[Hepp et al. v. Ducros et al.]

price of the thing sold producing fruits or any other income. Civil Code, 360, art. 84.

Independent then of the possibility and probability of natural increase in a gang of slaves of different sexes, the hire of their labor, and consequent income to the holder, or profits derived from it when directed by the owner himself, would authorise a demand, on the part of the seller, of interest on the price after it becomes due.

We have been unable to discover any error in the judgment of the district court.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.

Hennen, for the plaintiff.

De Armas, for the defendants.

EASTERN DISTRICT, JANUARY TERM, 1825.

Herman v. Sprigg.

III, N. S. 190.

If the sheriff, in copying a citation, insert words not in the original, it will not be void on that account.

Contracts in which usury intervenes are void, but the lender may recover back the money loaned.

Subsequent laws do not operate a repeal by containing provisions different from former ones: they must be contrary to them.

The borrower is not obliged to pay legal or other interest on money received on a usurious

contract.

FIRST District.

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

This is an action commenced in the usual form, by the plaintiff, endorsee of a promissory note, against the defendant, maker thereof. The instrument is negotiable, and was made payable to one William Flood, who since the execution of it, is deceased, and by whom it was endorsed to the petitioner.

The defendant pleads,

1. An exception to the process of citation, because a copy of it was not served according to law.

2. A general denial of all the allegations in the petition.

3. That the petitioner obtained the note, on which this suit has been commenced, by unfair means, viz: by an usurious contract— that the defendant never received any valuable consideration for it,

[Herman v. Sprigg.]

the same having been executed for the accommodation of the payee. That the plaintiff had already commenced suit against the endorser's estate, and that it is to his succession alone resort can be had for pay

ment.

The first question for our decision on these pleadings, is the legality of the service of citation.

The illegality is said to arise from a variance between the original and the copy, and it consists in this: That in the original the defendant is cited to appear "at the office of the sheriff of the parish of East Baton Rouge, and comply with the prayer of the petition, or file his answer in the office of the clerk of the third district court, holden in and for the parish aforesaid, at the town of Baton Rouge." That the copy cites him to file his answer "in the office of the clerk of the district court holden for the parish at the town of Baton Rouge," leaving out the word "aforesaid," which in the original refers to the parish of East Baton Rouge; and that there is also a variance in substituting the word "at," for those of "in" and "for."

This objection is purely technical, and goes to matter of form alone. For we apprehend, the defendant had little difficulty from the copy served, in knowing where he was cited to, and what he was required to do. There being but one district court appointed by law to be held at the town of Baton Rouge, and that being the court which sits for the parish in which the village is situated; a notification to file an answer with the clerk of the district court sitting in that town, could not be misunderstood to be a citation to file it with the clerk of the district court for that parish; because there was only one court of that style and description, which held its sessions there. Technical, however, as the objection is, the law requires a copy of the citation to be served on the defendant, and we are not prepared to say what effect a variance between that copy, and the original would have, were it not that on a comparison of the process here issued, with the form prescribed by the act of the legislature, we find that the original contained more than that act prescribes, and that the copy exactly pursues it.

The form directed for citations, by the act establishing the superior court, which form has been preserved by subsequent statutes for the district court, requires the defendant " to file his answer in writing in the office of the clerk of the superior court at in days after the service." The original in this case went further, and mentioned for which parish the court held its sittings there. This was more than was necessary-but utile per inutile non vitiatur, and it was not void on that account. The sheriff, however, was not under the necessity of copying any part of it, which was mere surplusage. It was sufficient to give the defendant a notice, as, special as the form set forth in the statute. If it contained all that was required by the act, it was not in our opinion void, because it did not contain something more.

This brings us to the merits, for we deem it unnecessary to notice

[Herman v. Sprigg.]

particularly the objection, that the plaintiff must look to Flood's estate for the payment of this note-a plea that the endorsee of a promissory note must pursue the endorser alone, and cannot recover against the maker, because he has commenced an action against the party who transferred it, we believe to be without precedent, as it is certainly without either reason, or law, to support it.

The first question to be decided is, whether the contract by which the plaintiff obtained an interest in the note sued on be void? If it should turn out to be so, he of course has not acquired a legal right or title to the instrument sued on.

On this point we have not any doubt. It most clearly appears, by a reference to the various laws of Spain in relation to usury, that contracts, in which it took place, were considered as null, and of no effect. Such also is the opinion of the most esteemed commentators on these laws, that we have been able to consult.

