author: Slidem,, J.

text:
    Vance et al. v. Depass.
    Where no enquiry was made of the maker of tho note, nor of his syndic when ho had failed,, nor of a person of tho samo símame with the endorser, but the initial letter of whoso first name was differently printed in the city directory, sufficient diligence will not bo considered to have been used, to ascertain tho residence of an endorser living in the city where tho noto was payable, to excuso want of notice of protest.
    Where tho endorser of a noto, who had boon discharged by want of notice of protest, on being applied to for payment stated, “ that he had been very unfortunate» in endorsing the note, that he could not pay it, that tho estate of the maker owed him money, and that he had no moans of paying it but from that source,” it will not be.considcred as a promise to pay the note. Per Curiam: Where there has been laches on the part of a holder of the note, by which tho endorser has been discharged, a promiso to pay, to bo obligatory, must bo deliberately made, in clear and explicit language, and amount to an admission of tho rights of the holdex-, or of a daty and willingness to pay.

      Appeal from the City Court of New Orleans, Cullens, J.

      Budd and Redmond, for the appellants.
    There was due diligence, and the endorser was properly notified, under sec. 3 of act of 13 March, 1827. B. & C’s. Dig. p. 43. Jones v. Mansker, 15 La. 51. Union Bank v. Grimsliaw, 15 La. 321. The evidence shows that the defendant px’omised to pay the note, after the protest.

      Pilié and Le Gardeur, for the defendant.
    There was not sufficient diligence used to discover the residence of the endorse!-. Canonge v. Louisiana State Bank, 7 Mart. N. S. 585. Chitty on Bills, 213. There was no sufficient promise to pay after dischai-ge, it not having been shown that the defendant knew of his discharge at the time of the pi-etended promise. 12 La. 465.
   The judgment of the court was pi'onounced by

Slidem,, J.

The defendant is the endorser of a promissory note, and received no notice of protest. The principal enquiry is, whether there was such an exercise of due diligence as excused the want of notice.

It appeal’s beyond dispute that Depass lived in New (Means at the date of the institution of this suit, which was brought only eight days after pi’otest, and that he also lived in New Orleans before the note was protested; and though his actual residence in New Oi’leans at the date of the protest is not positively shown, yet the inference flows very conclusively from all the circumstances in pi'oof that he had such residence. Depass was a stevedoi-e, and was generally to be seen on the wharves or levee. The notary says he met him in New Orleans the next day after the pi’otest, but said nothing to him; and four days afterwards the plaintiffs’ agent went to him to ask payment, and found him. On the day of protest the notary went to the house which Depass formerly occupied, but found it occupied by another person, who could not inform him whither Depass had removed. He states also that he enquired of a great many persons in the neighborhood, and spent an hour in attempting to obtain information, and also looked for him on the levée, but unsuccessfully. He then gave the notice to the plaintiffs, and deposited a duplicate, addressed to Depass at New (Means, in the post office at New Orleans.

We do not think there was such diligence as the law requires to excuse notice. No enquiry was made of the drawer of the note, nor of his syndic, nor of another person of the same sii’name, whose name was in the directory. See Story on Bills, § 316 and notes. Chitty on Bills, 488. And the opinion of Lord Ellenborongh, in Beveridge v. Burgis, 3 Campbell, 262.

But it is contended that there was a subsequent promise by Depass to pay this note. We do not consider the promise as satisfactorily proved. A witness says, that he demanded payment of Depass, who stated that he had been very unfortunate in endorsing this note, that he could not pay it, that the estate of Pigneguy (the maker) was owing him money, and that he had no other means of paying than from the estate of Pigneguy. Witness advised Depass to go and see the plaintiffs’ attorney, but he said it was useless — he had nothing further to say. This conversation took place four or five days after the protest. It establishes no promise to pay, for where there has been laches on the part of the holder discharging the endorser, the promise, to be obligatory, must be deliberately made, in clear and explicit language, and amount to an admission of the rights of the holder, or of a duty and willingness to pay. See Story on Notes, § 363. Judgment affirmed..

         The endorser’s name was Isaac Dcpciss. The directory contained the name of “ K. Depass.”


source: Caselaw Access Project

author: Edstis, C. J.

