Young v. Crossgrove

4 La. Ann. 233

• Court: Supreme Court of Louisiana
• Decided: April 15, 1849
• Status: Published

Opinion

The judgment of the court ('Ring-, J. absent,) was pronounced by

SniDEm, J.

This suit is brought upon a note by which Harrison, Gibson Sf Harris, bound themselves in solido. It is dated and payable in Natchez, and fell due on the 5th September, 1839. This suit was brought, and citation was served, in November, 1846.

The defendant relies on three prescriptions : I. The. prescription of six year® by the laws of Mississippi. This cannot avail him. Gibson was, before the execution of the note, and so continued until his death, a citizen and resident of Louisiana; his succession was opened here, and all his available property was situated here. Under these circumstances there can be no reason for making this case an exception to the general rule, that the law of the forum "regulates prescription.

II. It is urged that, by the laws of Mississippi, all claims against the successions of a deceased person not presented within eighteen months after publication of notice for that purpose, are declared to be forever barred, and the estate of the testator or intestator discharged. It was very forcibly argued, on the part of the* plaintiff, that Gibson's succession was opened in Louisiana, the State of his dormicil, and in which all of his available property was situated; that the administration subsequently opened in Mississippi was merely auxilliary, and for' the purpose of enabling the administrator to prosecute a chose in action there, acknowledged in the petition for letters to be of equivocal value,. the pursuit of which was subsequently abandoned, so that not a dollar was ever realized there. Under such circumstances, it would have Been a vain thing on the part of the creditor to take proceedings there; and it would seem that his rights against the principal administration in this State-should not be affected by his inaction in Mississippi. But however this may be; is is not satisfactorily proved that proper publication was made in Mississippi according to the Requisitions of her statutes, and there is, therefore, no legal basis for tins' Branch of the defence.

HI. It is said that the claim, is barred by the prescription of five years, und'er article 3505 of our Code. That prescription is applicable to negotiable instruments, and we do not consider the note in question as falling under that denomination. The note is payable to the commissioners of the sinking fund, and not to them or their order. The defendant, however, contends that the negotiable character of.' the instrument is- demonstrated by the subsequent expressions, “ payable and negotiable■ at the Planters’ Bank of the State of Mississippi, at Natchez.” In this view we do not concur; the expressions, we think, point to the place of payment. They are very common in ordinary notes, which are' promissory notes in the proper sense, by being made payable to order. The very frequent use of this phrase- in instruments, nogotiable by their tenor, shows- that the words in question are not commonly used for the purpose of designating the character of the obligation. In that sense they would, as ordinarily ¿used, be surplusage.

Besides the word, if construed in the sense contended for, would presont án anomalous and unusal contract—“negotiable at the Planters’ Bank”—that is to say—if you endorse it at the Planters’ Bank, the party tailing will be an endorsee, but if you endorse it any where else, he will be a mere transferee.

The proper meaning of the expression is best ascertained by the application of the rule nosaitur a sociis, and, being joined to the word payable, it is to be considered as pointing to the place of payment, and perhaps to the sort of currency usual at the place.

For the purpose of pescription we have construed the character of the instrument with reference to our own jurisprudence. See the case of Lacoste v. Benton, 3 An. p. 220. Judgment affirmed.