text:
    The Bank of Charleston v. Hagan.
    ^Defendant appointed an attorney by an instrument, under seal, in these words, which as' delivered to the Bank of C.: " I hereby constitute Mmy true and lawful attorney, forme and in my name to draw, endorse, or accept any bills of exchange, promissory notes, drafts*, checks, for any sum or sums of money whatever; also to receive from the Bank of C. all moneys that may from time to time be due mo by said hank, whether for dividends or otherwise, and for the same to execute all requisite acquittances; also to receive all presentments, demands, protests, and notices, in relation tó any notes, bills or negotiable instruments, which may at any time be in possession- of said hank, whether discounted oV lodged for collection, upon which I amor maybe chargeable, in the same manner as I would do, if personally present: and I do agree that the powers above granted shall be exercised, and that this instrument shall continue in full force, until revoked by some other written instrument, and until notice of such revocation shall have been delivered in writing to the cashier of the said bank; and lastly, I do hereby, for my heirs, executors,- and admi-, nistrators, jointly and severally, covenant and agree with the said Bank of C. and their assigns, that notwithstanding the death of me, or of any of us, every act, matter and thing* which shall be done-in virtue of any part of these premises before notice of such death shall have been received by the said hank, shall be valid and binding, and shall charge my heirs, executors and administrators, jointly and severally, to the same extent as though such death had not occurred; and from all and every damage or loss to arise from any such act, matter, or thing, I do hereby bind mysel£ my heirs, executors and administrators, jointly and severally, to indemnify and fully save harmless the said hank and their assigns.” M havingmade several notes in his own name, endorsed them as the attorney in fact of the defendant, and in his own name as last endorser. The notes were discounted by plaintiffs, and the proceeds received by M, who absconded, leaving them unpaid. In an action against defendant as endorser: Held, that this instrument is a contract between defendant and the Bank of C., and not a naked procuration to M; that the' endorsement was binding on defendant; that if it had been intended to confine the power to defendant’s own business, there would have been some words of limitation; and that there is nothing in the rule that an agent cannot act so as to bind his principal where there is an adverse interest in him, which could prevent M from binding the defendant by the endorsement.
    APPEAL from the First District Court of New Orleans', McHenry, J. The facts of this case are stated in the opinion of the court infra*

    Schmidt, for the plaintiffs.
    The power of attorney is general in its nature, and authorised McDonald to draw, endorse, or accept any bill or note, for any sum or sums. There is no prohibition to McDonald to endorse his own notes, and courts cannot supply the limitation. The doctrine that an agent cannot act as such in-a transaction in which his interest or employment is adverse to that of his principal, applies exclusively to factors and brokers, and other agents entrusted with the purchase and sale of property. The case of Florance v, Adams, 2Rob. 556, differs essentially from this; there the power only authorised the agent to make and endorse notes for the use of the principal. See Addison on Contracts, pp. 146, 147, 168. 6 Amer. Jurist, pp. 2, 4.
    Roselius, for the appellant.

      McDonald had not the legal capacity to endorse his own notes, for his own benefit, with the name of Hagan. Pothier’s Pandects, lib. 17, tit. 1, no. 10. Pothier, Mandat, no. 14. 18 Duranton, nos. 206, 208, pp. 200, 202. Story on Agency, no. 210 to 214, p. 246; nos. 9, 10, p. 11. Story’s Equity Jurisprudence, vol. 1, p. 338 et seq. ; no. 315 et seq. 3 Chitfy’s Comm. Law, p. 216 etseq. Paley on Agency, pp. 10, 11, 33, 37. Livermore oil Agency, p. 416 to 433. Church v. Marine Ins. Co. 1 Mason s R. 341. Parlchurslv. Alexander, 1 Johnson’s Ch. R. 394. Shepherdv. Perry, 4 Mart. N. S. 267. Copeland v. Merchants’ Ins. Co. 6 Pickering, 198. Beal v. Keernan, 6 La. 407. Miclioud v. Girod, 4 Howard’s R. 552. Florance v. Adams, 2 Rob. 556. It is contended that the. power of attorney contains a mercantile guaranty. Even if it did, the bank could not recover under the evidence in this case, as no notice is shown to have been given to Hagan that the bank had acted on this pretended guaranty; and without such notice no action can be maintained against the guarantor. Edmondston v. Drake, 5 Peters 624. Douglass v. Reynolds, 7 lb. 113. Lee v. Dick, 10 lb. 482. Adams v. Jones, 12 lb. 207. Reynolds v. Douglass, 12 lb. 497.

      Miaou, on the same side.
   The judgment of the court was pronounced by

Eustis, C. J.

This suit is brought to make the defendant liable as endorser, on four promissory notes, amounting to $6,150, which had been discounted by the Bank of Charleston. They were made by Alexander McDonald to the order of the defendant, bore date in the month of July, 1846, and were payable thirty days after date, at the bank; they were renewals of notes of the same parties, all originating within the year 1846. They were endorsed by McDonald, as the attorney of the defendant, and bore, as the last endorser, the signature of McDonald, who absconded, leaving the notes unpaid. There was judgment for the bank, and the defendant has appealed; and the argument for the defence has been principally directed to the want of authority on the part of McDonald to bind the defendant by his endorsement on these notes, as his attorney in fact.

The copy of the power of attorney offered in evidence is in print, and we think we are authorised by that fact, taken with the testimony of Alexander Hagan, a witness examined on the part of the defendant, in considering it as in the form of powers of attorney generally used at the bank. It is in these words:

“ State of South Caeouita.

