21 La. Ann. 121 | La. | 1869
The plaintiffs have appealed from a judgment sustaining the plea of prescription of five .years to the following instrument, as a non-negotiahle promissory note, to wit:
“State op Lo uisi ax a- — P arish op Concordia.
“ We, the undersigned, David Percy Williams and Mistress Elizabeth Matilda Gillespie, his wife, of the parish of Concordia, State of Louisiana, acknowledge ourselves jointly and severally indebted unto the ‘ President, directors and company of the Bank of Louisiana,’ iii the full sum of thirty thousand dollars ($30,000), being for a loan of money this day made to us by the said corporation, the amount of which we confess to have received. Which said sum of thirty thousand dollars we do, for ourselves, our heirs, executors and administrators, hind ourselves jointly and severally to the said president, directors and company of the Bank of Louisiana, punctually to pay in one year from tills date, and to comply with all the conditions of the mortgage this day-made by ns, and also with the obligations of the charter of the said hank.
‘ ‘ In testimony whereof we hereto subscribe our names, on this twenty-eighth day of April, A. D. eighteen hundred and fifty-seven.
“ DAVID PEECY WILLIAMS, “ELIZABETH MATILDA GILLESPIE.
“ Witnesses:
“ W. It. C. Vernon,
“A. G. Tyler.
“by HENEY BASIL SHAW, Attorney.”
(Paraphed) “ Me variatur.
“ Chas. S. French, Notary Public.
Vidama, April 28, 1857."
By law, “ all promissory notes, whether the same he negotiable or othermse, shall be preseribedin five years.” C. C. art. 3505; Act 3852, p. 90, $ 3.
More than five years having elapsed between the maturity of the
Without going into an investigation of the nature and classes of bonds existing at common iaw, it is sufficient to say that, in our law, bonds seem to be written obligations, which’ are dependent on some contingency, and are specially provided for ; while the instrument in suit possesses all the essential attributes of a promissory note, which are, in no legal sense, affected by any other stipulations or recitals embodied in it.
A promissory note is defined to be “a written engagement by one person to pay another person, therein ' named, absplutely and unconditionally, a certain sum of money at a time specified thorein.” Story on Notes § 1; Ryles on Bills, p. 3. “ It must contain a legal promise for the cQvtctin ‘ payment of a certain sum, and the maker and the payee must-be designated with sufficient certainty. * * * If to a receipt for money, the words ‘ to be returned when called for ’ are added; if the signer of an instrument acknowledges in it that a pertain sum of money is borrowed on the promise of payment thereof; or that a certain sum was received of A to be repaid on demand with interest, such instruments are held to be promissory notes. * * * A note need not contain the words ‘ promise to pay,’ if there are other words of equivalent import.” Parsons on Notes, vol. 1, pp.-33, 34,
In the document before us the signers bind themselves to pay, in one year from its date, to the president, 'directors and company of the Bank of Louisiana, the sum of thirty thousand dollars, money loaned to and received by them.
• The further stipulations, “ to comply with the conditions of the mortgage and also with the obligations of the charter of said bank,” impose no condition and prppose no contingency on which payment is to depend, but recognize accessory obligations contracted or enacted for tlie security of the payment, and tbeir omission would not have impaired the obligation to pay the money.
The instrument sued on being an unconditional engagement- to pay a certain sum of money, cannot be classed among the personal actions which by the Code are prescribed in ten years; nor is it a mortgage, but the written evidence of a debt secured by a mortgage executed before a notary public.
We conclude that the judge a quo did not err in applying the prescription of five years.
Judgment affirmed.