license: Public Domain

text:
    Conrey v. Elbert.
    Where an agent residing-in this State, purchases a bill endorsed on blank, &r a non-resident, principal, which is afterwards protested for non-payment ,and no discharge has been given by the principal to the agent from any responsibility growing out of the transaction, the latter may consider himself as a creditor of the party from whom lie purchased the bill. The provision of the ninth sect, of the stat. of 28 March, 1840, that no citizen of another State shall be hereafter arrested at the suit of anon-resident creditor, except where the debtor has absconded from his residence, does not apply to the arrest of a debtor made by the purchaser of a bill, under such circumstances. Per Curiam: He has such an interest in the bill as will entitle him- to-exerciso all the rights of a liona fide litigant creditor.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J. This was an action on a bill of exchange, for $4,500, drawn by John C. Harrison, to the order of the defendant, by whom it was endorsed, on Pearce Sf Elbert, of Philadelphia, who accepted',but failed to pay, the bill- at maturity. The petition, in addition to the usual allegations requisite to charge the endorser of a bill of exchange, alleges, that the bill sued on was drawn against one hundred hogsheads of sugar, .shipped by the drawer to the drawees, who sold the same,, and converted the proceeds, which were more than sufficient to pay the bill, to-their own use. Plaintiff further avers, that the defendant is a member of the aforesaid firm of Pearce Sf Elbert, and that he had, by falsely representing his-firm as rich, obtained credit; and concludes, by praying that the defendant, in case of non-payment, be dealt with as a fraudulent debtor, and required to give-hail.
    The defendant was arrested on the following affidavit, made by the plaintiff:
    “ Peter Conrey, Jr. declares on oath, that William, T. Elbert is justly indebted to him in the full sum of $4,500; that said Elbert is on the eve of leaving the State permanently, without leaving in it sufficient property to pay and satisfy his said demand ; and that he does not take this oath in order to vex the said Elbert, but solely for the purpose of securing his demand.”
    The defendant having been released on giving bond, took a rule on the plaintiff to show cause why the arrest should not be set aside : 1st. Because the plaintiff is not the true and bond fide holder and owner of the claim on which this suit was instituted, but that said claim belongs in fact to the Bank of Charleston, the plaintiff being an agent for the collection of the same. 2d. Because the affidavit is insufficient and incorrect.
    The plaintiff having been ordered to answer certain interrogatories in openoourt, on the trial of the rule, objected to the right of the plaintiff so to interrogate him, which objection being over-ruled, and a bill, of exceptions taken to-the opinion of the court, he stated under oath : “ That he sent the bill, or draft, on which this suit is brought, to the Bank of Philadelphia, for collection ; that he has ordered it back, and expects to receive it here in the course of a week. He purchased the draft on the 3d of March, 1846, for the account of the Bank of Charleston, of which he is the agent; that it was purchased with funds furnished him by the Bank of Charleston; and the said funds were under no individual control. After purchasing the draft he remitted it to the Bank of Charleston, on the 4th of March, 1846, with these remarks in the letter which accompanied it: ! Tho bill on Pearce Sf Elbert is on a shipment of sugar, invoice $6000, made under the supervision of Mr. Elbert, who endorses the bill.’ He did not write any letter to any other person, advising of the said purchase; that he keeps no account in his own name in the Bank of Philadelphia; -that -funds are placed there by the Bank of Charleston, against which he checks as agent of said Bank; does not know to what account the draft was placed by the Bank of Philadelphia; on deponent’s own books it was debited to the Bank of Charleston, but he does not consider the transaction closed until the bill is paid. The bill originated with the deponent, and of course he feels an interest in the termination.”

      C. Moise, clerk of Conrey, testifies that, “ the note sued on was bought on the 3d of last Mareh; it was purchased -by plaintiff as agent of the Bank of Charleston, for acco mt of said bank, and with their funds; after the purchase the draft was remitted to the Bank of Charleston, through which source they make all remittances. This suit was instituted under direction of the Bank of Charleston, as per letter on file. That plaintiff did not endorse the draft when he remitted it to the Bank of Charleston.” Witness could not say whether there was any understanding between the Bank of Charleston and plaintiff, that drafts taken by him, which might be afterwards protested, should be charged t® Mm individually.
    'The “ letter on file,’ addressed to P. Conrey, Jr. New Orleans,” reads thus : “ Bank of Charleston, S. C., May 20, 1846.- With this you will receive from Mr. Moise, under protest, Pearce 8¡ Elbert’s acceptance of J. C. Harrison’s draft for $4,500.
    You will lose no time in seeing the parties at your end, and obtain payment or security with the least delay and in the best manner possible.
    Commending the above to your usual prompt attention, we are, yours,
    H. W. Trevor, Cashier.”

    The rule having been made absolute, and the arrest set aside, the plaintiff appealed.

      Schmidt, for the appellant.
    The plaintiff’s bill of exceptions embodies the px'incipal legal points on which he relies to reverse the decision of the inferior court, which is manifestly ex-roneous, for the following reasons :
    1st. Because the facts, which defendant sought to establish, if they were available at all, could only be inquired into on the trial of the cause, and not in this summary manner.

    Article 218, of the Cods of Practice, permits the defendant to dispi’ove, in a summary manner, the facts stated by plaintiff to obtain the arrest. This law, enacted for the protection of the pex'sonal libei'ty of the citizen, could never have intended that the defendant, lxxerely because he had been compelled to furnish bail, should have the right to try his cause on the merits upon a rule to set aside the arrest, which would be the necessary result, should this tribunal sanction the doctrine of the inferior court.
    Reason alone, independent of px-ecedent, compels us to x’eject such a conclusion ; bxxt if authority be wanting, it will be found in the case of Welman, Curator, 8fe. v. Connolly, 2 Martin’s Rep. p. 245. It is true that, that decision was made in 1812, and is therefore not a construction of art. 218 of the Code of Px-actice. This, however, is no objection, since the law to which it applies was not only in pari materia, but substantially, if not verbatim, similar,, and the reasoning of the court certainly applies equally to the law now in force.
    2d. Because the law of Louisiana does not permit the defendant to interrogate plaintiff on facts and articles on a rule like this.

    An appeal to the conscience of his adversary, is one of the means recognised by our laws for the protection of the x-ights of a suitor; but as this privilege, like evex-y other, is susceptible of abuse, the law has thought proper to circumscribe its xxse. We accordingly find that art. 347, C. P., requires that such interrogatories, if the answers'bo required by plaintiff, must bo annexed to his petition, anil, if by defendant, to his answer. Interrogatories on facts and articles are intended to answer the same purpose as a bill of discovery in an equity court; that is, to enable the party, by probing the conscience af his opponent, to obtain a discovery of facts material to the prosecution or defence of a suit. Story’s Equity J'urisp., No. 1483. Ib. Eq. Plead. No. 311.
    The analogy ef these two remedies seems to hold in other respects, since, in both, it appears to be requisite that a suit should be pending, to which tho remedy is auxiliary. Story’s Eq. Jur. § 1483.
    In this case, there was no issue, the defendant having as yet failed to answer. In mere interlocutory proceedings, which do not in the least affect the merits of the controversy, a plaintiff will not be permitted to have recourse to interrogatories. The case of Swift v. Tyson, 16 Peters, 2, shows the mode and manner in which a bill of discovery is made auxiliary to a defence on a bill of exchange; but neither in that suit, nor in any other which has come under our notice, have we found any thing which -warrants the proceedings of the defendant in the present suit. It would be almost as reasonable to admit a bill of discovery in aid of a demurrer, or a plea in abatement at common law, as to allow of interrogatories on facts and articles to set aside an order of bail.
    3d. Because the defendant has no interest and no right to inquire into the ownership of the note, unless the same ts prejudicial to any defence he may have against the real owner.