“ Know all men by these presents, that I, John Hagan, do hereby ordain, constitute and appoint Alexander McDonald, Esq. of Charleston, my true and lawful attorney, for me and in my name to draw, endorse or accept any bills of exchange, promissory notes, drafts, checks, for any sum or sums of money whatsoever; also to receive from the Bank of Charleston, South Carolina, all moneys that may from time to time be due me by the said bank, whether for dividends or otherwise, and for the same to execute all requisite acquittances; also to receive all presentments, demands, protests, and notices in relation to any notes, bills or negotiable instruments, which may at any time be in possession of the said bank whether discounted or lodged for collection, upon which.I am or may be chargeable, in the same manner as I would do, if personally present. Also, an attorney or attorneys under him for all or any of the aforesaid purposes from time to time to constitute and appoint, and the same to displace or remove, and others again to appoint and remove as often as he shall see fit; and all these acts to do as fully and effectually as I the constituent could, if personally present; hereby agreeing to ratify and confirm all the said attorney or my attorneys shall lawfully do in virtue of these presents. And I, the said constituent, do agree that the powers above granted, shall be exercised, and that this instrument shall continue in full force until revoked by some other written instrument, and until notice of such revocation shall have been delivered in writing to the cashier of the said bank; and lastly, I, the said constituent, do hereby for my heirs, executors and administrators, jointly and severally covenant and agree, with the said Bank of Charleston, South Carolina, and their assigns, that notwithstanding the death of me, the said constituent, or any of us, every act, matter and thing which shall be done in virtue of any part of these presents, before notice of such death shall have been received by the said bank,' Shall be valid and binding, and shall charge my heirs, exocutors and administrators, jointly and severally, to the same extent as though such death had not occurred; and from all and every damage or loss to arise from any such act, matter or thing, I do hereby bind myself, my heirs, executors and administrators, jointly and severally, to indemnify, and fully save harmless tlio said bank and their assigns. In witness whereof, I have hereunto sot my hand and seal, this twenty-second day of October, in the year of our Lord one thousand eight hundred and forty-one. John Hagan.

“ Sealed and delivered in the presence of “W. E. Hatne, Jr.”

The original of this power of attorney was filed in the bank, and under its authority McDonald repeatedly endorsed his own notos, with the defendant’s name, during the years 1841, ’2, ’3, ’4, ’5 and ’6. The residence of the defendant was in New Orleans, where he was engaged in the business of selling slaves. He spent two or three weeks in Charleston every summer, on his way to Virginia, and passed through there on his return, his stay then being generally short. The defendant had business transactions with McDonald, and their intercourse was apparently friendly and intimate.

It is contended for the defence that, by the power of attorney, McDonald was only authorised to make and endorse notes in the name of the defendant for the business with which McDonald was entrusted by him, and not to endorse his, McDonald’s, own notes; and it is conceded that the notes sued on were made and discounted for the accommodation of McDonald. Concerning the business of the defendant, with which McDonald is said to be charged, the power of attorney is silent, except as relates to the drawing, endorsing, and accepting bills of exchange, promissory notes, drafts and checks, receiving money due by the bank for dividends or otherwise, and demands and notices in relation to bills and notee held by the bank. The instrument contains no authority to McDonald to administer, manage, or interfere with the defendant’s affairs, either generally, or in any particular case or contingency. ■ There is nothing in “it from which any such authority can be implied. Even the authority to borrow money, or raise funds for his use, is not substantively given, but rests exclusively upon the clause just referred to, which must be considered as containing the purpose and object of the powers, since none other is declared or even intimated.

The object of the power being thus to enable McDonald to use the defendant’s name and credit in this form, the question is whether McDonald could use them for his own benefit, as he has attempted to do in the case before us ; and if any thing short of express words to that effect could authorise it, they must be embraced in the very comprehensive terms in which the power of attorney is couched — to draw, endorse, or accept any bills of exchange, promissory notes, drafts, checks, for any sum whatever. The clauses by which McDonald should receive all demands, notices, &c. respecting negotiable instruments which might hereafter be held by the bank,on which the defendant should be chargeable; that the bank should not be affected by any revocation of the power-, until notice of such revocation should be notified in writing to the cashier; that the death of the constituent should not operate as a revocation of the power before notice of the death should have been received by the bank; and that his succession should be charged with all acts done under the power subsequent to the death and previous to the notice to the bank, provisions which-the laws prevailing in the State of' South Carolina- may have rendered neces1 sary, and the clause of indemnity at the conclusion of the power, appear to us-to contain direct and formal covenants for the benefit and protection of the bank in its business to be done by virtue of this power. The last clause is to save-harmless the hank, and its assigns, from all and- every damage or loss, to arise from any such act, matter or thing. The relation of those general terms to the antecedent clause, orto the whole power, may be questionable ; butthat it contains a substantive agreement between two contracting parties, is not to- be denied.

From-the purport of this instrument it is evidently'a contract Between the-defendant and the Bank of Charleston, and not a naked procuration to McDo~ nald. Tho original, which is a deed under seal, was delivered to the bank, to which delivery the defendant mustbe considered as a party. The object of it related to the obligations of the defendant resulting from the paper which McDonald should endorse or draw in his (Hagan’s) name, and-the terms used are general both as-to its character and amount, and only limited as to its form-. If it was to be confined in its use to the defendant’s own business, there would have been some words of limitation; something from which such an inference would result. With the usual language in which these instruments are clothed we are not unfarpiliar, and when we consider that it is a contract between two parties in the relative position of the plaintiffs and the defendant which We are to expound, we cannot consider that the endorsement of McDonald’s own notes was excluded from the power given to him. The words for me and in my name to .draw, &c., without any terms of restriction whatever, or any other power implying restriction, are, in our opinion, insufficient to create it. They rather refer to the manual' act of writing by substitution, in place of personal presence.

We have considered with great care the several decisions to which we have Been referred by the counsel for the defendant. They are all cases arising under powers of attorney, and we have seen none in which the power was a substantive part of a direct contract with a third person, as in the present instance; and we find in all that the power was given for the conducting of some Business for the principal, which imposed on the instrument the construction that the power was to be used for his benefit alone.