To cite in support of this conclusion, the various statutory provisions, by which from time to time the several monarchs of Spain endeavored to prohibit the loan of money at illegal interest, is unnecessary; we deem it sufficient to refer to a provision contained in one of the latest edicts on this subject. We allude to that of Philip the 3d, promulgated in 1608, in which, after prescribing the penalties, that both borrower and lender are liable to, who enter into usurious contracts; it declares, que sea en si ningun, y de ningun valor, ni effecto, qualquier contrato, o concierto, que contra lo susodicho se hiciere; para que de acqui adelante no valga ni se use de el, so las dichos penas. "That every contract, or agreement, which shall be made against the foregoing, shall be null and of no value; and that henceforward, no one shall avail himself, or profit by such contracts, under the penalties already mentioned." sima Recop. lib. 10, tit. 1, l. 21, which is, Ley. 15, tit. 18, lib. 5, Nova Recop. The clear and positive manner, in which the legislator has thus expressed his will, dispenses with the necessity of construction, or rather leaves no room for it. But in a case of so much importance to the parties and expectation to the public, we refer to the following authorities, to show, that our understanding of the law, is that of the jurists of Spain:

Novi

Los contratos e instrumentos publicos, en que interviene usura, son nulos. Curia Phil. lib. 1, cap. 1, no. 36, verbo Usura.

"The contracts and public acts, in which usury intervenes, are null."

"Son nulos y no trahen aparajada execucion todos los contratos en que interviene usura." Febrero, p. 1, cup. 4, sect. 2, no. 37.

"The contracts in which usury is practised are null, and do not carry with them the force of the thing judged." To the same effect is Siguenza, lib. 1, cap. 11, no. 22.

The next inquiry is to what extent is the contract null? Is it so, both for the principal sum paid, and interest, or only for the interest received? This is the point, which was most contested in argument,

[Herman v. Sprigg.]

on which the most doubt exists, and on which our most serious attention has been exercised.

The counsel, who contended for the nullity of the entire contract, relied on the provision already cited of the Novisima Recopilacion, and others of the same tenor and effect, which are found in that work. Among these is a clause in one of the penal statutes of Spain, which provides, that the principal sum in the contract shall be decreed to the party upon whom the usury has been practised, la suerte principal sea para la parte contra quien se exercitaren las usuras. From this provision he argued, that if the principal sum in the contract was given to the borrower, he might well offer, as an exception when sued, the rule of law which shows the money to belong to him, and which money would be decreed to him, in a different action. Novisima Recopilacion, lib. 12, tit. 22, ley 4, which is, ley 5, tit. 6, lib. 8, Nova. Recop.

Admitting this argument to be entitled to much weight, in an ordinary case, it might still be doubted, whether the defendant, in the suit before us, could avail himself of this provision, for he was not the person, upon whom the usury was practised; it was the endorser who transferred it, that was the sufferer. But we are saved the necessity of examining this question; for, by a subsequent pragmatic of Phillip the 3d, (which is the law we have already cited as to the nullity of the contract,) this provision is repealed, both borrower and lender are declared to be culpable, and a different distribution of the penalties is directed. See, also, Curia Philip. lib. 2, cap. 1, n. 40, verbo Usura.

We have then the question presented on the general provisions found in the laws of the Recopilacion, on the subject of usury. These laws declare that the usurious contract or agreement is null and void. If they stood alone, we would perhaps feel compelled to say what we have often said: that where the law did not distinguish we should not: and that, as the payment of the principal sum made a part of the original contract, it fell within that provision, which declared that contract void.

But there is an earlier statute to be found in the laws of Spain, than any we have yet referred to, which has a most important bearing on the true construction of the subsequent enactments, on the same subject. It is the 31st law of the 11th title of the 5th Partida.

Veinte maravedis, o otro, recibiendo promission del, quel de treinta maravedis, o quarenta por ellos tal promission non vale, nin es tenido de la cumplir el que la face, si non de los veinte maravedis que recibio, esto es, porque es manera usura.

“If a man gives twenty maravedis, or any other sum of money, and receives from one a promise to return thirty or forty, such promise is not valid: nor is the obligor bound to perform it, except for the money received, because it is a species of usury."

By this law, then, we have a provision that a promise to give illegal interest is void. So far, it is in conformity with the provisions VOL. III.-6