    The defendant, the payee of the bill sued on, endorsed the same in blank; but such endorsement makes the bill payable to bearer, and gives even an ageut the right of suing on it, in his own name. Story on Bills of Exch. § 207. The same principle was recognised by this court, in the case of Boswell v. Zender, 13 La. 36G; and in Tapice v. Clifton, 17 La. 152,
    But, if mistaken in every one of the positions hitherto advanced,the judgment of the inferior court is still erroneous,
    4th. Because the record furnishes no evidence inconsistent with the affidavit of plaintiff.

    If we admit that plaintiff was the agent of the Bank of Charleston — that this draft was bought with the funds of that institution — that it had been forwarded to Philadelphia for collection, for account of the bank, what could such admissions avail the defendant ? The Bank of Charleston, as owner, surely had the right to transfer it to the plaintiff, nay, to give it to him gratuitously if it thought proper, since such power is the accompaniment of ownership. By what right, then, does the defendant constitute himself the guardian of tho bank, and undertake to institute an inquiry into tho private relations between the Bank of Charleston and the plaintiff? All that the defendant has a right to exact, and this is a right which never has and never will be denied him, is, that the transfer should not be permitted to operate prejudicially to any defence which he would be authorized to set up against the bill of exchange, had the present action been brought in the name of that corporation.

      H. H. Strawbridge, for the defendant.
    1st. The oath of the plaintiff, Convey, that, “Elbert is justly indebted to him,” is contradicted by his own books, letters, clerks, and by his own evidence. Tho facts alleged to obtain the arrest being also disproved in open court, the defendant was, in accordance with art. 218 of the Code of Practice, properly discharged from custody.
    2. The Bank of Charleston is proved to be the true holder and owner of the billon which suit was brought, and the writ of arrest issued. Now, as the law of 28th March, 1840, § 9, provides “ that no citizen of another State shall hereafter be arrested in this State at the suit of anon-resident creditor,” an arrest by the bank itself would have beon illegal, and the arrest by its agent Conrey, under cover of an action brought in his own name on a debt due to his principal, but which he swears to be due to himself personally, is an evasion of tho laws. ‘‘Nemo potest facere per alium q-uod per se non potest.” Nemo potest plus juris ad alium transferre quam ipse habit. Coke Lit. 309.
   The jungment of the court was pronounced by

Edstis, C. J.

This suit is brought on a protested bill of exchange for 54,500, drawn by John C. Harrison, to the order of the defendant, on the house of Pearce & Elbert, of Philadelphia. It was endorsed in blank by the defendant, and purchased of him by the plaintiff in New Orleans, as agent for the Bank of Charleston. It was protested for non-payment, and tho plaintiff' caused the defendant to be arrested in this suit, which the plaintiff instituted in his own name, and he made the affidavit required by the statute that the debt was due to him.

An application was successfully made in the court below to set aside the writ of arrest, on the ground that the plaintiff was not the true owner of the bill, but that it belonged to the Bank of Charleston, and that the plaintiff was the mere agent of the bank for its collection. From this decision the plaintiff has appealed.

The inhibition of the act of 1840, under which the writ of arrest was sot aside by the district judge, is in these words: “That no citizen of another State shall be hereafter arrested in this State at the suit of a non-resident creditor, except in cases where it shall be made to appear that the debtor has absconded from his residence.” Act of 1840, to abolish imprisonment for debt, s. 9.

This suit is not brought by a non-resident creditor, and it is not denied by the counsel for the defendant that the plaintiff can stand in judgment in this suit, nor that the endorsement of the defendant gives the right to an agent to maintain an action on the bill in his own name.

The affidavit made by the plaintiff is positive and unqualified, and we do not consider this as a case in which the intendment of the statute is 'sought to be evaded, nor that the disclosures made by the plaintiff weaken the effect of his affidavit. True it is that the bill was brought by the plaintiff as agent for the Bank of Charleston, and that the bank has directed its collection ; but the plaintiff swears that he does not consider the transaction as closed. The relations between the plaintiff and dependant, defendant on the sale of the bill, may or not create a responsibility, from which no discharge has been given by the bank to .the plaintiff; and, in this state of things, in re agencld, he is at liberty to consider himself as a creditor of the party from whom he purchased the bill, under representations of the appropiation of a shipment of sugar to its payment, by the house of the defendant, which were not carried into effect. He certainly has such an interest in the bill as will entitle him to exercise the full rights of a bond fide litigant creditor, and the case does not come within the exception provided in the 9th section of the act before cited.

The judgment of the District Court is therefore reversed, and the rule taken by the defendant to obtain the setting aside of the writ of arrest and the discharge of the defendant discharged, with costs in both courts.

        H. H. Stravibridge, for a re-hearing. The question at issue is not what remote interest Convey might have, in case the Bank of Charleston should attempt to make him personally liable, but whether Convey in person was really Elbert’s creditor. The right of arrest belongs only to the creditor himself. “ The arrest is one of tho means which the law gives the creditor to secure the person of his debtor.” C. P. 210. An agont may, indeed, arrest the debtor of his principal; but an agont eanuot swear that the debt due to his principal is due to himself in person.
      But, say the court, tho relations between the plaintiff and defendant, dependent upon the sale of a bill, may or not create a responsibility, from which no discharge has been given by the bank to tho plaintiff, and in this state of things he is at liberty to consider himself as a creditor of the party; ho has such an interest in the hill as will entitle him to exercise the full rights of a bond fide litigant creditor.
      The mere possibility of an agent becoming liable to his principal, cannot entitle him to exercise the full rights of an actual creditor, and assume a power greater than the principal himself ever possessed.
      The chance of A’s becoming, at some future period, the bond fide creditor of B, can'jiot authorize tho arrest of tho latter.