It is very difficult to attempt to fix or follow in the administration of justice any general rule of construction, which shall extend to every possible case in relation to any class of instruments of so general use and of such variety. The mode in which a power is to be executed as indicated by the instrument itself is an index to the purpose for which it was given, which must always be the guiding principle in determining its extent. The. difference between a power to transact the business of the principal, which undoubtedly operates as a restricting clause in a letter of attorney, however general the other terms may be. and ■the contract under consideration between the plaintiffs and the defendant, appears to us so obvious, as to place the latter entirely out of the operation of those salutary rules which are recognised as limitation upon the authority of agents acting under a written authority from their principals.

It is urged on behalf of the defendant that, to hold him bound by these ondorsements of Me DonaM. would conflict with the rule that, in matters of agency the agent cannot act so as to bind his principal where there is an adverse interest in him, as in the case of an agent employed to sell he cannot himself become the purchaser, and one employed to buy cannot himself be the seller. Independent of the construction which we think the power of attorney carries with it, we do not consider the rule as applicable to the case before us, in which there was, a contract between the defendant and the bank, which was completed on the discount of the notes. The accommodation notes made by McDonald in favor of Hagan, and endorsed by him as agent, created no obligation between1 the two parties. Accommodation notes do not bind parties in the form in which they, are made; no action can be maintained on them by virtue of the instruments themselves. They are mere fictions — fabrications of credit, by which the parties hold themselves out by their signatures to be absolutely bound to every person who shall take them for value, in the usual course of business. Vide Chitty on Bills, 6. Boll, Law of Scotland, § 346. There was no contract rpade in this case until the noies were discounted by the bank, and the authority of McDonald to bind the defendant still rests upon the power of attorney; and the question is, whether this mode of raising money, by fictitious credit in this form with a bank, is included in it. That a large portion of the discounts of banks is made upon notes and bills on the faith of the signatures alone, and without reference to their origin or consideration, is a fact which we feel ourselves authorised in assuming. We think that there is nothing in the rule of law relied upon, which prevented McDonald from binding Hagan to the bank by his endorsement. The case of Florance v. Adams, cited by counsel, we consider not applicable to the state of facts which this case presents.

The bank is charged with having connived at and participated in the fraud of McDonald in discounting the notes; .of this we have no evidence. It is said that the bank kept the defendant in ignorance of what was done by McDonald. Without remarking on the difficulty of such conduct on the part of a public institution with which the defendant had business, and during a series of years, there is nothing before us from which the fact of ignorance on the part of the defendant of the use of his name by McDonald on his own notos can be inferred, when the relations between the parties are fully considered. It is stated in argument that in order to lull the suspicion of Hagan more effectually, the following certificate was issued on the 23d July, 1845 :

“Dear Sir. — Upon examination, we find that neither John, or Alexander Hagan individually, or as a firm, are upon any paper in this bank. Bank of Charleston, S. C. A. Moise, Jr., Ass. Cashr.

“ July 23, 1845.

“ To Alexander McDonald, Esq.”

This certificate was given by Moise to McDonald. The only note of McDonald bearing the names of John or Alexander Hagan, then running in the bank, was one for $2,600, due the 26-29th July, 1845, which McDondld paid in advance, on the 23d, before obtaining the certificate. We find nothing in the reasons assigned by McDonald on application for the certificate, which could create distrust in his good faith or solvency. Bearing in mind that, since October, 1841, McDonald had been in the habit of borrowing large sums of money upon his own notes, endorsed by him in the name of the defendant under the power of attorney, as late as 1845; and that, in the months of May, June, July of that year drafts were discounted at the bank belonging to Hagan, and the proceeds passed to the credit of McDonald, and two of them were negotiated on the 24th July, the day after the date of the certificate, we proceed to consider it.

This certificate was to make known to the defendant, what? Whether his name was upon the paper of McDonald in the Bank of Charleston. Had he endorsed McDonald's paper himself? This is not shown or pretended. How then could his name be upon McDonald’s paper in that bank, except under the power of attorney lodged there ? This circumstance, so far from establishing an artifice on the part of the bank, points to the conclusion that the power had been heretofore used in endorsing McDonald’s notes to the knowledge of the defendant, and the certificate was to ascertain for what sum, if for any, his name was on the paper at that time. It furnishes a key to the true intent of the power of attorney. If the defendant had suspected McDonald to be capable of abusing the trust Gonfided in him, would he not have revoked the power ? The certificate relates to the present time, not to the past, and its production is s.ertainly evidence that the state of facts which it disaffirms might exist. If the suspicion of the defendant related to what he considered an abuse of his confidence, the certificate, if required at all, would not have been satisfactory, unless it contained evidence that McDonald had not so used his name in the hank, of which fact it contained no proof whatever. This circumstance of the certificate, and its terms, indicate an enquiry into the use, and not the abuse, of the power by McDonald and the bank.

- On a demand for payment of these notes, the defendant declined making any .offer of settlement until he could ascertain the extent of his liabilities from the acts of his uncle. This is testified to by the person who was the agent of the bank, and is uncontradicted. The witness entertained no doubt of being able to make a settlement, until the matter was referred by the defendant to his counsel.

We alluded to the testimony of Alexander Hagan in relation to the power of attorney used at the bank. It is not without importance in elucidating the object for which it was given. In his answer to a cross-interrogatory propounded by the plaintiffs, among other things, he states : “I gave McDonald a power of attorney in 1841; it was in the form used by the Bauk of Charleston for such instruments, and was to enable him to draw a note in my name in the event of his wanting money during my absence. I went to New Orleans immediately afterwards. Hugh McDonald had died shortly previous, in June, or July, 1841, and up to his death Alexander McDonald had held a similar power given by said Hugh McDonald. The witness is the brother of the defendant, and the nephew of McDonald, and is the person whose name is mentioned in the certificate, which was shown to him and the defendant by McDonald, at the same time and on the day on which he procured it. The witness returned to Charleston in 1842, and frequently asked McDonald whether he had used the power, and McDonald always denied having used it. The witness states that the defendant had no knowledge of McDonald's having used his power of attorney; that he, the witness, heard the defendant, from time to time, from its being given up in July, 1846, make enquiries if he had exercised the power for any purpose, to which McDonald always replied in the negative. The defendant and McDonald settled accounts on the 28th July, 1846, and the balance due by him to McDonald, $5,079 50, was paid by the check of the witness, who had business transactions with the defendant growing out of a shipment of slaves to New Orleans, and their sale on commission by the defendant. McDonald absconded three days after the settlement, on the 31st of July. The power was revoked on the 13th of August.

