White v. M'Quillan, 12 La. 530

White v. M'Quillan

12 La. 530 | La. | 1838

Bullard, J.,

delivered the opinion of the court.

The plaintiff sues upon sundry promissory notes, secured by mortgage on a number of slaves. The defence mainly relied on was prescription. There was judgment for the plaintiff, and the defendant appealed.

The notes bear date in 1818; were made in the state of Mississippi, and payable there, on the 13th June of the four following years, 1820, 1821, 1822, and 1823. Much more than five years had, therefore, elapsed from their maturity, before suit was brought. But the plaintiff contends that the repeated recognitions of the debt by the defendant, and his promises to pay, particularly by his letters in the summer of 1829, less than five years before the inception of this suit, precludes the defendant from availing himself of the plea. Taking the whole correspondence together, between the parties, we do not doubt that the defendant acknowledged the debt, or right of the plaintiff, and substantially promised to pay. It is true, in his letters he speaks of settling with the plaintiff, but we know of no other way of settling a note than paying it. But it is contended by the defendant, that the date of his last letter was more than five years before service of citation in this case, in 1834; that a previous imperfect service of citation, in 1832, did not interrupt the prescription. It appears from the record, that the petition was filed in 1832, and the sheriff returned, that he had served on the defendant in person, the citation, together with a copy of the petition. Some days after, he appears to have added to his return a memorandum that the copy of petition *534was not certified by the clerk under seal. It does not appear that the amendment ivas permitted by the court. No proceedings took place until two years afterwards, when a new service was made. It appears to us the court did not err in overruling the exception. The code declares, that prescription is interrupted when the possessor has been cited to aPPear before a court of justice on account of the property or possession ; article 3434. The same rule applies to the prescription liberancli caus&. It is interrupted, although the tribunal be without jurisdiction. The subsequent article speaks of citation to the debtor. We are of opinion that the service of the citation, together with a copy of the petitiou, although ^ may not aPPear that the copy was duly certified by the clerk, is a sufficient judicial demand to interrupt prescription.

The citation service e'of1'the citation, togeth-of the petition^ appeaif'that 'the copy was notou-the "ci'erkl is^ cidTemancT'to interrupt pre- avis-till nature Of damages for ihe non-perform-anee of a con-neyiimfiTpi-el sumed to have been m ihe eon-tempiation of the parties at the tíme of contract-thereforeb™”o-verned by 8>e law in force at that time, which hyn"any6 snbse-queiR change in a allowing 'interest at s per cent. on promissory notes: Held, that tó 'notelelcc?'/-ed before ns pas-not paid, and due at the time «fits passage.

But it is urged by the counsel for the appellant, that the court errecl allowing interest at eight per cent., from the maturity of the notes, according to the statute of Mississippi, ... . „ . , , . which was not, in force when the notes were made, nor when the two first fell due.

We are not jaformecl what was the law of that state on . . , the subject at the date of the notes, but interest arising ex . * t r ,¶ ¿ ¿ wiora is in the nature of damages for the non-performance of a contract to PaY money, and is presumed to have been in the contemplation of the parties at the time of contracting. , . M1 - , n Damages upon protested bills of exchange, against drawers and endorsers, although not expressed on the bills, must be governed by the law in force at the time the bills are drawn, and could not be varied by any subsequent changes in the ^w. We cannot distinguish between such a case and the one now before the court. At the maturity of the notes, the . • holder was entitled to his action. I hat action must be conducted according to the law then in force. But the amount which he might be entitled to recover depends upon the contract, and the law in reference to which it was entered into, It does not form a part of the remedy, and, m our opinion, rate 0{ interest arising ex morct depends on the law existing at the time of the contract.

The original amount of the debt was six thousand four *535hundred and fifty-three dollars and five cents, of which there appears to have been paid two thousand three hundred and ten dollars, leaving a balance of four thousand one hundred and forty-three dollars and five cents, which the plaintiff is entitled to recover with interest after judicial demand.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and proceeding to render such judgment as ought, in our opinion, to have been given below, it is further ordered and adjudged, that the plaintiff recover of the defendant four thousand one hundred and forty-three dollars and five cents, with interest, at five per cent., from the 13th November, 1832, until paid, with costs, in the District Court; and it is further ordered, that the mortgaged slaves be seized and sold, to satisfy this judgment, and that the plaintiff pay the costs of this appeal.