have no authority to disregard that judgment or to open the questions which it settled and determined.

We may add that the nullity of the judgment for want of jurisdiction would by no means involve the nullity of the mortgage given to secure the debt for which that judgment was rendered. It has not been suggested that Malvina Goss did not actually owe Sampson the amount for which the judgment was rendered, and this indebtedness was ample consideration for the mortgage without regard to the judgment.

Counsel for appellant says in his brief that there is sufficient evidence in the record to enable this court to decide the case upon the merits, and he expresses the hope that we will end this litigation. We infer from this that he attaches no importance to the only new matter se<fc up in this suit, the alleged object of Goss in giving the mortgage in favor of Segras to shield her property frem the pursuit of plaintiff. As the case was tried on the exception there was no opportunity for offering proof of this allegation, and if wo deemed it material we would remand •the cause. But in the view we take of the case this allegation, if proven, would not influence our judgment, and we eliminate it as of no value or .significance.

We think the plaintiff is concluded on all the real determining points by the judgment on the rules in Osborn vs. Goss; but if there could be any doubt on that subject there are facts disclosed by the record which we can not ignore or pass sub silentio, which were not noticed by counsel on either side, and which we consider fatal to the pretensions of the plaintiff.

John Osborn, the plaintiff, was judge of the district court of Eapides, and he rendered and signed the judgment in favor of Sampson vs. Goss. The petition in that case stated that defendant resided at the city of !New Orleans, and she expressly waived domicile in her confession of judgment. The most casual reading of the pleadings would have exposed to the judge his utter want of jurisdiction, and the absolute nullity of the judgment which he rendered and signed.

In Jones vs. Morgan, 6 An. 631, plaintiff had been judge of one of the-district courts, and he had rendered a judgment separating Morgan and his wife in property and dissolving the community between them. This judgment was manifestly collusive, a fraud upon creditors, and was rendered at the request of the parties upon no other evidence than their acknowledgments in open court. It was a.voluntary separation of property by the mere agreement of the parties, which the law declares to be null “both as respects third persons and the husband and wife between themselves.” C. C. 2427 (2401).

Plaintiff was a creditor of Morgan and of his succession, and he-brought suit against the widow and heirs to subject the property in the-hands of the widow to the payment of his debts. He based his right on the nullity of the judgment of separation which he had rendered while he was judge, and which he alleged was collusive and fraudulent. There was no element of nullity wanting; but this court said other persons might avail themselves of the nullity, but the judge who rendered the judgment could not, and whatever might be its effect as to others it was conclusive as to Mm.

The judge is bound by his oath of office, by his solemn obligations and duty to the public, to administer the law. and he is actively violating his-duty when he takes cognizance of a cause and renders judgment without jurisdiction as well of the parties as of the subject matter in controversy. He may do no harm to the defendant who confesses judgment, but it is certainly deluding the plaintiff to render a judgment in his favor which is a mere nullity and which can not bo enforced. Judgments import absolute verity; they are accepted as truth itself, and the-judge who renders a judgment gives all the assurance which attaches to his official character, of his authority and jurisdiction in the cause, of the truth of the hypothesis of fact upon which the judgment is based,, and of his faithful application of the law to the facts. We can not permit a party to invoke for his personal pecuniary benefit and advantage the nullity of a judgment rendered by him in his public official capacity; and he must be held to all the effects and consequences of that judgment precisely as if there wore no cause of nullity alleged or existing-..

The conventional mortgage of the eighteenth of September, 1874, did not place the property of Malvina Goss more effectually beyond the reach of plaintiff’s judicial mortgage than the recording on thefirst of July, 1874, of the judgment rendered by plaintiff had already done six months, before the conventional mortgage was recorded. Plaintiff can no more deny or controvert the legal effect of the recording of that judgment than he can attack the judgment itself by alleging his want of jurisdiction and consequent violation of his official duty. The judgment may be absolutely void, and the recording of it without effect as to all other-persons, but tlie judge who rendered it stands pledged to its legality and validity, and he can not be heard to say that it is not valid or to question its effect when recorded as a judicial mortgage so far as his personal rights and interests are concerned. The effect, as to him, is that the judicial mortgage resulting from the recording of this judgment outranks the judicial mortgage under which he claims, and that it gives to Michael Segras a priority and preference over him without regard to the conventional mortgage to which the same effect was given by the judgment on the rules in Osborn vs. Goss.