The construction we have given to the power, and the facts connected with the use made of it, concur, Judgment affirmed.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Hagedorn et al. v. St. Louis Perpetual Insurance Company.
    If freight he not earned in consequence of events not attributable to tlio shipper, any advance made on it must he returned, unless there be an agreement to the contrary.
    Appeal from the Fourth District Court of New Orleans, Straiobridge, J.
    Bradford, for the plaintiffs. Hunton, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action brought by the plaintiffs, as assignees of a policy of insurance for §1,600, or charter party, of the schooner Planet, from New Orleans to Barita, via the Havana. There was judgment for the plain, tiffs, and the defendants have appealed.

The judge of the Fourth District Court of New Orleans, who tried the cause, considered that there was no.substantial defence to the action, and gave his reasons in writing for his opinion, which, on a motion for a new trial, at the instance of the counsel for the defendants, were reconsidered by him without producing any change in his original views of the case. In these views we concur.

It is contended that the insurable interest in the owner of the schooner, for whose benefit the insurance was made, was diminished by the receipt of §800 advance on the freight made by the plaintiffs, who were the charterers in New Orleans, and that that sum must be deducted from the amount due on the policy. We are satisfied that it was merely an advance on the freight, and not an absolute payment to be retained at all events: and if the freight be not earned by events not attributable to the shippers, it must be returned, unless' there is an agreement to the contrary. After the cases of Watkins v. Duykink, 3 Johnson, 335, and Griggs v. Austin, 3 Pick. 22, the law on this subject must be considered as settled, Judgment affirmed.


text:
    Oakey v. Gardiner.
    The assignee of a bankrupt is not obliged to take property of the bankrupt which will he a charge to the creditors — as an hereditas damnosa, or a litigious right, the sale of which will involve the estate in fruitless litigation.
    Appeal from the Fourth District Court of New Orleans, Strawbridge, J.

      Benjamin and Micou, for the appellant. U■ D. Ogden and Mott, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 5th of September, 1842, in NewOrleáns, Henri/ S. Buchner applied for the benefit of the bankrupt act for his own debts; and, as a member of 'the firm of Buckner, Stanton § Co., of New Orleans, Stanton, Buckner & Co., of Natchez, M. B, Hamer & Co., of Yazoo City, was declared a bankrupt, and an assignee was appointed to his estate. The members of the firms wore Frederic Stanton, of Natchez, Henry S. Buckner, and M. B. Hamer, of Mississippi, who died previous to the bankruptcy. On the schedule filed by Buckner of the assets of the partnership of Buckner, Stanton Sf Co., was a claim against G. G. Skipwith, of the parish of Carroll, set down as amounting to S3,259 55, balance on note in the hands of Yerger, which, with several other claims, was purchased by the defendant, at the public sale of the bankrupt’s effects, in June, 3844. Stanton had, in November-, 1842, individually, andas a member of the firms before mentioned, been declared a bankrupt by the bankrupt court of Mississippi, and an assignee was appointed to his estate. After the sale of the claim to defendant, Stanton's assignee formally relinquished in his favor all right and interest in the assetts of Buckner, Stanton Co., purchased by him. On the discovery being made that this claim had passed into a judgment against Skipwith in the United States Circuit Court of Tennessee, by order of the bankrupt court of New Orleans, the assignee of Buckner executed a formal transfer of the judgment to the defendant, on the 25th March, 1845; all of which was notified to the debtor, Skipwith.

Subsequently the aforesaid judgment was sold by Stanton's assignee in Mississippi to the plaintiff, at the sale of the bankrupt effects, under the description of “Judgment of M. B. Hamer & Co. against G. G. Skipwith,” giving its date, rimount, etc., and the court in which it was rendered. This judgment is lbe subject of controversy between the plaintiff and defendant in the present suit. The district judge decided in favor of the defendant, and the plaintiff lias appealed.

We concur in the view of the district judge of the rights of the parties^ The debt we think belonged of right to the house of Buckner, Stanton & Co., of New Orleans, and was properly sold for the benefit of their creditors. The extent of the interest acquired by the purchaser it is unnecessary to examine. Any interest which Stanton had in it we think his assignee was competent to release, and in so doing he acted in discharge of his duty. The decree of the bankrupt court in New Orleans, ordering the formal transfer of the judgment to the defendant, was rendered contradictorily with the assignee, and evidence) it appears, was adduced in relation to the rights of the former, and the judgment, though in the name of M. B. Hamer & Co. was ordered to be transferred to the defendant under his purchase at the marshal’s sale of the effects of the bankrupt. Thus, as far as the power of that court under the bankrupt proceedings extended, the right to this judgment was vested in the defendant. Bankrupt Act, § 6.

The assignee of Stanton, so far from having any interest in disturbing this purchase, acted, we think, discreetly, in releasing any interest he might have in it. The proceeds of the sale were to be applied under the bankrupt law to the extinguishment of the partnership debts, at the domicil of the partnership in New Orleans. Any interference with this disposition of the assetts of Buckner, Stanton Sf Co., to defeat or embarrass this application, would have been rather a burthen than a benefit to Stanton’s estate, and we think the assignee had an undoubted right to release the interest. Turner v. Richardson, 7 East, 339. Assignees of a bankrupt are not obliged to take property of a bankrupt which will be a charge to the creditors — an hereditas damnosa, or a litigious right, the sale of which will involve the estate in fruitless litigation and embarrass the rights of bona fide creditors, and which their interests require should be extinguished.

The defendant having thus acquired the judgment, we think his rights could not be affected by the subsequent sale of it to the plaintiff.

Judgment affirmed.

