THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.
It was argued in conjunction with the succeeding case of Goodall v. Tucker, but the facts being somewhat different, they are reported separately.
On the 6th of December, 1842, Abner Robinson, of the city of Richmond, Virginia, made his last will, and appointed William R. Johnson and Joseph Allen, of Virginia, and Thomas Pugh and Joseph W. Tucker, of Louisiana, his executors.
On the 21st of December, 1842, the will was proved in Virginia, and letters testamentary granted to Johnson and Allen, the executors.
Tucker qualified as executor in Louisiana, but at what time the record did not show.
On the 29th of February, 1848, Catharine Hill filed her petition in the Circuit Court of the United States for the Eastern District of Louisiana against Tucker, as executor.
The proceedings in the Circuit Court, together with the points excepted to, are all stated in the opinion of the court, and need not be repeated.
It was argued in this court by Mr. Johnson and Mr. Duncan, for the plaintiff in error, and Mr. Taylor, for the defendant in error.
The points made by the counsel for the plaintiff were the following:
1. That the judgments in Virginia were evidence against the defendants, they being coexecutors with the defendants in such judgments. Stacy v. Thrasher, 6 How. 58; 1 Salk. 299; 1 Com. Dig. Adm'r, B. 9; 2 Bla. Com. 507; Dixon's Ex'rs v. Ramsay's Ex'rs, 3 Cra. 319, 1 Cond. Rep. 547; 3 Bac. Ab. Ex'rs and Adm'rs, p. 30, 52.
2. That if the judgments were not evidence, the plaintiffs were entitled to recover upon the original causes of action, they being proved, and not being barred by the Louisiana law of prescription. Article 3505 of the Civil Law says: 'Actions on bills of exchange, notes payable to order or bearer, except bank-notes, those of all effects negotiable or transferable by indorsement on delivery, are prescribed by five years, reckoning from the day when these engagements were payable.' Article 3517 provides that 'a citation served upon one joint-debtor, or his acknowledgment of the debt, interrupts prescription with regard to all others, and even their heirs.'
In Goodall's case the suit was brought on the 29th February, 1828, less than ten years after the bond sued upon matured.
In Louisiana ten years is the limitation, and the law upon the subject is always the law of the forum. Lacoste v. Benton, 3 La. An. Rep. 220; Spiller v. Davidson, 4 Id. 171; Graves v. Routh, Adm'r, 4 Id. 127; Young v. Crossgrove, Id. 234, 235; Wheeling v. Preston, 12 Rel. 141; 2 La. An. Rep. 315, 646; Story's Conflict of Laws, 576.
In Hill's case the same authorities are referred to, and she had a right to sue in her own name, she having been recognized by the District Court as universal legatee, and being assignee of the judgments. 10 Mart. Rep. 117; 2 N. Series, 296.
Mr. Taylor, for defendant in error.
Upon the trial of the cause, the court decided, as if instructing a jury, these two propositions:
1st. That the Virginia judgment against Joseph Allen and William R. Johnson, executors of the last will and testament of Abner Robinson, appointed and qualified under the will in Virginia, was not evidence against the defendant; and
2d. That the original cause of action as to the defendant was barred by prescription, and the plaintiff excepted to the two decisions. If there be no error in these decisions, the judgment of the court below must be affirmed.