
    BARBARIN vs. DANIELS.
    Eastern Dist.
    December, 1834.
    APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.
    When the original payee is in possession of a note, on which his name is endorsed in blank, no proof of re-transfer is necessary to enable the holder to recover.
    A mortgage which, without reciting the interest, refers to and secures the payment of a note, is evidence of the principal obligation, and covers all the stipulated interest therein.
    Where a note, stipulated for ten per cent, per annum interest, and was made payable eighty-five days after date: Held, that the interest run from the date of the note, until payment, without any demand at its maturity.,
    The Supreme Court, in its discretion, will refuse damages, as for a frivolous appeal, even when the grounds of defence are untenable, and when the principles upon which they rest, have been settled by previous adjudication.'
    
      The plaintiff obtained an order of seizure and sale, on the following note, secured by a mortgage on a house and lot, in the city of New-Orleans.
    
      “$2,700.” “New-Orleans, April, 16, 1834.”
    “Eighty-five days after date, I promise to pay to the order of Morris Jacobs, two thousand seven hundred dollars with interest, at the rate of ten per cent. ; value received.”
    “ Aaron Daniels.”
    
      Endorsed, “ Morris Jacobs, J. Barbarin.”
    
      Paraphed,, “Ne varietur, 23d April, 1834.”
    “Carlisle Pollock, N. P.”
    When the note became due, it was deposited in bank for collection, and protested at the instance of the cashier, as holder, and sued on by the plaintiff, without any re-transfer.
    The mortgage simply recites the note sued on, by its date and amount, without any mention of the interest stipulated on its face. The defendant took an appeal from the order of seizure and sale.
    D. Seghers, for the appellant and defendant.
    1. The plaintiff sues on a note of two thousand seven hundred dollars, which he alleges, necessarily imports confession of judgment. Now it appears from the note, that it was transferred by his signature endorsed thereon; and from the instrument of protest, it appears that the bank of Louisiana is the holder of the note, and consequently the only party entitled to sue on the same.
    
      2: The judge a quo, therefore, erred in granting the order of seizure and sale, at the suit of the plaintiff, Joseph Barbarin, while from his own showing, it appears that he had parted with the note.
    3. The order of seizure and sale is granted, “for the payment and satisfaction of the above sum of two thousand seven hundred dollars, together with the maximum of legal interest and costs,” agreeably to the conclusions of the petition. Now it is on the notarial act, not on the note, that the order of seizure and sale can issue. Besides, even if the note should be considered as sufficient evidence of such a stipulation of interest, this stipulation cannot be extended beyond its own limitation: that is to say, that by the wording of this contract or promise, the time during which the interest of ten per cent. per annum is to be paid, is confined to the eighty-five- days which the note had to run.
    When the original payee is in possession of a note on which his name is endorsed in blank, no proof of re-transfer is necessary to enable the holder to recover.
    
      A. mortgage which, without reciting the interest, refers to and secures the payment of a note, is evidence of the principal obligation, and covers all the stipulated interest therein.
    4. The judge a quo, therefore, erred: 1st. In granting the order of seizure and sale for the payment of conventional interest, not secured by the mortgage recited in the notarial acts on which' the said order is founded, and not even mentioned in those acts; and 2d. In not restraining the rate of interest at ten per cent, per annum to the space of time during which it was promised to be paid.
    
      Keene, contra.
    
   Bullard, J.,

delivered the opinion of the court.

The appellant assigns for errors apparent on the face of the record, 1st. That it appears by the note itself that it had been transferred by the endorsement of the appellee, and that the Bank of Louisiana was the holder at the time of the protest; and, 2d. In granting the order of seizure for the payment of conventional interest, not secured by the mortgage recited in the notarial acts on which said order is founded; or, at all events, in not restraining the interest to the space of time during which it was promised to be paid.

I. The endorsement is in blank, and the original, payee is in possession of the note. It is true, the protest states, that the cashier of the Bank of Louisiana was at that time holder for the bank. But this court has decided, in several cases, that when the payee retains possession, and the endorsement of his own name on the note is in blank, no proof of re-transfer is necessary to enable the holder to recover. 7 Martin, N. S. 255. 2 La. Reports, 193.

II. The note referred to in the act of mortgage, and identified with it by the certificate of the notary, stipulates for an interest at the rate of ten per pent, per annum, and is made payable eighty-five days after date. The mortgage, without reciting the interest, refers to and secures the payment of the note, which is evidence of the principal obligation. The mortgage, therefore, covers the stipulated interest. But it- is contended, that the interest is not to run after the maturity of the note, and that the judge erred in issuing the order of seizure for interest, until final payment. We think the judge did not err. Article 1931 of the Louisiana Code, provides, that “in contracts stipulating a conventional interest, it is due, without any demand, from the time stipulated for its commencement until the principal is paid.”

_Where a note stipulated for ten per cent, perannuminlerest,and was made payable- eighty-five days after date: Held, that the interesti^un from the date of the note until payment, without any demand at its maturity.

The Supreme Court, in its disci’etion, will refuse damages as for a irivolous appeal, even when the grounds of defence are untenable, and when the principles upon which they rest, have been settled by previous adjudications.

The appellee in his answer, prays for damages of ten percent. as for a frivolous appeal. The grounds upon which the appellant seeks relief in this court are, in our opinion, untenable; that which relates to the endorsement having been adjudicated upon by this court, in several cases, and, as relates to interest until final payment, the principle is settled in the most unequivocal manner by the article of the Code above referred to. But we do not consider this one of the cases which require us to inflict a severe penalty on the appellant.

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