       Si.ideiJ/, ,T. did not sit in this caso, having boon of counsel.


author: Rost, J.

text:
    Hepburn et al. v. The Citizens Bank of Louisiana.
    An entry made in a bank-book of a certain amount to the credit of tbo depositor, if made at the time of the deposit, by a clerk authorized to make the entry, in the absence of proof of any fraud or collusion between the clerk and the depositor, is conclusive on the bank, which will be estopped from alleging that the entry was erroneously made; hut where the book is written up afterwards, the entry is not an original one, and may he examined into. Where two witnesses, of unimpeaclied veracity, contradict each other, the presumption of truth is in favor of the"one who swears affirmatively.
    Appeal from the Fourth District Court of New Orleans, Kennedy, J., presiding.

      Sigur and Bonford, for the plaintiffs. Pilot, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

This suit is brought for the recovery of the sum $2,230 73, 'a balance on State bonds alleged to have been deposited by the plaintiffs with the defendants, and of a farther sum of $1,081 07, for interest on unmatured coupons, alleged to have been due at the time of the deposits. The defendants deny the claim for interest; and further allege that, on the 29th of April, 1845, an entry was made, by their clerk, through error, in the bank-book of the plaintiffs, of a series of bonds amounting to $2,222 20, which series had been deposited by Peschier Sf Forstall, on whose bank-book no entry was made, and that said credit belongs to them. The defendants acknowledge their indebtedness to the plaintiffs for the sum of $32 56, which they tender, and pray that the entry alluded to be declared null and void. The court of the first instance allowed the claim of the plaintiffs on the deposit of the bonds, and rejected their claim for interest. The defendants have appealed; and the plaintiffs ask that the judgment be amended in their favor, and their claim for interest allowed.

In the case of The Mechanics and Traders Bank v. Banks, 11 La. 260, the Supreme Court held that, a bank is bound for the amount entered as a deposit on a bank-book to the credit of the depositor, by any clerk authorized to make the entry, where there is no evidence of fraud or collusion between the clerk and the depositor. This decision goes far to recognize the doctrine that, unless fr^ud is alleged and px-oved, the defendants are estopped from alleging erx-or. The rule thus laid, down would however be too general, and we think that the distinction taken in the Manhattan Bank v. Lydig, 4 Johns. 389, meets the equity of the case. “If the dealei-’s book,” says Justice Spencer, “accompanied the deposit, and the credit be then given when the deposit is made, it becomes ait original entry, and would be conclusive on the bank; if, however, book is sent to be written up afterwards, it is not an original entry and may be examined into.” In this case, by a previous agreement, the book remained in bank; the credit was not given at the time of the deposit of the bonds, and in presence of the depositor. We are therefore of opinion that the error alleged may be examined into. Absolute presumptions often work injustice, and should be restricted to the cases expressly provided for their application.

In the contract which the entry in the bank-book created between the plaintiffs and the defendants, the latter allege error as to the person with whom they contracted, and say that they intended to bind themselves to Peschier Sf Forstall, from whom the consideration of the contract had been received. It was incumbent upon them to substantiate that allegation by proof. The evh dence adduced did not satisfy the mind of the judge of the court below, and in questions so peculiarly within his province we would not feel authorized to differ from him, unless the judgment was manifestly contrary to evidence.

The error is first attempted to be proved by the order in which the credit stands on the books of the bank, and by its connection with previous and subsequent transactions. The irregularity and gross neglect which has given rise to this controversy, and the fact, that the books of the bank show on their face other errors made at the time of those entries, renders this kind of evidence of very little value; and the present appearance of the books is far from establishing the fact that, the transactions they record were made in the order in which they are entered. One of the clerks of the defendants states that, one of the plaintiffs told him that, on the 1st April, 1845, he was out of bonds, and that all those he had since acquired or deposited in bank were obtained from the houses of Albert and A. Lanfear Sf Co. Upon that admission the defendants obtained from those two houses a list of the bonds delivered by them to the plaintiffs. They obtained also from the plaintiffs a list of the bonds they had sold during that time; and this clerk testified that he examined the memoranda of bonds sold by Lanfear & Co. and by Albert to Turpin, and a memorandum of the series sold by Hepburn Turpin, and also the entries made in the name of Hepburn & Turpin of bonds deposited by them in bank; and that upon that examination he found that the plaintiffs had sold and deposited from the 1st to the 30th April, ten bonds more than they had received.

But the credit alleged to have been given in error was for five bonds only, and the identity of the other five bonds with a series purchased by the plaintiffs from Skiff, is not placed beyond doubt; if it was, the list of bonds sold by the plaintiffs, given in evidence by the defendants, shows that after identifying all the bonds contained in the lists of Albert and Lanfear & Co., ten bonds still remained in their possession. These bonds are unaccounted for, and corroborate the testimony of Hemlin, the clerk of Lanfear & Co., who states that the list furnished by that house did not contain the cash transactions; that the house several times sold Citizens Bank funds to the plaintiffs for cash, and that in such cases no entry was made to the debit of the plaintiffs, those sales being entered as cash sales.

Besides this most uncertain and unsatisfactory evidence, the clerk of the bank, who made the entry, swears that the plaintiffs deposited no bonds during the day on which it was made; but the clerk of the plaintiffs swears positively that they did. The truth or falsehood of their declarations, and one of the two must be untrue, rests between God and their consciences. The veracity of neither is impeached, and the court below correctly considered that the presumption of truth is in favor of the witness who swore affirmatively. 1 Starkie, p, 516, sec. 82.

The books of the plaintiffs appear to have been at all times open to the inspection of the defendants. The defendants might have had them brought into court, if they had deemed it to their advantage. They might have availed themselves of the testimony of Mallard, who posted them up after the occurrence of these transactions; and, as a last resort, they might have put the case to the conscience of their adversaries, by requiring one or both of them to answer interrogatories in open court. They were bound to make out their case, and this litigation cannot be indefinitely protracted because they have neglected some of the means they had of doing so. The course they have pursued may have been adopted after mature deliberation; and, as the case is before us, the plaintiffs must have judgment for the amount of the deposits entered upon their bank-book.

