WESTERN DIST. The court ordered the motion for a new trial to be August, 1834. overruled; and the judgment to be so amended, as to stand REYNOLDS ET AL against Yarborough for five thousand dollars, with interest and costs. From this judgment, so far as it relates to Yarborough, the plaintiffs appealed.

V8.

YARBOROUGH.

In his answer to the appeal, Yarborough alleges error, on the ground that he was not put in default, and consequently, no legal judgment could be rendered against him, and for which he prays a reversal.

Turner, for the plaintiffs, contended that the defendant could not have the judgment reversed, because he did not appeal from it; and also on the ground of having lost the opportunity of doing so, by not filing his answer to the appeal, in the time prescribed by law.

3. The appellee is required to file his answer, on the return day of the appeal, or within three days thereafter, which he failed to do. Code of Practice, 591, 896.

3. The judgment must be reversed, because the obligation of the defendant, binds him for the full amount of the penalty of seven thousand dollars, and for any amount under that sum, which the plaintiffs in pursuance of their agreement, had advanced, disbursed, or became in any way liable for, to Bostwick. This sum is proved to be five thousand six hundred and ninety-five dollars seventy-four cents, exclusive of one hundred and forty-four dollars and fifty cents, commissions, &c.

4. The District Court had no right to change the judgment against the plaintiffs, and in favor of the defendants, after it had once been rendered. Code of Practice, 517, 518.

5. The defendant is not entitled to notice on this principle. A person not a party to a bill, cannot complain of the want of notice, unless he can show that it has done him a prejudice, Bailey on Bills, 185, note 114. Chitty on Bills, 204.

Saunders, for the defendant.

Bullard, J., delivered the opinion of the court.

The plaintiffs sue on a bond signed by John Bostwick as principal, and the present appellee, Yarborough as security, by which they engage to pay the plaintiffs seven thousand dollars. In the condition of the bond, it is recited that, "whereas the said Reynolds, Byrne & Co., have agreed to furnish and advance sums of money to the said John Bostwick, and to endorse notes for him, and to accept his bills, &c., not exceeding five thousand dollars, provided that the said Bostwick would obtain the said Stephen Yarborough to consent and agree to become his security, jointly and severally with him, binding themselves to secure and save harmless, the said Reynolds, Byrne & Co., against any balance, that at the end of twelve months may be due to them, to the extent of five thousand dollars." The parties then agree, that if at the expiration of the year, there should be no balance due, or if Bostwick shall pay any such balance or release the plaintiffs from their liabilities, then the obligation to be void; else to remain in full force and virtue.

The plaintiffs allege, that at the expiration of the year, there was a balance due them by Bostwick of five thousand six hundred eighty-six dollars and eighty-five cents, and they pray a judgment in solido, either for the penal sum of seven thousand dollars, or the aforesaid balance in the alternative.

Judgment was rendered against Bostwick for the whole balance due, with interest and costs. The parties appear to suppose, that the judgment below was only for five thousand dollars against the security; but on examining the record, it appears that although, after rendering the judgment against both for the whole amount, the judge, before signing it, directed it to be amended, so as to restrain the liability of the security to five thousand dollars; yet probably by a clerical mistake the judgment was ultimately signed, and so appears before this court, against both parties in solido, for the whole balance, with interest at ten per cent. and costs.

The plaintiffs appealed from so much of the judgment as relates to the defendant Yarborough, and insist before this

WESTERN DIST. Court, that the defendant is bound for the seven thousand August, 1834. dollars, or any less sum, which the plaintiffs had advanced REYNOLDS ET AL. under the agreement.

V8. YARBOROUGH.

Where parties

The appellee answers, that there is no error to the prejudice of the appellant, but he prays that the judgment may enter into an be reversed, principally on the ground, that he had not been taining a penalty put legally in delay, before the inception of the suit.

obligation con

of seven thou

sand dollars, for

ment of a sum

not

five thousand

failure of the

will only

The first question, therefore, is, whether the liability of the faithful pay the security was limited to the sum of five thousand dollars exceeding by the contract. It seems to us clear, that the plaintiffs did dollars at a par- not obligate themselves to advance more than that sum, and ticular time, on that the security did not engage to guarantee the principal principal to com- for more. Indeed it is formally declared, that he "engages ply, the surety be to secure and save harmless the said Reynolds, Byrne & Co., bound for the against any balance that at the expiration of the year, may principal sum stipulated to be be due to them to the extent of five thousand dollars.” But it is paid, and not the penalty. contended, that the plaintiffs are entitled to recover the whole The penal clause in the seven thousand dollars. This appears to us to be an obligaobligation, is the tion with a penal clause. The primary obligation of the compensation for the damages the security was to pay the balance which might be due, not by the non-exe- exceeding five thousand dollars, and the penalty was the sum cution of the of seven thousand dollars. La. Code, art. 2113.

creditor sustains

principal obliga

tion.