Wo think the judgment appealed from does justice between the parties, and it is tliorefore affirmed with costs.


text:
    No. 6006.
    A. L. Slawson vs. Robert J. Ker.
    The surety on a bond, by virtue of which a sheriff releases money, or other property, under attachment in his hands, is liable on the bond.
    A PPEAL from the Sixth District Court, parish of Orleans. Saucier, A J.

      Samuel P. Blanc, for plaintiff and appellant.

      Henry B. Kelly, 'for defendant.
   The opinion of the court was delivered by

Manning, C. J.

This suit is upon a bond, to which the defendant is surety, executed by W. E. Hunt, to obtain the possession of certain moneys in the hands of the sheriff, the proceeds of the sale of property which had been attached, the ownership of which was in dispute.

The plaintiff owned and possessed nineteen mules. In 1871, Hunt, a resident of Kentucky, attached them as the property of one O’Brien, his debtor. Slawson intervened in that suit, and sought in vain to effect a release of his property. Failing in this, and to save the expense of keeping the mules, a sale was consented to, the proceeds to be paid over to the sheriff, and to remain in his hands in lieu of the mules until a final adjudication of the rights of all the parties. The sale was to be made by Montgomery, a public auctioneer. After the sale, Hunt applied to the sheriff for delivery of the proceeds to him, and obtained them, at which time the bond in question was executed.

The following answers were made by the defendant on cross-examination :

Question. “ Did you not know that ho intended to got the money from the sheriff by giving this bond ?”

Answer. “ I thought, as a lawyer, that the sheriff should not have taken tho bond. If I had been the lawyer of the sheriff, I would have advised him not to take any such bond.”

Question. “ Did you not know that he was taking that bond to tho sheriff for the purpose of getting this money ?”

Answer. “ I did not think it would be accepted, but I thought it was for that purpose.”

Question. “Answer me this question: Did you not know that Mr. "Wooldridge intended to get the money out of the sheriff’s hands by virtue of that bond?”

Answer. “ Yes, I presumed that was the fact.”

Upon tho trial of Hunt’s suit against O’Brien, in which plaintiff was an intervener, the title of the latter to the property was maintained. Calling on the sheriff for the money, he was presented with the bond, duly assigned to him. The principal was not to be found ; tho property was gone; tlio money was gone. Nothing remained but the bond.

The defense is that the instrument sued on was executed in a judicial proceeding, and is invalid, because not authorized by law; that the plaintiff in an attachment suit is not permitted legally to withdraw from the hands of the sheriff the attached property, and that neither plaintiff nor defendant can withdraw tho proceeds of tho sale of attached property from that officer’s hands.

The equity of the case is so strongly with tlio plaintiff that his recovery can be prevented only by the inexorable prohibition of the law, and if this is a judicial bond, possessing the qualities and attributes of that species of obligation, and none, other, the plaintiff is barred by tho want of authority of the sheriff, as sheriff, to take it.

Divest the case of tho feature, that it was tho sheriff who took the bond. A party sues his debtor, and attaches property that lie chooses to allege belongs to that debtor. The real owner intervenes, and claims it. There is but one of tho three that can obtain a release, of the property on bond, and ho is indifferent wliat becomes of that which is not liiw. To keep the property in the custody- of the law would consume it. To prevent this, the two who can not bond it judicially agree by. a convention between themselves that the property shall bo sold, and the proceeds be paid over to a third person, mutually agreeable to them. This third person receives tho proceeds of sale, and lends it out, or delivers it to one of the claimants, upon the execution of s n obligation to pay it to the other, if he should be determined to be the owner of tho property sold, or to pay it back to him, in order that ho may pay it to the owner. Can the,re be any doubt that a recovery can be had upon such a bond ? And if this be so, in what respect is the liability changed when it happens that the third person, thus selected by the parties, is an officer of the c mrt before which tho litigation is pending ?