There is no error in that part of the judgment refusing the interest claimed. The bank has never allowed interest on coupons not matured, except during the month of January, 1844. The plaintiff’s account with the bank had been open before that time, and they were credited with interest on the coupons deposited in that month only. They were repeatedly told by the officers of the bank, that previous to that month and afterwards no intei’est would be allowed. When that allowance was made they did not claim interest on coupons deposited prior to its date, and they have continued since to deal with the bank. Their accounts have often been balanced without a claim for interest having ever been made, before the institution of this suit. Without enquiring, therefore, into the absstract legal rights of the plaintiffs, and the manner in which interest accrues on obligations, we ‘are satisfied that the arrangement entered into between the plaintiffs and the defendants in relation to these bonds, was made with the tacit understanding between them that no interest should be charged before the maturity of the coupons. Judgment affirmed,.


text:
    Jones v. Elliott.
    Where in an action by the holder of a note, not endorsed by the payee, plaintiff alleges that he is the owner, the allegation of ownership sufficiently implies a transfer to authorise the admission in evidence of a notarial act of transfer and subrogation by the payee to the plaintiff.
    Appeal from the District Court of Jefferson, Clarke, J.

      Michel and Burns, for the appellant. F. B. Conrad, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action against the maker of a promissory note brought by the plaintiff, who charges that he is the holder and owner of it. It is not endorsed by the payee. On the trial of the cause the plaintiff offered to prove his ownex-ship of the note by a notarial act of transfer and subrogation, xnade by the payee to him. The judge refused to receive this evidence, on the ground that there was no allegation in the petition of any’ transfer of the note, and no&-suited the plaintiff, who ilfLS appealed. The allegation of ownership sufficiently implies the-transfer of the note to the plaintiff. We are of opinion the judge erred in refusing to admit the evidence offered.

It is therefore- ordered that the judgment appealed from be reversed, and the case remanded, with directions to the district judge to receive in evidence the notarial act offered- by the plaintiff, and that the appellee pay the costs of appeal.


author: Kiire, J.

text:
    Thayer et al. v. Tudor.
    One wlio owns real estate in this State specially mortgaged to secure the payment of anote',- and is not represented by any agent authorised to defend suits instituted against him, may he sued, for the purpose of subjecting the mortgaged property to the payment of the debt, by the appointment of a curator to represent him; and a judgment rendered contradictor^ ly with such curator will be binding on the absentee, as far as it can be executed on the property specially affected in favor of the creditor. Such judgment can have no effect beyond the property mortgaged.
    It ife-' not necessary that a curator-appointed to represent an absentee in a suit should be sworn.
    One who has-aocepted the appointment of curator to represent an absent defendant, cannot afterwards resign his trust so as to defeat the action of the plaintiff. The court may, in the exercise of its discretion, discharge him for sufficient cause; but until thus relieved he is hound to defend the action.
    Appeal from the Fourth District Court of New Orleans, Strawbridge, J.

      Benjamin and Micou, for the plaintiffs. C. T. Stewart and Bonford, for the appellant.
   The judgment of the court was pronounced by

Kiire, J.

The plaintiff instituted this action to recover the amount of two promissory notes executed by the defendant, and secured by a mortgage passed in Boston, bearing upon property of the defendant in this city. Both the plaintiffs and the defendant are residents of Massachusetts. The plaintiffs in their original petition alleged, that Bosworth was the agent of the defendant in this State, and prayed that the defendant be cited by service on his agent. Bosworth declared under oath that he was not the agent of the defendant for bringing or defending suits, and was unauthorised to defend this action. The plaintiffs then presented a supplemental- petition, alleging that Charles R. Green was the agent of the defendant, and praying that Green be appointed curator ad hoc to represent the absent defendant, and that he be cited both as agent and curator. Green was subsequently shown not to be the agent of the defendant; he was, however, appointed curator ad hoc in conformity to the plaintiffs’ prayer, accepted the appointment, and thirty days were allowed him to correspond with the defendant. At the expiration of that delay he tendered his resignation of the trust, stating that he had advised the defendant, by letter, of the institution of this suit, and of his appointment, and requested to be informed of the defences to be,made to the action, but that he had received no answer. He further stated that he was not an attorney; that the suit was an important one, and that he was unwilling to assume either the responsibility or expense of defending it, without express authority to that effect. This resignation was not accepted by tbe judge. A default was entered, and, after the legal delays and due proof made of the demand, a final judgment was rendered in favor of the plaintiffs, from which the defendant has appealed.

The only question presented is, whether the defendant was properly cited and represented in the cause. It is assigned as error that a curator ad hoc to represent the defendant was illegal, as no writ of attachment had issued against the property of the defendant, in the absence of which no proceedings binding upon him could be had contradictorily with a curator ad hoc. It is further objected that, no oath was administered to Oreen as curator, and that he had tendered the resignation of his trust and ceased to be curator., before either the rendition of the final judgment, or the entry of the default.

The facts of this case, in our opinion, clearly authorised the appointment of a curator ad hoc to represent the defendant. The defendant owned property in this State, which gave jurisdiction to the court; that property was specially mortgaged to secure the payment of the notes on which the action was founded, and the defendant was unrepresented by an agent authorised to defend suits instituted against him. He belonged strictly to the class of absentees, who may be brought before our courts through curators; and for the purpose of subjecting the mortgaged property to the payment of the debt, a jugdment rendered contradictorily with such curator is valid and binding'upon the absentee, as far as it can be executed upon the property thus specially affected in favor of the creditor. In the case of Millaudon v. Beazley, lately decided (ante p. 916), substantially the same question arose which is now presented. We then held that, a creditor could proceed to enforce his mortgage upon the property subject to it, by causing the mortgagor, who was an absentee, to be represented by a curator ad hoc. A judgment, however, rendered in such a proceeding must be restricted in its operation exclusively to the property mortgaged, beyond which it can have no effect, and can possess none of the attributes of a judgment in personam. Dupuy v. Hunt et al., ante p. 562.

