The New Orleans crescent., 1869-02-25
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THURSDAY MORNING. FEBRUARY Is, 1862.
Supreme Court Decisions.


The following decisions were delivered by this
court yesterday. Chief Justice Ludeling present.
with Associates Howe, Howell and Wyley. Abb
sent: Associate Justice Taliaferro.
BY ASSOCIATE JUSTICE HOWELL.
No. 2040-Bsnk of Louisiana VS.. d. P. Williams
and wife. I'm. f. Meen for plaintiffs and appel
lants Mayo i Spencer for defendants and appel
lee. Appeal from the District Court, parish of
Ceucordia.
The plaintiffs have appealed from judgment
sustaining the plea of prescription of five years
to the following instrument, as non-negotiable
promissory note, to-wit:
STATE OF LOUISIANA,
Parish Of COncordia.
Eve the undersigned, David Percy Williams and
Mistress Elizabeth Matilda Gillespie, his wife, Of
the parish Of Concordia, State of Louisiana, ac-
knowledge ourselves jointly and seyersly indebted
unto the president. directors and company of the
Bank of Louisiana in the full sum of thirty thou.
sand dollars (s30,000), being for loan Of money
this day made to us by said corporation. The
amount of which we confess to have re-
ceiyed, which said sum of $4,000 We do, for our.
selves, our heirs, executors and administrators,
bind ourselves jointly and severally to the said
president, directors and company Of the Bank Of
Louisiana, punctually to paw In one year from this
date, and to comply with all the conditions of the
mortgage this day made by us, and also with the
obligations of the charter of the said bank.
names on this twenty yeighth day of April, A. D.
eighteen hundred and fifty seven.
witnesses: David Percy Williams W. r. c.
Vernon; Elizabeth Matilda Gillespie; A. G. Tyler;
by Henry Basil Shaw, attorney. Paraphed ne va.
rietur.
"CHAs. F. FRENCH, n. ?.
"Vidalia. April 2sth, 1851"
By law "all promlssory notes, whether the same
be negotiable or otherwise. shall be prescribed
in five years" c. c., art. 3505; act 1852, PIP. 90,
sbo,, Era Larf aIa aaI kafr
the maturity of the above instrument and the in
sttution Of this suit. without any legal Interrupt
ticn of the prescription pleaded being shown, the
inquiry presented is, whether or not said instru-
ment is, in contemplation of law. promissory
note The plaintiffs contend that il is bond and
prescribed in ten years.
Without going into an investigation of the ma
ture ard classes of bonds, existing at common
law, il is sufficient to say that in our law, bonds
seem to be written Obligations which are depen-
dent on some contingency and are especially pro-
vided for while the instrument in suit possesses
all the essential attributes of pronssory note,
which are in no legal sense affected - any other
sipulations or recitals embodied in il.
promissory note is defined to be "a written
agreement by one person 10 pay another person
therein named absolutely and Internationally,
certain sum Of money az time specihed thereln.'
(Story on Notes, sec. / Byles on Bills, p. 81
''It must contain legal promise for the certail
payment of q certain sum, and the maker and the
peyee must be designated with sufficient Ger.
tainty. IL TO q receipt for money the
words ito be returned when called for are added;
If the sigBer of an Instrument Acknowledges in 1t
that certsin sum of money is borrowed on the
promise Of payment thereof, or that certain sum
wss received Of A 10 be repaid on demand with
interest, such instruments are held to be promis-
sorry notes. - A note need not contain the
words promise to pay if there are other words of
equivalent import parsons on Notes, vol. l,
pp. SO, 34.) In the document before US the sign.
ers bind themselves TO pay, IN one year from its
date, to the president, directors and company Of
the Bank of Louisiana the sum of $50 GOO, money
loaned to and received by them.
The further stipuatons, 10 comply with the
conditions of the mortgage, and also with the OBJ
legations of the charter of said bank" impose no
condition, and propose no contingency on which
payment is 10 depend, but recognize accessory
obligations contracted or enacted for the security
of the payment, and their omission would not have
paired the obligation to pay the money.
The instrument sued on being an unconditional
engagement TO pay certain sum OF money can.
not be classed among the personal actions which,
by the code, are prescribed 10 ten years nor is it
a mortgage, but the written evidence OF debt Sc
cured by 8 mortgage executed before a notary
We conclude that the Judge a quo dd not err in
applying the prescription OF FIVE yesrs.
Judgment affirmed.
BY ASSOCIATE JUSTICE HOWE.
Nc. 191s-Burgess Bennett ct ais. appelIees, VS..
City of Jefferson ct ais. appellants A. n. Og
cen and Ii. N. Ogden for plaintiffs and inter
vepors. W, r. Mills and H. j. Leovy for defen
dants and appellants. Appeal from the Second
Judicial District Court, parish OF etferson.
On the 22d April, 1867 a number Of front pro.
prietors On St. Charles avenue, in the City of iJef
fersOn, petiuoDed the city for certain flag walks.
and for the paving of tie street with the Nicoson
pavement. list Of the property and its dimen.
sions was annexed, and the city surveyor certified
that the property signed for exceeded one-half OF
all the property fronting on the avenue in the
limits of the city of Jefferson.
On The 24h April the council adopted resolu-
lion or ordinance directing the controller to adiu
dicste contracts for the paving and also for the
Gu bng TO the low West bidder, after advertisement,
stsuch place and time as should be designated by
tie controller. As 10 the paving the resolution
required the work TO be done in strict accordance
with the requirements of the patent.
The controller advertised the sale 10 take place
On the llth Of May. On the same day A. d. Vol
sen eDjoined the city from further proceedings
and the sale was postponed
AZ a meeting Of the council, May 18th, petit
ton was read, signed by property holders on ST.
Charles Avenue, among whom were the owners
of several hundred front feet represented in the
original petition, protesting against the sale of
the contract. This petition was referred to
special committee, who, on the 10th OF May, re-
ported that they had examined the matters COM
pained of, and had Rscertained that majority of
the front proprietors had originally petitiOned for
the Improvement and they therefore reported
against the memorial Of the petitioners. On the
18th of May Mr.. NO1sen dismissed MS SUIT and ln-
uIction, and on the 25th of HAY the controller
sdjuoicsted the contract for paving to Messrs.
Taylor < Lockwood al $3 so per square yard. and
the contract for eurbing to John Rooney al 81 per
running foot.
On the Goth May the uucil by resolution sp.
proved these adjudications, and the mayor was
empowered TO enter into proper contracts by
notaTial act.
On the 3lst May the mayor entered into a con-
tract with Messrs Taylor 4 Lockwood for the
paving Of the street with the NicOlson pavement.
This contract is in conformity TO and embOdies
The ordinance.
On The 2jth June, 1867, the plaintiffs, owners of
property fronting on the avenue and liable under
a provision of this charter hereafter referred TO,
TO be specially assessed for their protection of
twothirds of the costs Of paving and the whole
cost of the curb, fled the petition now before Us,
praying in substance that the ordinance for the
adjudication of the contracts be decreed to be
illegal. null and void that the City of Jefferson
be eDjoined from proceeding to collect from peti.
tioners any portion Of the contract price OF sad
works. by virtue OF any clause in the charter rem.
deripg the petitioners IS front propTetors, seps-
ratey from other owners Of property in the city,
responsible for the cost of making banquettes and
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