By the court:
Slidell, J.
The plaintiff recovered a judgment against the succession of Stephenson, which was confirmed, (with the exception of the decree as to privilege,) upon an appeal by the administrator from the entire judgment. The case is reported in 2d Ann. 526.
While that appeal was pending, the company sold its claim to Waterston. After judgment was confirmed by this court, Waterston instituted proceedings upon the claim thus purchased, against Webb, praying for his dismissal from [167]*167office, and for a personal judgment against him, for the amount of the judgment obtained by the company, and to him, Waterston, transferred. In the progress of that cause, after other pleadings and proceedings, which it is unnecessary to detail, the defendant, Webb, plead a peremptory exception, in which he pleaded that Waterston could not maintain the action, because his purchase of the claim was the purchase of a litigious right, then in litigation in courts wherein said Waterston was then exercising the functions of an attorney at law ; and the exception concluded with a prayer, “ that his, said Waterston’s, demand being null, be dismissed.” The cause being brought to trial upon the exception, it was decreed “that said exception be sustained, and plaintiff’s action dismissed, and that the plaintiff pay the costs.” This decree, upon appeal to this court, was affirmed. See Waterston v. Webb, 4th Ann. 174.
Subsequently, the Gas Light Company filed an opposition to an account rendered by Webb as administrator. In this opposition, the company alleges itself to be a judgment and mortgage creditor, by virtue of the judgment rendered in its favor, and affirmed by this court; and that the administrator had neglected to place its claim upon the tableau of distribution. It prayed that the tableau be amended, by placing its claim therein with its proper rank, and also opposed various charges in the administrator’s account rendered. Thereupon, the administrator filed what his counsel calls “a motion, in the nature of an exception, to strike out said opposition of the Gas Light Company,” on two grounds, which, as stated by the defendant’s counsel in his brief, are in substance as follows: 1st. That the rights of the company having been transferred to Waterston, and being outstanding in him at the time of the final judgment against Waterston, were barred by said judgment, which has the force and effect of the thing adjudged. 2d. The Gas Light Companyy, being in pari delicto with Waterston, in the violation of a prohibitory statute, is left without remedy, and cannot invoke the aid of the law, to relieve itself from the consequences of such violation.
Before considering the objection thus presented, it is proper to observe, that the reinvestiture of the claim in the company is not included in them, and we do not therefore consider ourselves called upon to notice that portion of the defendant’s argument, which turns upon an absence of proof, that Waterston had abandoned, or retransferred to the company, any interest he may have acquired by the transfer to him, or that they had mutually assented to treat it as a nullity. And it is not for the defendant to complain that he has been held by the district judge, and is now held by a strict construction of his own pleadings ; because he has himself, upon technical grounds, excluded evidence showing that the present suit by the bank is in its own behalf; that the sale to Waterston was annulled; and that there is no understanding between the plaintiff and Waterston, that he should participate in what the company may collect. And we are constrained here to add, that the record of this succession, which has been under the administration of Webb nearly thirteen years, contains abundant internal evidence of a disposition to weary out this creditor by delay; and that this course was probably the reason which drove the company to attempt to sell its interest for whatever it could get. The struggles by Webb before was to thwart the claim by delay. The attempt now is to annihilate it.
We shall therefore confine ourselves to the ground taken in the exception, and will proceed to consider them, inverting, however, the order in which they were presented by the defendant.
[168]*168The art. 2422 of the Civil Code, is in these words : “Public officers connected COurts of justice, such as judges, advocates, attorneys, clerks and sheriffs, cannot purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest.
This article is found under the general title of sale, and under the second chapter of that title, which treats “Of persons capable of buying and selling.”
There is another article of the code, which says, whatever is done in violation of a prohibitory law, is void. Art. 12.
The proposition of the appellant, substantially assumes, that the sale of a litigious claim to an attorney at law, practising in the court where the litigation is pending, virtually extinguishes the claim itself. This proposition pushes the penalty of the law, beyond its just and ligitimate consequences.
If the purchase by Waterston, was an utter and absolute nullity, then no title ever passed out of the company to Waterston. But the utter nullity of the sale, surely does not involve the destruction of the thing sold. Such an inference is not only illogical, but monstrous.
But was it a relative nullity ? We think it was; that is to say, the debtor could set up the nullity, and avail himself of it, in resisting an action by tho purchaser, as being a purchase reprobated by the law.