The position assumed that the curator should have been sworn, is untenable. Neither the provisions of the Civil Code nor the Code of Practice contemplate, that the curator appointed to represent an absent defendant in a pending litigation is to take an oath for the faithful discharge of his duties. The 52d article of the Civil Code, which it is contended requires such an oath, refers to the curators spoken of in the two preceding articles, who are appointed to administer the property of absentees. These are expressly required to be sworn. The 57th article provides for the further contingency of judicial proceedings being instituted against the unrepresented absentee, and directs that in such cases the court shall appoint a curator ad hoc, whose duties are limited to the defence of the suit for which he is specially appointed ; but neither that article, nor the corresponding articles of the Code of Practice, require that he be sworn. C. P. 116, 964. The curator, having accepted the appointment and acted under it, was not at liberty to resign his trust so as to defeat the action of the plaintiff. The judge, in the exercise of a sound discretion, could have discharged him upon sufficient cause shown,' but until thus relieved he was bound to defend the suit. The plaintiffs had the legal right to provoke the appointment of a curator, whose intervention in the suit was indispensable in obtainining a judgment, and to insist upon his continuing to act until the ends of his appointment were accomplished. If a curator could, at will, withdraw from a cause, then it would, at all times, be in his power to defeat the plaintiff’s action, by depriving him of the means expressly granted to him by law, for bringing his debtor into court, and proceeding to judgment against him. We cannot recognise the right of the curator, who has accepted the appointment, thus to withdraw and defeat the purpose of the law and the rights of the creditor. The resignation tendered was not accepted by the judge, and the defendant was properly represented in the canse when the judgment was rendered against him, , Judgment affirmed.


text:
    Little et al. v. The Managers of the Consolidated Association of the Planters of Louisiana.
    On production of the half of a hank note and on accounting for tho loss of the other half, the bank will be bound to pay the full amount for which it was issued, on being secured against liability for the other half. O. C. 2258. But in such a case interest will not be allowed from judicial demand, if objected to by defendant.
    A refusal by the Consolidated Association to pay the amount of a note issued by it, on the production a half of the note and accounting for tho loss of the other half, will not subject that institution to the penalty of paying interest at the rate of twelve per cent a year, under the 15th section of the act of incorporation of 10 March, 1827.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      T. A. Clarke and Barker,, for the plaintiffs,
    cited 6 Wend. 378. 2 Robinson, 113. 4 Washington C. C. 253. 5 Conn. R. 106. Chitty on Bills, 10th ed. note p. 260.

      Lavergne and Labarre, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action brought for the recovery of the amount of several bank notes of the Consolidated Association, which it is alleged were sent by mail from New York to New Orleans in halves. The left hand halves only are produced, the others, sent by a subsequent mail, never having arrived. The loss of the right hand halves, and the advertisement thereof, have been sufficiently established, and the judge has provided for the future security of the bank by requiring a bond of indemnity from the plaintiffs, under article 2258 of the Code, which has been furnished. There is no valid objection to the plaintiffs’ right of recovery.

The judgment allows the plaintiffs interest from judicial demand. No objection has been made to this allowance in this court, or by an application for a new trial in the court below, on the part of the defendants. We shall therefore make no change in the judgment; but we desire that this case be not considered as a precedent for the allowance of interest on lost obligations. In Murdock v. The Union Bank, 2 Robinson, 112, no interest was given in a similar case.

The claim of the plaintiffs for twelve per cent interest under the charter of the bank, we consider inadmissible. ' Judgment affirmed.

         Rost, X, being interested, did not sit on tho trial of this ease.


author: Slidem, L Rost, J.

text:
    Champomier v. Washington.
    Where an appellant abandons his appeal, the surety on the appeal bond cannot exempt himself torn responsibility on the ground that “ the judgment appealed from has not been affirmed,” as contemplated by seo. 20 of the stat. of 20 March, 1839, and arts. 575, 596 of the Code of Practice. Per Curiam: The condition of the appeal bond, following literally the requisition of art. 579 of the Code of Practice was, “ that the appellant shall prosecute his appeal, and shall satisfy whatever judgment may be rendered against him, &c.” The appellant did not prosecute his appeal, and the condition of the bond was thus broken.
    A certificate of the clerk of the Supreme Court that the transcript of a record has not been “ brought up” within the time fixed, is equivalent to a certificate that the transcript had not been “filed" within that time, and is sufficient to authorise the issuing of an execution.
    It is not sufficient to entitle an appellee to execution, to file in the clerk’s office of the court of the first instance a certificate of the clerk of the Supreme Court that the record was not filed in time; the certificate must be produced beiore the lower court, and an order of execution obtained. C. P. 589.
    The surety on an appeal bond is not bound until a Ji. fa-has been duly issued against the principal, and returned unsatisfied.
    Appeal from the Third District Court of New Orleans, Kennedy, J.

      Benjamin and Micou, for the plaintiff. I. W. Smith, for the appellant.
   The judgment of the court was pronounced by

Slidem, L

An appeal had been taken by the defendant which, we said in the opinion just delivered (ante p. 722), was to be considered as abandoned. The present appeal was taken by Goodrich, the surety, on the appeal bond in that case, against whom, after the abandonment of the appeal and execution returned nulla Iona, the plaintiff proceeded by rule.

The first point made by the surety is, that the plaintiff cannot proceed against him by rule, or in any form whatever, because the judgment against Washington, from which the appeal was taken, was not affirmed by this court. In support of this doctrine the surety relies on the literal expressions used in the act of 1839, “if the judgment appealed from he affirmedand similar expressions in the 575th and 596th articles of the Code of Practice. We cannot recognise so narrow a construction of the legislation on this subject, or of the bond executed by the surety. The condition of the bond, following literally the requisition of the 579th article of the Code, was “that the said Washington shall prosecute his appeal, and shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of his estate, real or personal, if he be cast in the appeal; otherwise that the said Goodrich, surety, shall be liable in his place.” The appellant did not prosecute his appeal, and thus, even in a literal sense, the condition of the bond was broken.