The surety to the bond admits that he knew its object was to enable one of the parties to get possession of the money. He signed it in the belief that the party principal would get the money, unless the person who hold it was recalcitrant, and if he did get it, that himself would not be bound to replace it. We think otherwise.

We must not be understood as contravening or modifying the doctrine that where a judicial bond is taken by a public officer without authority of law, the bond itself is a nullity, and binds no party to it. But the obligation sued on is, under the special circumstances of this case, an express convention between the plaintiff and intervenor in the original suit, having for its object .the provision of a mode of preventing the destruction of the property, outside of the special means furnished by any specific directions of the Codes, and in that respect it is an obligation that we can legally enforce.

It is therefore ordered, adjudged, and decreed that the judgment of the lo-wer court is annulled, avoided, and reversed, and that plaintiff have and recover of the defendant §2461, with five per centum per annum interest from the eighth day of June, 1873, and costs of both courts.


author: Egan, J. DeBlanc, <J.

text:
    No. 6607.
    Union Insurance Company vs. Mrs. Delphine Benit.
    An interloautory decree dissolving an injunction on bond, may bo appealed from.
    A PPEAL from the Sixth District Court, parish of Orleans. Saucier, A J.

      Henry Chiapella., for plaintiff and appellee.

      Frank .7). Chretien,'tor defendant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Egan, J.

This appeal is from an interlocutory order dissrlving, upon bond, under article 307, Code of Practice, an injunction sued out by Yictor Benit, third opponent and intervenor, to prevent the execution of an order of seizure and sale as the property of another of certain real estate in the parish of Orleans the ownership of which is claimed by him.

The case is not before us on its merits, and ice can not in this proceeding pass upon the sufficiency or insufficiency of the title set up, or any other matter affecting the merits. The only inquiry is as to the correctness of the order of dissolution on bond obtained by the plaintiff in the seizure. The effect of the, dissolution was to allow tho salo to proceed. This was clearly irregular, and such irreparable injury as to entitle the party complaining to appeal. C. P. 566.

The motion to dismiss the appeal must be overruled. The dissolution-on bond is not permissible in such cases.

It is therefore ordered, adjudged, and decreed that the interlocutory order appealed from be annulled, avoided, and reversed, and the injunction reinstated at the cost of the seizing creditor, the Union Insurance Company of New Orleans, and that said appellee likewise pay the costs of appeal.

On the Merits.

The opinion of the court was delivered by

DeBlanc, <J.

For the reasons given in the opinion delivered on the motion to dismiss the appeal —

It is ordered, adjudged, and decreed that the interlocutory order appealed from be and it is hereby annulled, avoided, and reversed, the dissolved injunction reinstated, and that the Union Insurance Company of Now Orleans pay costs in both courts.


author: Howell, J. Manning, C. J.

text:
    No. 5170.
    Turner, Wilson & Co. vs. W. W. McMain et al.
    Legal citation upon one of several solidary debtors interrupts prescription as to all.
    The interruption of prescription by a suit, works a suspension of prescription, as to every one affected by the interruption, during the pendency of the suit.
    Mere inaction on the part of a plaintiff, does not amount to an abandonment of his suit.
    ^PPEAL from the Fourth District Court, parish of Orleans. Lynch,

      J¡. K. Washington, for plaintiffs and appellants.

      Bandolph, Singleton & Browne, for defendants.
   The opinion of the court was delivered by

Howell, J.

In May, 1855, plaintiffs instituted this suit on a note for §5345 53 against the makers, W. W. McMain, F. Vose, and Mrs. L. C. Frierson. Citation was served on McMain only. The case was submitted to the judge in May, 1857, who ordered it to “be put back for further proceedings.” In 1873 it was again put on the issue docket, Mr. and Mrs. Frierson cited, default taken as to McMain, prescription filed by Mrs. Frierson, other proceedings had, and judgment rendered con-. demning McMain to pay the amount of the note and interest, and maintaining the prescription pleaded by Mrs. Frierson, and from the latter part of the decree plaintiffs appealed.

