1 La. 288 | La. | 1830
delivered the opinion of the court. This action is brought against the defendants as drawers of a bill of exchange on J. &• ML Peet of New-York. The draft
The bill of exchange was dated the 30th of March 1826; and payable sixty days after sight; acceptance was refused by the drawees, J. &. M. Peet. There is no allegation of protest, and notice; but the petition avers, that by reason of the non-acceptance, the plaintiffs have become liable to pay the amount of the draft.
The attorney, appointed by the court to defend the suit, pleaded, first, that no property had been attached, and ^he court was without jurisdiction; second, the general issue; and third, that the plaintiff took the bill after he knew it had been dishonored, and with the knowledge that it was given without consideration .
The verdict was in the following words: 44 We the jury, find for the plaintiff a verdict of thirty-one hundred dollars, with interest from judicial demand; but we find that William T. Prall commenced suit against Win. A. Peet and others, in this court, the 10th of July, 1827. If said suits in law prevent the recovery by the plaintiff, we find for the defendant.”
On this verdict, the court below ordered as follows. “It is ordered that judgment be entered in favour of the plaintiff upon the
From this judgment the defendants have taken the present appeal. The plaintiff has moved to dismiss it on the ground that the defendants by their acquiescence in the judgment below, have deprived themselves of the right of appealing; but should this motion fail, he insists there is no error in the de-creeof the district court, except to his prejudice. The specification of this error is, that the Judge has made the recovery of the plaintiff conditional, on the event of the suit .pending between Prall & Peet & Co. when it should be absolute.
The acquiescence in the judgment, by which the defendants have lost the right to ap-peai5 ¡s supposed to result from their having taken out of the clerk’s office, and procured to be served on the attorney of the plaintiff, a copy of the judgment rendered in the inferior court.
The 567th article of the Code of Practice provides, that the party against whom judgment has been rendered, cannot appeal “if such judgment has been confessed by him, or if he has acquiesced in the same by executing it voluntarily.”
We do not think the act of the defendants in servinS a C(W of tlie judgment on the plaintiff, such an execution of it, as deprives of the right of appeal. The act should jje unequivocal, to authorize a presumption of 17 r r the abandonment of so important a right. And it is not a voluntary execution of the judgment in this case, because no such obligation was imposed on the defendants. It is different from the case of the party, in whose favour judgment is given, proceeding to execute it. The plaintiff who takes the necessary measures for issuing execution, would perhaps be considered as coming within the
It is proved that the plaintiff in this case took the bill from the payees for a debt they owed to him; but it is also proved that at the time the trasfer was made, they were in pri-SOH in New-York, and had applied for the benefit of the insolvent laws of that state. The plaintiff had made opposition to their demand, and charged them with fraud, upon which they proposed to assign to him the note now sued on, if he would withdraw his opposition. He did so; the note was transferred, and the endorsers were discharged.
It is objected that this transaction was null and void by the laws ofNew-York, and that no right could be acquired under it. The plaintiff insists that it is a matter entirely between him and the endorsers*, that the maker of the note has nothing to do with it. Of this opinion was the Judge of the court of the first instance, and so charged the jury. The defendants excepted.
If the act of withdrawing the accusation of fraud, in consequence of receiving the note now sued on, was a relative nullity, the Judge
From an examination of the adjudged cases in the State of New-York, where the transaction took place, it appears, that the courts of that state, consider all agreements, such as that proved in this instance, void ah initio. In the case of Wiggins vs. Bush, the note had passed into the hands of a third person; but the defence was sustained, and the case did not require a positive opinion whether the obligation was void or voidable. The reasoning of the court on the subject matter, and in reference to previous decisions, leaves no doubt in our minds of the legal character of the transaction there. Were we, however, to admit, that the laws or jurisprudenc of New-York have not been sufficiently shown to enable us to pronounce positively on the question, the case of the plaintiff would not be strengthened. We should then be obliged to have recourse to our own laws, and in this state there can be no doubt such a contract
In the state of New-York, there are two statutes in regard to persons unable or unwilling to pay their debts; one is entitled ’“an-act for ¿the relief of debtors, with respect
Objections have been made to the enquiry into the consideration of the endorsement,
We think the contract, under which the plaintiff claims to stand in the right of the payees of the note, void, and that he cannot maintain an action on it.
It is therefore ordered, , adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for defendants with costs in both courts.