        Could the plaintiff obtain judgment for the $4,500, on a petition setting forth that “ ho may or not become liable to the bank for that amount,” and that, therefore, Elbert is really indebted to him ?
      From the earliest decisions of our tribunals it has been held that, a mere contingent interest does not suffice either to sustain an action or to authorize an affidavit. The very first article of the Code of Practice defines an action to be “ the right given to every person to claim judicially what is due or belongs to him” “An action can be brought only by one having a real and actual interest, which he pursues; but as soon as that interest arises, he may bring his action.” C. P. art. 15.
      In Whetton v. Townsend, 1 Mart. 188, it was decided that, an affidavit for arrest, mado before the debt was payable, was bad, and the arrest was dismissed.
      In the Planters’ Bank v. Lanusse, 1 Mart. 691 and 695, it was settled, that, an endorser who had not paid his endorsee, cannot bo permitted to vote at a meeting of the creditors of the insolvent drawer, and swear that he is a creditor. His own liability may bo well settled, but his becoming a creditor of the drawer depends on a future event, viz., his payment of the obligation.
      In cases of attachment, generally speaking, it is requisite, as in cases of arrest, that the debt claimed should be actually due. Yet in Taylor v. Drane 13 La. 62, it was held that “ an endorser eannot sue the maker of a note not yet due, on the ground that he ondorsod as surety, and that the latter is about to remove with his property, permanently, from the State, before the note becomes due. It is not a'proper case for attachment, as the plaintiff does not show an existing debt due to him by the defendant, nor an absoluto liability incurred as surety.”
      “ So, in partnerships, an attachment or action cannot be sustained by one partner against another, before a liquidation of the accounts between them, because the plaintiff eannot swear positively to the amount of the debt due to him.” Levy v. Levy et al., 11 La. 577.
      I repeat it again, the question mooted is, who is the true owner of the bill — the real plaintiff in interest? Be it remembered, that the suit is on a bill of exchange; it is not such an action as Convey might have brought in his own right for any contingent or future damage. It is the property in the debt evidenced by the bill, which is in issue. Both cannot be creditors. There is no such thing known to our laws as two creditors of the samo debt, unless in the case of creditors in solido, which in the present instance is not even pretended. Who then is the real creditor ? Had the parties to the bill all failed, who must have been placed on their schedules as its owner? Who would have been entitled to vote for syndic in his own right? Who, in case of a dispute betweon Conrey and tho bank, as to the real ownership, would, under the evidence adduced, be entitled io receive the dividends ? Who, in case of a counter-claim, opposed by the defendant, could, under that evidence, plead the debt in compensation? Had a creditor of Gonrey and a creditor of the bank attached or seized the debt, which, in the contest, would have been entitlod to the proceeds ? 1
      The bare statement of these questions carries the answers on their face, and shows tho property in this bill to belong to the bank alone.
      If Gonrey should be ultimately liable to the bank for neglect or mismanagement, it could only be when it had been established that the bank had lost the debt through his fault. Nor could Gonrey, in his own right, be placed on the schedule, vote for syndic, receive a dividend, plead compensation, or even maintain an action in that right, until ho had proved himself formally subrogated to the rights of the bank.
      Subrogation could not take place by operation of law, for he is not a surety for the defendant nor with him, nor an endorser, nor a creditor on any other account. C. C. 2156, 2157.
      The real owner of the debt set forth in tho affidavit and petition is, beyond doubt or question, the Bank of Charleston, which is not a citizen of Louisiana, nor established or rosident. here, and not entitled, under the law of 1840, to arrest the defendant in its own right and name.
      The suit is,.therofore, brought under cover of Conrey’s ñamo, and the defendant is thus deprived of a defence which he could have set up against the bank itself. By various decisions of our courts, an agent is permitted to sue in his own name; none authorizo him, however, to swear as the plaintiff has dono. But, by the very decisions quoted by the plaintiff's attornoy, in such cases tho defendant may avail himself of any dofcnco good against the real owner of the claim.

