The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-04-06
Supreme Court Decisions.
= The Following decisions were delivered by shis
court yesterday !; Q full bench present.

court yesterday o full bench present.
By ASSOCIATE yusrICB HOWELL.
= No. s26--H. w. Livingston ". Bessie 3. Gsust'
sen, Rdministrstrix- from Second District
plaintiff and appellant; Roselius Phillips for
This suit is brought against the legal representa-.
tives Of John X. Elgee. on q note made BY him az
and indorsed BY ". 4 D. Urquhsrt. '7s-1'
The defendant pleaded the peremptofy excep.
ton that cause OF action 10 set out against Egee
individually, ~ be signed said note In his fduciary
capacity and plaintiff could only sue the estate Of
Kelso. In support Of this exception, which was
maintained By the judge a quo, defendants coun
sci quote the cases Of Gilles W. Hsirs Of Racha,
R., 27s. and Bank Of Louisiana W. Dejean, Ia r.,
16. -. .liI 49,
In these cases the representation Of the sue.
cessiops were declared not 10 be personally liable
on notes signed BY them In their hduciaEy capacI
Dssics 70 I. E;s .G0wn tn ta,s saasy
the knowledge OF the plaintnh amply given 90.
knowledgments In the favor OF notes Of defend.
anita existiDg At the opening Of repre-
U
or other administrator, By making or indor.ing
note 10 that capacity, cannot thereby bind the es-
tate, but win make himself responsible for ito
amount" that he cannot, In any transscsion in
which he pretsnds to act ~ such. create any la.
bilisy on the estate, or change the nature Of ito
obligations or increase its responsibility with re-.
gard TO i,s outsisndins debt and, II he do 90, he
tied doctrine In our jurisprudence on this subject
(see N. s. l5I, . L. 1856. i R. 1l9, IL A. ~
And the question 10, must the holder Of note
made BY an executor allegs that the latter ex-
ceeded his powers and functions, In order to
maintain an action against him personally (, We
think not. 1he powers Of executors and admins
traitors are conferred BY Law, and among them IL
4. not the power to make aud indorse notes. When,
therefore. they assume or exercise such power,
the presumption OF law ID against thsm, and the
burden 10 on them to plead and show In defense
that they are not individually liable.
In the case Of Russell 4 Barstow W. Cash ct. al,
2 L. 1856. which waas suit on draft drawn BY
the defendant Cash a. o. ~ executor Of Moses
Kirkland, deceased" the charge OF the dlstrict
judge to the jury "that the obligations OF the
petition vOq a not import an action against hs
charged with having improperly and falsely
described himself 40 executor after his functions
had ceased" was not sustained and the court
the estate BY drsfts. bills OF exchange, or notes,
the suit against him ~ representative Of the es.
tate cannot be maintained. 50 The
defendant IL, however, responsible on the draft
seuor Of Noses KrtsnS added to hi. U :snst.re
can be considered IN no other Hight but a. words
Of description, which neithsr add to nor diminish
the individual and personal responsibility Of the
party using them" and judgment was rendered
against Cash individually although he Was sued
Z only In HE representative capacity.
IN Flower ct. al. Va. Swift, N. 8. 45l, Il said
!" As the executor cannot bind the estate by
endorsements, IL follows that the liability resulting
from those he makes. 10 personal"
Mr.. Psrsons, In his works ON notes and bills,
Vol. j, p. lei, maintains the same doctrine and
says: II sn administrator or executor make, In.
sonally liable, even II he adds to HE own name
the name Of his office, signing note for example,
A as EXECUTOR Of B. for this will be deemed only
apart Of kis description. or VIII be rejected as
Whenever. therefore, negotiable paper is made
or Endorsed by . party % executor, the holder 10
not boupdto consider It . mere acknowledgment
of debt 81 the estate, and required to wait for
payment ID the ordinary course Of administration,
but he may instituts his action against such party
individually, leaving the latter the right. under
certain circumstances, to set up defense that he
il not personally responsible.
his, therefore, ordered that the judgmen, ap-
pealed from be reversed, the exception Of the de-
PENDANT overruled, and this cause remsnded TO be
proceeded in according to law. Costs Of appeal
to be paid BY defendant aud appellee. s1r
BIZ ASSOCIATE JUSTICE HOWELL.
No. l467--J. Arrowsmith Va. E. II. Darrell. Mrs.
District Court Of New Orleans. p. 5oue, L.
Chsrvet, Jas. @. Walker, for appellee. Berault,
johnson & Denis for appellant.
The only question presented for our decision 10
whether or not o dsvolutive appeal suspends or
interrupts the prescription OF judgment under
the act Of 1858, p. $50.
By the letter Of the statute the question must be
answered IN the negative. Is provides that "hsre-
after Gil Judgments for money, whether rendered
within CT without the Stats, shall be prescribed by
the lapse OF ten years nom the rendition Of said
Judgment, provided, however, that any party In
terested in any judgment may have the same re-
vived at any time before it ii prescribed By hsv-
ing citation issued according to law to the de-
PENDANT or his representative from the court
which rendered the judgment, unless the defend.
ant shows good cause Why the Judgment should
not be revived"
The appellant. Mrs. De Pontalba, subrogatsd to
the judgment against plaintiff, contends that the
ten years only commenced running on the date Of
the rendition Of the judgment BY the Supreme
Court, affirming the judgment OF the lower court
on the devolutivs appeal which was pending about
four years. She bases her conclusion on the
theory that the word Judgment" in the statute is
judgment putting an end to all further contssta-
tion between the parties, and having the force OF
the tbirg sdjudgsd, which 10 said Of that which
bas been decided BY final Judgment from which
there can be no appeal, either because the appeal
did not lie or because the time fixed BY law for
appealing 10 elapsed, or because il has been con.
frmed on appeal 70. &c. 3522. 81 And she
suggests the anomalous CONSEQUENCE of judg.
ment bscoming extnguished BY prescription be-
fore final determination Of the rights Of the lt
gatirg parties hss been reached In the appellate
cours and the whole subject matter Vanishing into
thin air and leaving not trace behind. She
further urges that the doctrine Of oil the prsscrp
tons hbeTdndi cdusd rests on sprescripton Of
payment arising out Of the silence OF the creditor
during the appointed time &c. G. 3422. 3l9l), and
that such presumption and silence,cannot be said
to exist while an appeal 10 undetermined.
In reply 70 all this, however forcible Il may sp-
pear, We have only 70 say that when Law 10 clear
and free from all ambiguity the letter Of it IL moi
its spirit 20. O., 49,, unless, possibly, following
the letter may lead 10 an sbsurdity. The conse
quences suggested BY appellant a. possible do NOT
ssppssr to rs any more absurd than the assumption
hat - tr1~ I'LL L. = =