But damages

"The penal clause is the compensation for the damages due for the delay which the creditor sustains by the non-execution of the in the perform principal obligation." La. Code, art. 2121.

ance of an obli

gation to pay money, are called interest.

Conventional

ty, cannot exceed

"The damages due for delay in the performance of an obligation to pay money, are called interest." La. Code, art. 1929.

It is further provided by the Code, that conventional interest interest whether cannot exceed ten per cent. When the parties are silent as stipulated in eo nomine or in the to the interest or damages for the non-payment of money, shape of a penal- the law fixes it at five per cent. in contracts with individuals, and in those with banks, at the rate established by their charters. But conventional interest, whether stipulated in eo nomine or in the shape of a penalty, cannot exceed ten per cent.

ten per cent.

This brings us to examine the defence set up by the appellee, that the plaintiffs are not entitled to recover any

thing in this suit, because he had not been put legally in WESTERN DIST. default. August, 1834.

vs. YARBOROUGH.

In an action to recover damages for the non-performance of REYNOLDS ET AL. a contract, proof of a putting of the party in morâ, by a special demand, was holden by this court, Erwin vs. Fenwick, to be a prerequisite to the damages. 6 Martin, N. S. 229.

in the case of
recovery
of any

In an action to recover damages for the non-performance of a

contract, proof

The obligor may be put in default in three different ways: of putting the 1st. By the terms of the contract, when it is specially agreed, party in mora by a special dethat the party failing to comply, shall be deemed to be in mand, must be default, by the mere act of his failure. 2d. By the act of the party; and, 3d. By the operation of law.

made.

In an action to recover the prin

gation in a con

Among the acts of the party, by which the obligor may be put in default, is a demand made by the commencement cipal sum, and of a suit; that is, as we understand it, a suit to enforce the to enforce the performance of principal obligation, and not one merely for damages for its the primary oblinon-performance. If then, this suit is instituted to recover the principal sum, to enforce the performance of the primary obligation of the contract, or in lieu thereof to recover the stipulated penalty, the commencement of the suit itself, puts to damages. the defendant in default, in relation to damages.

According to these principles, if the judgment had been signed as it was directed to be amended, it would have been fully sustained by the law and the evidence; but as this judgment comes before us in such a form, as we think it ought not to stand, it must be reversed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, as relates to the defendant Yarborough, be reversed, and proceeding to render such judgment as ought, in our opinion, to have been given below, it is further adjudged and decreed, that the plaintiffs recover of the said defendant Yarborough, in solido, with his co-defendant, the sum of five thousand dollars, with costs of the District Court, and that the costs of the appeal be borne by the appellants.

tract, the com

mencement of suit, puts the defendant in de

fault in relation

WESTERN DIST.
August, 1834.

FLOWER

vs.

O'CONNER.

DAVID FLOWER vs. RACHEL O'CONNER.

APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE
THEREOF PRESIDING.

On the death of a partner leaving several surviving ones, neither has the
right of sueing alone as surviving partner, nor has one the right to sue as
surviving partner, for the use of them both, when there are two surviving.
In all commercial partnerships, the surviving partner, in order to receive
the portion of the deceased partner, and hold it subject to the payment
of the partnership debts, must make application to the Court of Probates,
have such portion ascertained and valued, and give bond with security.
A surviving partner does not possess the right, until he is authorised by
the Court of Probates, to sue for, or receive partnership debts.

Pleas or exceptions that are not declinatory, need not be pleaded in limine litis.

This suit was instituted by David Flower, as surviving partner of the late commercial firm of D. B. Finley & Co., in New-Orleans, to recover from the defendant as the heir of her deceased son, Stephen Bell, the sum of six thousand three hundred and thirty-six dollars eighty-six cents. The suit is brought by D. Flower, as the surviving partner, &c., for the use of W. & D. Flower, on a promissory note executed by the firm of Bell & Finley, in favor of D. B. Finley & Co., payable the tenth of March, 1821, for four thousand nine hundred and forty-four dollars eighty-nine cents, and on the balance of an account current in favor of D. B. Finley, and due by said firm of Bell & Finley, for one thousand three hundred eightysix dollars and ninety-seven cents. The plaintiff alleges that Finley is dead, and his estate is insolvent ; and that Bell has since died, and the defendant has accepted his succession with the benefit of inventory, and thereby rendered herself liable to pay the debts thereof. He prays judgment against the defendant for the aggregate sum of six thousand three hundred and thirty-six dollars eighty-six cents, interest and

costs.