        Benjamin and Miaou, for a re-hearing. The question is, whether the arrest of tho defendant was ill contravention of the law of 1840? From the tenor of the opinion, we infer that the court would not sanction a clear evasion of the law, or, in other words, permit a party, who had no interest in the subject, to lend his name for an arrest, that without his aid could not be made. Let us consider whether such is not the case with tho plaintiff!
      There is no proof of any interest in tho plaintiff. His clerk know of no guarantee or responsibility rosting upon him in tho transaction. He purchased the bill as tho agent, and with the funds, of the Bank of Charleston. He did not endorse it; ho debited the' bank with the amount advanced; and remitted it to the bank, as its property, to use as it pleased. Here ceased his connection with the bill. If it had been paid, ho would never have hoard of it again. If, after protest, more responsible parties than the defendant had been found in New York,, or Philadelphia, some other agent would have been employed to collect it.
      A guarantee by an agent is not to be presumed. All the evidence in the case was drawn from the plaintiff and his clerk; and they do not speak of any such responsibility. The plaintiff says: “ He does not consider the transaction closed until the bill is paid'. The bill originated with deponent, and of course he feels an interest in the termination.” His answer is carefully drawn. He had a full opportunity of stating his position in the most favorable light, and if he had any other interest than is here stated it would have been fully explained. The transaction may not have been closed, and yet the plaintiff’s agency may have been at an end. He might well feel an interest in the bill,-without being made' richer or poorer by the rosull of the suit. The mere solicitude of a zealous agent for the' interest of his principal,, does not constitute such an interest in the subject as entitles the-agent to use the thing as his own. The interest regarded by the law, is to bo counted in dollars and cents, not tested by the sensitiveness of the feelings. Tho answer of the plaintiff is then conclusive that, he had no pecuniary interest, even for his commissions, and that no ultimate guarantee or responsibility rested upon him. We submit, therefore, respectfully that, tho alternative of even a possible responsibility, growing out of the relations of the parties, roforred to in the opinion, is not supported by the evidence. A responsibility which the plaintiff himself would not aver when interrogated, must be considered as not existing. Considering the plaintiff as a mere agent, without pecuniary interest in the matter, he had no right to institute this suit in his own name.
      An agent, with general powers, like the plaintiff, may certainly institute a suit. It is an act of administration, often necessary for the preservation of tho credit, but he can only sue in tho name of his principal. That such is the general rule will not be questioned. Let us examine the apparent exceptions. A factor who contracts in his own name, may sue in his own name upon the contract so made by him. But if the principal has dealt with the party as his debtor, and has taken steps in his own name to recover, the right of the factor to sue ceases. Paley on Agency, p. 282, and note, citing Sadler v. Leigh, 4 Camp. 195. An agent may sue on a policy of insurance, issued in his own name, because he is a party to the contract. Ibid, p. 283. The possession of a factor, gives him the right to bring an action of tresspass or trover, for injuries affecting his possession. Ibid, p. 284.
      The point is discussed by Judge Story, in his Treatise on Agency, note to § 102. After stating that Chitty had laid down the rule rather too broadly, he intimates that the agent cannot sue in his own name, except when the law considers him a party to the contract.
      The holder of a promissory note endorsed in blank may sue, because the law implies a promise to pay to the bearer. The legal title follows the possession. Where there are several endorsers, having distinct interests, it has been held that, one of them may sue for the benefit of all, with their consent, because they are all interested in recovering from the maker. Chitty on Bills, p. 535, and cases cited.
      All of these exceptions establish only the following principles: that an agent may sue in his own name, when he has the legal title, though in trust for another; when he has possession of the property in dispute; when he has a direct interest in the subject matter; and when he is a party to the contract. We know of no other exceptions, if these can be called exceptions, in all of which a legal title or interest rests in the plaintiff. In accordance with this view, is our own law. “An action can only be brought by one having a real and actual interest, which he pursues.” Code of Practice, art. 15.
      The plaintiff was not the holder of the note. He was not a party by endorsement. He was merely the general agent for the holder. He bought it, not for himself, but as agent of another. He was no party to the contract. He had no possession, with tho right of protecting it. He had no real and actual interest, which we lake to mean a pecuniary interest. He had not received the note even on the trial of the rule.
      A case very similar to this is found in the New York Reports. A cashier of a bank had given up a note belonging to tho bank, on receiving a check for an equal amount. The chock was dishonored, and the cashier brought suit on the note in his own name. It was held that, the note was not novated by the check, but that the cashier could not maintain the suit in his own name. The court say: “ It is not as agent, but as holder or assignee, that the plaintiff must show his right. In point of fact, the note never was transferred or assigned to him. If he had the actual possession of it, the court would not entertain an enquiry into his right, unless there was proof that he had obtained possession mala fide; but the difficulty is, that the plaintiff has not the possession, nor a right to the note, by reason of any interest he has in it.
      “ The officer or agent cannot, without other authority than that arising out of his agency, prosecute on it, or for it, in his own name.” Alcott v. Rathbone, 5 Wend. 494.

        So a Party t° a Nil who has assigned it for value to a third person, cannot suo on the bill, although his responsibility as endorser remains. Zacharie v. Black, 3 Howard. Blanchard v. Grousset, 1 Ann. R. 96.
      Hence, even an eventual guarantee by the plaintiff, if one were proved, would not entitle him to sue in his own name.
      But let us for a moment concede that suit can properly be maintained in tho name of the plaintiff. The question remains whether, by changing the name of the plaintiff of record, the condition of the defendant can bo made worse. All the cases, whether on notes or otherwise, concur on this point. If the suit is permitted, in the name of an agent, but really for the benefit of a third person, the plaintiff is regarded as a nominal party; the party in interest is considered the true plaintiff. The permission of tho law that such suits shall be brought, is given as a matter of convenience and in aid of commerce ; hut this permission is not allowed to destroy any right of the defendant. All defences that could be urged against the true plaintiff, can be made against the nominal party. McNair v. Thompson, 5 Mart. 561.
      “ Ho consequence results from it affecting the rights of the defendant, for ho can offer every defence to the suit of tho agent, he could present against the action of the principal. The agent can only be considered as the nominal plaintiff.” Lacoste v. De Armas, 2 La. 265.
      But are not the rights of the plaintiff increased by the chauge made ill this case ? Is not the defendant placed in duriori casu ? If the Bank of Charleston had sued, confessedly tho defendant couldnothave been arrested. But P. Conrey, Jr. brings the suit, and the defondant is imprisoned for throe months.
      There is no conceivable reason why this plaintiff should bring this suit, excopt to arrest tho defendant. Our courts are open to the complaints of the Bank of Charleston; and, if the arrest had not been desired, the suit would have been brought in its name. The nominal party then exercises a right or privilege, which does not belong to the real party. The bank is permitted to do by its agent, more than it could do by itself.
      True, the arrest is a remedy — a means of enforcing payment; but where the law prohibits an act to a particular person, can that person do the act prohibited, by the interposition of another? This would be a mere evasion. Nor do we understand the rule to be confined to pleadings and proofs on the merits. If there are collateral advantages or disadvantages, the court must look to the bottom of the transaction, and decide these, as well as tho merits, according to the character or position of the actual parties. The nominal party must be set aside; and if a right is claimed, or defence urged, the enquiry must bo, can this right be exorcised by the real party — will the defence avail against him. If it can, the same rule will apply to tho nominal party.
      Rights and remedies are so blended, that it is often difficult to distinguish them. Hence the most intelligible and safest rule is, to say that the defendant shall not be injured by a change of plaintiffs. In this case he cloarly sustains a serious injury in his personal restraint.
      The counsel for the plaintiff admits that the defendant may plead against Conrey every defence that he could urge against the bank. “All that the defendant has a right to exact,” says he, “ and this is a right which never has, and never will be denied him, is that the transfer should not be permitted to operate prejudicially to any defence, which he would be authorised to set up against the bill, had the action been brought in the name of the corporation.
      But if the suit had been so brought, the defendant could have set aside the arrest. Ho would have preserved his liberty, which was lost in the change of the name of the plaintiff, although the suit accrues only to tho benefit of the bank. Is not this one of his defences, and has he not lost it by the change ? Rehearing refused.