It is contended on their behalf that citation on MeMain, one of the obligors in sólido, was a continuous interruption of prescription as to his co-obligors.

Article 3552 of the Revised Civil Code provides that “a citation served upon a debtor in solido, or his acknowledgement of the debt, interrupts the prescription with regard to all others, and oven their heirs.”

This only declares the interruption of prescription as to co-debtors. Interruption and suspension are different, and the Code, in treating of the suspension of prescription, does not include the service of citation as one of the causes with regard to co-debtors. As to those who are not in court, the citation operates only as an interruption of the prescription which begins again to run.

This is supported by the fact that the law gives the same effect to both the service of citation and the acknowledgment of the debt. It has never been contended that an acknowledgment is a continuous interruption or a suspension of prescription.

We think the court a qua did not err in sustaining the plea.

Judgment affirmed.

On Rehearing.

The opinion of the court was delivered by

Manning, C. J.

The note in suit is a solidary obligation. Shortly after its maturity suit was instituted against all parties, but citation was served only upon MeMain, and W. J. Frierson, the husband of one of the obligors. Mrs. Frierson was cited December 1,1873, and pleads prescription. This last service was nearly nineteen years after the maturity of the note.

The citation of one of the solidary debtors in 1855 interrupted prescription as to all the others. The liability of Mrs. Frierson will depend upon the question whether that interruption lasted during the continuance of the suit. The suit was never discontinued or dismissed, and ended by a Anal judgment upon the pleadings and process, as they were filed from time to time.

The counsel for the defendant relies on the declaration of the Code that if the plaintiff abandons or discontinues his demand the interruption shall be considered as having never happened (Civil Code, article 3485, new No. 3519), and, while admitting that frequent decisions of this court have required that the abandonment must be active, he insists that the conduct of the plaintiff in not calling his suit for trial from-1857, when a hearing was had and no decision made, to 1873, when his client was first cited, constitutes such an abandonment as the Code has in view. In other words, that the inaction of the plaintiff is equivalent to an abandonment.

Ho also contends that the interruption of prescription consequent upon a citation, is the same as that produced by an acknowledgment of the debt, and that in both cases prescription begins to run again immediately (Civil Code,'article 3517, new No. 3552), while his adversary insists that when the Code says a suit against one of the solidary debtors interrupts prescription with regard to all (idem., article 2092, new No. 2097), it means that the interruption lasts as long as there is a suit.

The distinction between an interruption and a suspension of prescription is clearly defined, and need not here be elaborated, since it does not enter into this case. Our inquiry is of the nature, extent, and duration of the interruption produced by a suit. Marcadé, treating of the interruption thus resulting, says:

“ Et d’abord une demande en justice, Particle ne parle, il ést vrai, que d’une citation en justice, ce qui pourrait fairo c.roire que l’effet interruptif n’est attribué qu’a la demande formée par exploit introduotif ¿’instance; mais la raisonvlit, et tout le monde le recommit aujourd’hui, que tonto demande en justice, qu’elle soit formée par uno citation ou autrement, interrompt la prescription. * * Ce n’est pas seulement pour le temps antérieur a la demande, que cette demande interrompt la prescription, c’est aussi, comino nous l’avons deja clit en nos observations préliminaires sur ce chapitre, pour'tout le temps que durera l’instance; en sorto qu’une prescription nouvelle ne pourra pas recommenccr contre le demandeur avant le jour ou sera rendu le jugement par lequel cette instance so terminera. S’il en eut été autrement, si la demande, en effagant le temps qui s’est écoulé avant elle, eutlaissée la proscription nouvelle rccommenccr á l’instant méme, il s’en serait suivi ce résultat absurde, que toutes les fois que le procés aurait duró pendant un teipps plus long que le délai de la prescription applicable a l’espéce, le droit du demandeur aurait été anóanti'par la prescription nouvelle avant que le jugement fut prononcé. * * C’est dono une prof onde hérésie que cello qui donne k la demando judiciairo l’effet d’anéantir la prescription antórieure en laissant commencer des le méme jour une prescription nouvelle.” Traite de la Prescription, p. 124

Marcadé answers the question which the defendant’s counsel addresses to us, whether the plaintiff’s remaining quiet for a very long period shall not be legally construed as an abandonment of his suit: “ L’interruption dure tant que dure le procés, fut il de quarante ans, cinquante ans, et plus ;” and Troplong is equally explicit: “ Du reste, tant que le procés se poursuit, il n’y a pas de prescription possible; Taction durát-ello trente, quarante, et cinquante ans.” De la Prescription, p. 298.

