Barbarin v. Daniels

7 La. 479 | La. | 1834

Bullard, J.,

delivered the opinion of the court.

The appellant assigns for errors apparent on the face of the record, 1st. That it appears by the note itself that it had been transferred by the endorsement of the appellee, and that the Bank of Louisiana was the holder at the time of the protest; and, 2d. In granting the order of seizure for the payment of conventional interest, not secured by the mortgage recited in the notarial acts on which said order is founded; or, at all events, in not restraining the interest to the space of time during which it was promised to be paid.

I. The endorsement is in blank, and the original, payee is in possession of the note. It is true, the protest states, that the cashier of the Bank of Louisiana was at that time holder for the bank. But this court has decided, in several cases, that when the payee retains possession, and the endorsement of his own name on the note is in blank, no proof of re-transfer is necessary to enable the holder to recover. 7 Martin, N. S. 255. 2 La. Reports, 193.

II. The note referred to in the act of mortgage, and identified with it by the certificate of the notary, stipulates for an interest at the rate of ten per pent, per annum, and is made payable eighty-five days after date. The mortgage, without reciting the interest, refers to and secures the payment of the note, which is evidence of the principal obligation. The mortgage, therefore, covers the stipulated interest. But it- is contended, that the interest is not to run after the maturity of the note, and that the judge erred in issuing the order of seizure for interest, until final payment. We think the judge did not err. Article 1931 of the Louisiana Code, provides, that “in contracts stipulating a conventional interest, it is due, without any demand, from the time stipulated for its commencement until the principal is paid.”

_Where a note stipulated for ten per cent, perannuminlerest,and was made payable- eighty-five days after date: Held, that the interesti^un from the date of the note until payment, without any demand at its maturity. The Supreme Court, in its disci’etion, will refuse damages as for a irivolous appeal, even when the grounds of defence are untenable, and when the principles upon which they rest, have been settled by previous adjudications.

The appellee in his answer, prays for damages of ten percent. as for a frivolous appeal. The grounds upon which the appellant seeks relief in this court are, in our opinion, untenable; that which relates to the endorsement having been adjudicated upon by this court, in several cases, and, as relates to interest until final payment, the principle is settled in the most unequivocal manner by the article of the Code above referred to. But we do not consider this one of the cases which require us to inflict a severe penalty on the appellant.

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