author: Etjstis, C. J.

text:
    Bloodworth v. Jacobs et al.
    The debtor has the right to make the imputation of any payment made by him. If he do not exercise this right, the creditor may do so. If neither make any imputation, the law makes it for them; and, in all oases, the imputation takes place in one of these modes, at the time of the payment. Where the imputation is made by the creditor, tho debtor is always protected against surprise as well as fraud.
    When a debtor has accepted a receipt in which a payment is imputed to a particular debt, it it is irrevocable, unless in oases of surprise or fraud on the part of the creditor. C. C. 2161.
    By tho term payment is meant not only tho delivery of a sum of money, but the performance of an obligation. It is an act requiring the exercise of the will — of consent.

      Where a factor receives the proceeds of a crop to bo held at the disposition of the owner, the operates. It is an irregular deposit, identical with a loan for use; and no compensation takes place as to a demand for the restitution of a deposit or loan for use. C. C. 2207 2927. amount cannot be considered as an ordinary debt, upon which compensation necessarily
    Though the distinction formerly existing between a perfect and imperfect deposit is abrogated by article 2934 of the Civil Code, which recognises as the only real deposit a thing received to be preserved in kind, without the power of using it, and to be restored identically, yet parties are at liberty by their contracts, or course of dealing, to create irregular deposits, which, between themselves, are inviolate, and prevent the effects which [the law, in the absence of ¡my such agreement or course of dealing, would have upon their respective rights.
    The contract implied between principal and factor, in the ordinary transaction of business partakes, in some respects, of the nature of the contracts both of loan and irregular deposit. Their accounts-current are necessarily provisional until settled, and, even after settlement, may be rectified by either party on account of errors or omissions, subject to which every settlement is held to be made.
    Where a factor sends an account to his principal, at the usual time, in which certain imputations are made by the former, and the principal approves the account, or receives and acquiesces in it, and there is no fraud or surprize complained of by him, the imputation of payment must be considered as having been made by the authority of the principal, the ratification of the acts of the factor being tantamount to an original imputation by the principal; and such imputations cannot be subsequently changed by the debter, nor by third persons.
    Every ratification by the principal of the act of an agent, relates back to the time of doing the act, or making the contract, which is ratified; and this principle applies as well to acts of imputation of payment, as to other acts.
    The product, or substitute of a thing follows the nature of the thing| itself, so long as it can be ascertain to be such. So the property of a principal, entrusted to a factor for a special purpose, is considered still to belong to the principal, notwithstanding any change of form it may have undergone, so long as it can be identified.
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      H. II. Strawbridge, Elmore, W. W. King, and H. A. Bullard, for the plaintiff. Benjamin, Micou, and Grymes, for the appellants.
   The judgment of the court was pronounced by

Etjstis, C. J.

The plaintiff is the holder of a promissory note for the sum of §11,666, drawn by William Hunter, in favor of Charles A. Bullard, secured by mortgage on a certain plantation and slaves, which were purchased at a sheriff’s sale by one of the dofendants, Charles A. Jacobs, for the sum of §60,982, for which the purchaser only paid to the sheriff the sum of §4,000 07, assuming to pay the mortgages on the property for the balance of the purchase money.

The petition charges that Jacobs refuses to pay the amount of this note, under the pretence that there are certain pre-existing mortgages on the property which will absorb the unpaid part of the price, and which have a priority over that of the plaintiff; but the petition charges that these mortgages do not in fact exist upon the property sold, but have been extinguished altogether or in part, so that there will remain in the hands of Jacobs a sufficient portion of the unpaid purchase money to satisfy the plaintiff’s debt and interest. The prayer of the petition is for judgment against Jacobs, and that the holders of the outstanding mortgages, which are set up as taking the precedence of the plaintiíT’s, “ be decreed to show how much, if any, of said mortgages exists in their favor respectively,” and for general relief. &c.

The defendants, cited as holders of the mortgages, Lambeth aud Thompson, and also Jacobs, filed separate answers, in which they plead the general issue, and on this the parties went to trial. There was judgment against Jacobs for the plaintiff’s debt and interest, and the defendants have appealed.

The case depends on the validity of certain transactions between the defendants and the debtor, Hunter, which the plaintiff alleges have been to his detriment, by the misapplication of certain funds of the debtor, from' time to time, by Lambeth & Thompson in the extinguishment of certain debts of their own, instead of applying them to the payment of the mortgage notes, which were on the property purchased i>y Jacobs, and which the plaintiff, a subsequent mortgage creditor, had an interest in having reduced'.

The rules concerning the imputation of payments were laid down with such admirable clearness and precision in the Roman law, that they have undergone very little change since, and the learned counsel who argued this case concur in their exposition of them.

The debtor has first the right to make the imputation; if he does not exercise this right, it then appertains to the creditor; if neither make the imputation, the law makes it for them; and in all cases the imputation takes place in one of these modes at the time payment is made, it being understood that where the imputation is made by the creditor, the debtor is always protected against surprize as well against fraud.