The thing sold was a litigious right. The law said to this purchaser, you cannot purchase it. If you attempt to do so, you do it under penalty of nullity. Nullity of what ? of the purchase. The law avoids, at the instance of the debtor, wbat is done in contravention of the prohibition. What was done in contravention? the purchase of a litigious right. It is the purchase of the litigious right, which is avoided, not the litigious right itself. The contract of Stephenson with the company, was not illegal or void. The judgment rendered in favor of the company against his succession, was not illegal or void. But it was against the law for Waterston to buy that claim; and Waterston, having made an illegal purchase, was not permitted to enforce the claim so purchased. The door of justice was closed against him, not because the claim he had bought was void, but because he was forbidden to buy it.
It is a sound principle, that the annulling of a right, should result only from a clear expression of the legislative will in the particular case, enunciated in the law, and should not be supplied by the court.
Let us see what has been said by juris consults, upon a similar provision of the Napoleon Code.
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By the court:
Slidell, J.
The plaintiff recovered a judgment against the succession of Stephenson, which was confirmed, (with the exception of the decree as to privilege,) upon an appeal by the administrator from the entire judgment. The case is reported in 2d Ann. 526.
While that appeal was pending, the company sold its claim to Waterston. After judgment was confirmed by this court, Waterston instituted proceedings upon the claim thus purchased, against Webb, praying for his dismissal from [167]*167office, and for a personal judgment against him, for the amount of the judgment obtained by the company, and to him, Waterston, transferred. In the progress of that cause, after other pleadings and proceedings, which it is unnecessary to detail, the defendant, Webb, plead a peremptory exception, in which he pleaded that Waterston could not maintain the action, because his purchase of the claim was the purchase of a litigious right, then in litigation in courts wherein said Waterston was then exercising the functions of an attorney at law ; and the exception concluded with a prayer, “ that his, said Waterston’s, demand being null, be dismissed.” The cause being brought to trial upon the exception, it was decreed “that said exception be sustained, and plaintiff’s action dismissed, and that the plaintiff pay the costs.” This decree, upon appeal to this court, was affirmed. See Waterston v. Webb, 4th Ann. 174.
Subsequently, the Gas Light Company filed an opposition to an account rendered by Webb as administrator. In this opposition, the company alleges itself to be a judgment and mortgage creditor, by virtue of the judgment rendered in its favor, and affirmed by this court; and that the administrator had neglected to place its claim upon the tableau of distribution. It prayed that the tableau be amended, by placing its claim therein with its proper rank, and also opposed various charges in the administrator’s account rendered. Thereupon, the administrator filed what his counsel calls “a motion, in the nature of an exception, to strike out said opposition of the Gas Light Company,” on two grounds, which, as stated by the defendant’s counsel in his brief, are in substance as follows: 1st. That the rights of the company having been transferred to Waterston, and being outstanding in him at the time of the final judgment against Waterston, were barred by said judgment, which has the force and effect of the thing adjudged. 2d. The Gas Light Companyy, being in pari delicto with Waterston, in the violation of a prohibitory statute, is left without remedy, and cannot invoke the aid of the law, to relieve itself from the consequences of such violation.
Before considering the objection thus presented, it is proper to observe, that the reinvestiture of the claim in the company is not included in them, and we do not therefore consider ourselves called upon to notice that portion of the defendant’s argument, which turns upon an absence of proof, that Waterston had abandoned, or retransferred to the company, any interest he may have acquired by the transfer to him, or that they had mutually assented to treat it as a nullity. And it is not for the defendant to complain that he has been held by the district judge, and is now held by a strict construction of his own pleadings ; because he has himself, upon technical grounds, excluded evidence showing that the present suit by the bank is in its own behalf; that the sale to Waterston was annulled; and that there is no understanding between the plaintiff and Waterston, that he should participate in what the company may collect. And we are constrained here to add, that the record of this succession, which has been under the administration of Webb nearly thirteen years, contains abundant internal evidence of a disposition to weary out this creditor by delay; and that this course was probably the reason which drove the company to attempt to sell its interest for whatever it could get. The struggles by Webb before was to thwart the claim by delay. The attempt now is to annihilate it.
We shall therefore confine ourselves to the ground taken in the exception, and will proceed to consider them, inverting, however, the order in which they were presented by the defendant.
[168]*168The art. 2422 of the Civil Code, is in these words : “Public officers connected COurts of justice, such as judges, advocates, attorneys, clerks and sheriffs, cannot purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest.