We must then inquire if the doctrine of-this court has been in' accord with that announced by the French commentators. The earliest doctrine was in 1811, Riviere vs. Spencer, 2 Martin, 83, when it was said that prescription was interrupted in that case by a suit in 1795 which had been kept alive till 1801, and the new suit was within time, reckoning from the last date, and the court said: “ When possession is interrupted, full time must be reckoned from the cessation of the interruption.”

The point was met fully in Driggs vs. Morgan, 10 Rob. 123, when, considering the interruption of prescription by a reeonventional demand, the court said: “ Such interruption necessarily exists during the pendency of the action, and until its filial termination,” and quoted Dalloz: “ II n’y a pas de peremption, ni dos lois, de prescription possible, taut quo la procedure se poursuit,” In a later case, Wilson vs. Marshal, 10 An. 331, the language of the court was imperative: “ It is impossible for prescription to run while a suit is pending;” and in Barron vs. Shields, the court remarked the omission from our Code of those clauses of article 2247 of the Code Napoleon, which declares that the interruption of prescription is considered as non-avenue if the suit be informal, or the demand be rejected, and proceeded: “If a suit be instituted upon a note before it is due, and pending the suit the note matures and is protested for nonpayment, prescription of .that note is interrupted so long- as the suit lasts after maturity, even if the suit be ultimately dismissed upon an exception of prematurity.” 13 An. 58.

The text of that article of the Code Napoleon is : “Si l’assignation est nude par défaut de for ne ; si le demandeur se desiste de sa demando; s’il laisso périmer l’instanco; ou si sa demando est rejotée, l’interruption est regardée eoninie non-avenue.” We may add to these comments of the court the observation that the omission of the clause “ s’il laisse périmer l’instance” lias a special significance. The absence from our Code of that part of article 2247 of the Code Napoleon evinces that its object was to extinguish that “profound heresy” which Marcada notices as prevailing to some extent among the French legists, and to leave no room for doubt as to the effect of the interruption of prescription by a suit under our law.

One of the decisions referred to by the defendant’s counsel in his brief, Millaudon vs. Beazely, 2 An. 916, seems to support his theory. The language is: “ If it be conceded, as contended for, that the acknowledgment in the one case and the citation in the other interrupted prescription, it commenced again immediately to run as to this defendant, and was completed before the commencement of the present action.”

Independent of the loose manner in which the dictum is interjected into the opinion, and of its qualifying term, we may observe that the same court held in the following • month that the prescription interrupted by a suit commenced to run from the date of the judgment in that suit; i e., from its termination, and not its commencement. Hite vs. Vaught, idem, 970. These cases are cited in Richard vs. Batram, 14 An. 144, where it was said prescription began to run again in favor of an obligor, at least from the date of the judgment against his co-obligor.

From this review of the decisions of this court it will be seen that the interpretation of the French commentators has been adopted here from an early period, and has been consistently adhered to (unless we may except the isolated dictum in Millaudon vs. Beazely as an exception), and we may therefore adopt the language of Marcadó, “ de tout temps on a reconnu que du moment que les droits en actions prescriptibles sont portés devant le juge, ils ne peuvent plus périr, pas plus par une prescription nouvelle que par Fancieime.” For these reasons—

It is ordered, adjudged, and decreed that the judgment heretofore rendered in this cause be set aside and canceled, and that so much of the judgment-of the lower court as sustains the plea of prescription in favor of L. C. Frierson is annulled, avoided, and reversed, and that there be judgment in favor of plaintiff against her for the sum of í¡?5345 55, with six per cent per annum interest from the twenty-sixth day of April, 1852, and costs of both courts, and that the judgment of the lower court against W. W. McMain is affirmed.