After the debtor shall have accepted a receipt in which the imputation is made by the creditor to any particular debt, it becomes irrevocable, unless there has been surprise or fraud on the part of the creditor.

But there is a preliminary enquiry to-be made in order to determine this case, and that is, as to the meaning of the word payment, concerning which our Code removes every doubt. Payment is a mode of extinguishing obligations. It is not only the delivery of a sum of money, but the performance of an obligation. It is an act calling for the exercise of the will — of consent, without which it has not the characteristics of that mode of extinguishing obligations.

It by no means follows because a banker has the money of his customer, that he can apply it in payment, or that a factor, selling the crop of the plantel-, has necesssarily that control over the proceeds. The disposition of the fund in both cases, depends upon the agreement, or course of dealing, between the parties. On the breach of the agreement, or the interruption of their relation, what may be the operation of compensation as to their mutual debts, it is not now necessary to determine. Pothier, Contrat de Nantissement, no. 47. Our enquiry is as to the law applicable to the state of facts which this case presents, and whether the defendants were bound to apply the funds of Hunter otherwise than they did apply them. If a factor receive a fund for a particular object under instructions from his principal, no law and no principle of morals will permithim to apply it to any other; and how any different appropriation of it can be required from him by a third person, it is difficult to apprehend. Grave est fidemfallera. Take a very common case. The current expenses of a plantation must be paid — a man’s family must be supported; and if the factor agree to pay bills, or furnish money for these purposes to a planter, out of the proceeds of a crop consigned to him, can he, after procuring the consignment, apply the proceeds to the extinguishment of a previous debt, and set at nought the very condition on which the crop was consigned to him. ¥e have not considered the law to be so.

In the case of Walker v. Birch, 6 Term. Rep., 258, in which the assignees of a factor claimed to retain a quantity of cotton under the lien for a genera1 balance, in order to indemnify them for certain bills of the principal on which the bankrupt was liable, Lord Kenyon said, after stating that there was no doubt in genera] as to the existence of the lien, but that the question arose as to its application to the present case : “It is a maxim as old as our law, convcntio vincit legem. The parties may if they choose introduce into their contract an article to prevent the application of a general rule of law. In order to determine the present case, it is not necessary to consider how the case would have been, if there had been no express stipulation between the parties, for the whole resolves itself into this, that the goods were deposited for a particular purpose.”

An abuse of trust can confer no rights on the party abusing it, nor on those who claim in privity with him. Opinion of Lord Ellenborough in Taylor v. Plummer, 3 Maule and Selwyn, 574. See The Farmers’ and Merchants’ Bank of Memphis v. Franklin Henderson, 1 An. Rep. 393.

Bankers have a lien on bills deposited with them for general account, but if the securities are deposited as a pledge for a specific sum, the banker has no lien on them beyond that sum, though the customer be previously indebted to him in a larger amount. 2d Kent. Com., 5th ed., 584. Story on Agency, ss. 362, 373, 378. 15 Mass. 389. Where the parties have contracted for a particular time and mode of payment, a factor has no right to set up any claim of lien inconsistent with the terms of the contract. Chase v. Westmere, 5 Maule and Selwyn, 180.

It is obvious, in the instance we have given, of a factor receiving the proceeds of a crop to be held at the disposition of its owner for the whole or for a part, that he has no right to make any other disposition of it in the mean time. The amount is at the credit, and subject to the order of the owner. A sum of money thus placed cannot be considered as an ordinary debt, upon which compensation necessarily operates. It is an irregular deposit, which is identical with a loan for use. Massé, Dictionnaire de Droit Commercial, Verbis, Credit Omert, § 2, and Compte-Courant. 2 Pardessus, Droit Commercial, ss. 491, 514. Civil Code, 2900.

By our Code no compensation takes place as to a demand for the restitution of a deposit or a loan for use. Arts. 2207, 2927. And the distinction which exists between a perfect and imperfect deposit, purports to be abrogated by article 2934, which recognizes only as a real deposit the case of the delivery of a thing to be preserved in kind and to be returned identically. But we consider parties at liberty by their contracts, or course of dealing, to create irregular deposits, which, between themselves, are to be inviolate, and prevent the effect which the law, in the absence of any such agreements or course of dealing, would have upon their respective rights.

The existence of accounts to which, under the name of accounts-curront, the law has given a certain effect, between the factor and his principal, necessarily pre-supposes two species of contracts — of loan and of irregular deposit, or rather, the contract implied between them in the ordinary transaction of business partakes in some respects of both. These accounts are necessarily provisional until settled, and, even after settlement, may be rectified by either party on account of errors or omissions, subject to which every settlement is held to be made. 2 Pardessus, Droit Commercial, § 475.

By article 21G1 of the Code, which we have before noticed, when the debtor has accepted a receipt by which the creditor has made an imputation of money lie has received to one debt, tho debtor cannot change the imputation, unless in case of frand or surprize. When, therefore, at the usual time for rendering his accounts, the factor sends his account to his principal, in which certain imputations of payment are made by him, and the latter approves the account, accepts the receipt, in the language of the Code, and there be no fraud or surprise of which he can complain, the payments are to be considered as having been made by the authority of the debtor.

The ratification of the acts of his agent, are considered tantamount to an original imputation of payment by himself; and it is a principle of law well settled, that every ratification relates back to the time of the doing of the act, or making of the contract, which is ratified. Ratificationes negotiorum gestorum ad illa témpora reduci oportet in quibus contracta sunt. Law 25, in fin. Cod. de Donat, inter viv. et ux. 5, 16.

Ainsi de méme que la ratification des actes faits en notre nom, mais sans notre ordro, la confirmation des actes auxquels nous avons concouru, a, par sa nature méme, un effet retro-aptif relativement & la personne qui confirme ou ratifie.