This article is found under the general title of sale, and under the second chapter of that title, which treats “Of persons capable of buying and selling.”
There is another article of the code, which says, whatever is done in violation of a prohibitory law, is void. Art. 12.
The proposition of the appellant, substantially assumes, that the sale of a litigious claim to an attorney at law, practising in the court where the litigation is pending, virtually extinguishes the claim itself. This proposition pushes the penalty of the law, beyond its just and ligitimate consequences.
If the purchase by Waterston, was an utter and absolute nullity, then no title ever passed out of the company to Waterston. But the utter nullity of the sale, surely does not involve the destruction of the thing sold. Such an inference is not only illogical, but monstrous.
But was it a relative nullity ? We think it was; that is to say, the debtor could set up the nullity, and avail himself of it, in resisting an action by tho purchaser, as being a purchase reprobated by the law.
The thing sold was a litigious right. The law said to this purchaser, you cannot purchase it. If you attempt to do so, you do it under penalty of nullity. Nullity of what ? of the purchase. The law avoids, at the instance of the debtor, wbat is done in contravention of the prohibition. What was done in contravention? the purchase of a litigious right. It is the purchase of the litigious right, which is avoided, not the litigious right itself. The contract of Stephenson with the company, was not illegal or void. The judgment rendered in favor of the company against his succession, was not illegal or void. But it was against the law for Waterston to buy that claim; and Waterston, having made an illegal purchase, was not permitted to enforce the claim so purchased. The door of justice was closed against him, not because the claim he had bought was void, but because he was forbidden to buy it.
It is a sound principle, that the annulling of a right, should result only from a clear expression of the legislative will in the particular case, enunciated in the law, and should not be supplied by the court.
Let us see what has been said by juris consults, upon a similar provision of the Napoleon Code.
The 1597th article of that code, is in these words: Les juges, leurs suppléants, les magistrals remplissant le ministére public, les greffiers, huissiers, avoués, défenseurs, officieux et notaires, ne peuvent devenir cessionnaires, des procés, droits et actions litigieux qui sont déla compétence du tribunal dans le ressort, du quel ils exercent leurs fonctions á peine de nullité, et des dépens, dommages et intéréts.
Upon this article, Troplong, with both eloquence and force, comments as follows : De tels pactes sont en effet honteux et contraires aux mceurs. Ils ne font qu’attiser 1’esprit de tracassereé et de litige; ils transformen} ¡’honorable ministere de defenseur ou d’officier ministerial en un trade sordide, en une vile speculation, sur la position des pauvres plaideurs; ils sont une source de vexations pour les hommes timides, qui se voient aux prises avec des légistes enhardis par l’habitude des luttes judiciaires, animés par l’intérét personnel, et arnés de tous les piége3 de la chicane.
[169]*169Remarquez toutefois que le droit litigieux ne subsiste pas moins, et que le débiteur ne peut se prévaloir de ce trafic deshonnéte pour se prétendre libéré. Aucune disposition de loi ne déclare la créanee éteinte. Seulement, la cession est nulle et le débiteur peut en requérir la nullité pour se soustraire aux pour-suites pleines d’ápreté d’un cessionnaire redoutable, et pour demander d’étre mis en face de son véritable créancier. Troplong’s Yente, No. 196.
Duranton also says: S’ils l’avaient entendu ainsi, ils l’auraient dit expressément, puisque l’annulation d’un droit ne doit résulter que d’une disposition formelle de la loi, les nullités ne pouvant étre suppléies par le juge. D’oú nous concluons que le droit n’est pas éteint par la nullité de la cession. Duranton lib. 3, tit. 6, No. 145.
The plea of res judicata is untenable/ The decree in Waterston v. Webb, decided that he, being a purchaser of a litigious right, could not maintain an action to enforce it. It shut the door of justice against him, by decreeing in substance, that his purchase was null as to the defendant, but it did not adjudge the nullity of the right so purchased. This suit is brought by another party, and involves other questions, than those decided in that cause. The question there was, shall Waterston be permitted to sue 1 The question here is, is the original debt avoided 1
The authority of the thing adjudged, takes place only with respect to what was the object of the judgment (á l’égard de ce qui a fait l’objet du jugement). The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them, against such other in the same quality. Civil Code, art. 2265.
The judgment of the district court is affirmed; the costs of appeal to be paid by the appellant.