Ce n’est point t\ son égard un contrat nouveau, c’est l’ancien qui conserve ou reprend sa force, et qui produit son effet du jour de sa date, et non pas seulement du jour de la confirmation. 8 Toullier, § 514. Story on Agency, § 239.

Having thus stated our views generally concerning the laW applicable to the case, it is necessary to consider the issue between the parties. The plaintiff alleges that the apparent mortgages on the property purchased at sheriff’s sale by Jacobs, do not in fact exist upon the property, but have been extinguished altogether or in part, so that there will remain in the hands of Jacobs a sufficient sum of money to pay him, the plaintiff. The general issue pleaded by the defendants imposes the burthen of the proof on the plaintiff.

There is no charge of fraud or collusion between the defendants and Hunter made in the petition, nor do the facts authorise any such charge. It seems to us that everything which has passed between these parties is in accordance with the system of defence which the case presents. Hunter Virus not made a party to the suit, and his interest, in having the mortgage notes paid out of the property on which they were secured, is obvious, inasmuch as he was personally bound for them. It is not pretended that he ever directed any payments to be made on the mortgage besides those which were made, or that he ever in any manner dissented from the imputation of payments made by Lambeth & Thompson.

The plaintiff has offered, in support of his allegations, of the partial extinguishment of the mortgage notes, the commercial books of Lambeth & Thompson. The books of merchants are not evidence in their favor, but if used against them the whole must be taken together. Civil Code, art. 2244. The books show a certain course of dealing between the factors and their principal, which implies an agreement between them, and a change in the imputation of any of the payments, after it has been ratified and concluded by the debtor, would be to defeat that agreement. We are at a loss for a reason on which we can found any such right on the part of the plaintiff. Lambeth & Thompson, the creditors, had no such right; Hunter had not. It rested with him to pay the debt secured by mortgage, or not, as he thought proper, and he had the entire disposition of his funds in the hands of Lambeth & Thompson, and was at perfect liberty to direct their approprialon as they haye been applied.

It is proved that accounts were regularly rendered by Lambeth & Thompson to Hunter, generally at the end of every business season; that he was in the city once or twice a year; and a witness, the book-keeper of ^Lambeth & Thompson, swears that he, the -witness, -was in the habit of showing Hunter his accounts on the books from time to time. Hunter never asked any explanation nor examined the accounts particularly; but of the rendition of the accounts and Hunter’s acquiescence in them, there can be no reasonable doubt. Story on Agency, ss. 253, 254.

The counsel for the plaintiff have contended that, the general rule of ratification of the acts of an agent by the principal, does not apply to an imputation of payments; but we do not perceive any reason which would exempt an act of this kind from its operation, which we understand to be general in its relation to all acts to which the assent of the principal is necessary.

It is also urged that an agreement to make the imputations as they were made, or instructions to that effect, ought to have been shown affirmatively by the defendants. But the defence adopted by the defendants precludes the necessity of any such proof being made on their part; it rests upon an implied agreement, or a verbal agreement, to which there were no witnesses, which it is contended results from their books, which the plaintiff has made evidence, and the ratification of the doings of Lambetli’Jse^Thompson, the factors, by their principal, Hunter. Of the existence of any instructions or written agreement there is no evidence. It rested with the plaintiff to call for the correspondence with Hunter; but there was no obligation, under the issue and evidence, on the defendants to produce it without a .call on behalf of the plaintiff.

The different sums of money which.the plaintiff contends ought to have been imputed to the mortgage notes, the learned counsel consider as, on their reception, necessarily falling under the operation of the imputation of payments, by the effect of law, and of compensation, and particularly of the latter by reason of the debt for the sums received being an ordinary debt due by the factor to his principal. What might be the rule of compensation where money is received without any definite instructions or appropriation, or on the termination of the relations of principal and factor, it is not necessary to consider, under the conclusions that we have adopted as to the contract which the evidence in this case established between Hunter and Lambeth & Thompson, and under which the funds received ought to have been applied, and the application of which it id competent to neither party to disturb. The proceeeds of the crops were an irregular deposit in the hands of the factors, destined not for payment nor compensation, but to be returned on the order of Hunter; and Lambeth & Thompson were not authorized to apply them otherwise, nor are we at liberty to give any other direction to the contracts of the parties than they themselves have established in executing them.

“ The product or substitute of the original thing, still follows the nature of the the thing itself so long as it can be ascertained to be such;” and the property of a principal entrusted to his factor for a special purpose, is still taken to belong to the principal, notwithstanding any change of form it may have undergone, so long as it can be identified and distinguished from all other property. Russel on Factors and Brokers, 273.

Admitting that, so far as relates to creditors, Hunter would have no privilege .on account of this irregular deposit, and also admitting that the amount of the deposit would be lawfully compensable against his debts, it by no means follows that, in re agencld, Lambeih & Thompson had any right to withhold it from the application which Hunter thought proper to make of it, provided they received the consignment under this condition. But where is the proof of any such agreement, it is asked ? The proof results from the ratification of Hunter of the gestión of his factors, and of the imputation of payments made by them in their receipts furnished to him, as also from the books of Lambeth & Thompson, which contain the history of transactions as executed by both parties, or by one with the assent of the other, which furnishes the best guide as to the true intent of both.

Concerning the stock transaction, it must be born in mind that the mortgnge originating with it was one of those to which precedence was given by the plaintilfover his mortgage, and which he has insisted to have been extinguished in whole or in part, and on the evidence we can find nothing in its origin which will authorize us to disturb it. The principles which we have laid down appear to us to cover fully this transaction, and that in relation to the Hills & Sinott mortgage.

Under the issue between the parties and the evidence before us, we do not feel ourselves authorized to compel the defendant Jacobs, to pay the plaintiff’s debt to the detriment of the outstanding mortgages.

The judgment of the Parish Court is therefore reversed, and the plaintiff’s petition dismissed with costs in both courts..