The next point urged is that, the certificate of the clerk of the Supreme Court filed in the court below, and upon which execution was obtained, is informal ; that it should have certified that the transcript had not been “brought up,” whereas it certifies that it had not been “filed.” The objection is untenable. The expressions are equivalent, and are used as such in articles 588 and 589 of the Code of Practice.

The next point is, that it was not sufficient to file the certificate of the clerk of the Supreme Court in the clerk’s office below; that the certificate should have been produced before the lower court, and an order of execution obtained. W® consider this objection well taken. The language of the Code is; “On the production of this certificate in the lower court it shall award execution on the judgment, which then becomes irrevocable.” The french text is to the same effect: “Sur la représentation de ce certificat, la cour, dont est appel, rendra un ordre d’exécution du jugement par elle rendu, et ce jugement demeui’era ferme et irrevocable.” These expressions contemplate judicial, and not mere ministerial action, upon the clerk's certificate, and very properly; for the district judge having granted an order suspending execution, while that order stands undisturbed on his records, no execution ought to issue; and whether the certificate of the clerk of the Supreme Court, which he issues without any action of the Supreme Court, is in due form and rightfully given as to time, is a matter very properly submitted to the judge, and not left to the clerk of the court below, a mere ministerial officer.

Where a case is decided on a point suggested for the first time in a printed argument, filed after the case had been argued and submitted, and never communicated to the opposite party, the latter will be relieved from the effects of the surprise; and where a certified copy of an order made by the court below,annexed to the application for are-hearing, shows that the ground on which the case was decided had no existence in fact, the additional extract from the minutes will be received as if brought up on a certiorari, and the case be decided at once.

ARE-HEARING was granted in this ease on the application of Benjamin and Micou, for the plaintiff, and the final judgment was pronounced by

For this reason we think the action against the surety premature. The surety is not bound until a fieri facias has been duly issued against the principal and returned. It issued illegally in this case, and the basis of proceeding against the surety is defective.

It is therefore decreed that the judgment of the court below against the said Goodrich be reversed, and that the rule taken against him be dismissed, as in case of non-suit; the plaintiff paying the costs of said rule, and of this appeal.

Same Case — On a Re-hearing.

Rost, J.

In the second brief of the counsel for the appellant, Goodrich, filed a week after the case had been argued and submitted, the point was made, for the first time, that no order of execution had been obtained from the District Court, on the certificate of the clerk of the Supreme Court that the transcript of the appeal taken by the defendant in the main suit had not been filed. No such order being found in the record, we considered the objection well taken, and reversed, as premature, the judgment rendered upon the rule against Goodrich, as surety on the bail bond.

The plaintiff’s counsel has applied fora re-hearing on the following grounds: That the case was argued on the 18th of May, and on that day a printed brief was filed by the counsel of the surety, Goodrich ; that the point upon which the case was decided was not made, either in argument or in the first brief, and that the second brief never was communicated to him; that had this point been made at any time before the case was submitted to the court, he would have applied for a ceriiorati. He has annexed to his petition a copy of the order of execution in due form and properly certified, and prays that the court may receite the additional extracts of the minutes as if brought up1 on a certiorari, and decide the case accordingly.

We see no good reason for refusing this application. The filing of a new ground of defence, after the case had been argued and submitted, operated asurprise against which the plaintiff is entitled to relief; and, under the peculiar circumstances of this case, we feel authorised to extend it to him without further delay. The ground on which we were misled into a decision adverse to bis claim had no existence, and the judgment should have been affirmed.

Judgment affirmed.


author: Slidell, J.

text:
    McAlpin v. Lauve et al.
    The claim of one who has famished labor and materials for theconstrnctionof a steamer under a contract with an agent of the owners, asserted in an action against the latter for the price, cannot be defeated on the ground that the cost of the steamer exceeded the amount for which the agent was authorized to bind the owners, where there is no evidence that the limit had been exceeded at the time the plaintiff furnished his labor and materials, and it is proved that the' owners accepted and used the boat without having demanded an accurate statement of the liabilities contracted for her construction.
    APPEAL by defendants from a judgment in favor of plaintiffs, rendered by the Fourth District Court of New Orleans, Strawbridge, J.

      Wray, for the plaintiffs.
    The only point made for the defence worthy of notice is, that the contract was made in a common law State, where parties owning and running ships and steamers are tenants in common and not commercial partners, and that consequently the defendants are not bound in solido. It may well be doubted whether this contrast, payable in Louisiana, is not to be governed by our law, for Coniraxisse, &c., Dig. lib. 44, tit. 7, 1. 21. At common law, part owners of ships and steamers are bound insólido for the whole debt, for repairs or expenditures for the common benefit; they are analogous to partners, and liable as such to third persons for necessary repairs and stores. Story on Part. 589, sec. 419. 3 Kent’s Com. 155, 156.

      Bonford, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

This suit is brought upon-a note of the following tenor: “ Louisville, Sept. 5, 1845. Seven months after date steamboat Belle Creole and owners promise to pay to the order of J. McAlpin the sum of three hundred and fifteen dollars, for value received, payable at the office of Omer Lauve. Dimitry & Plaisent.”

The petition also charges that the consideration of this note was cabin furniture, &c., supplied for said boat, at the request of Dimitry 8{ Plaisent, the agents of the defendants, and also part owners. Interrogatories were propounded to defendants, and by their answers it appears that the defendants, as well as Dimitry Sf Plaisent, were part owners of the boat at the date of the note, and so continued until the 20th April, 1846, when the owners sold her; that Dimitry Sf Plaisent were specially authorised by the defendants to build the boat, and purchase materials, engines, furniture, &e., with the limitation that they were not to exceed $30,000 in their contracts, the whole of which sum the stockholders have paid; that the boat, after her completion, was received by the stockholders at New Orleans, although, as they say, they were not aware that the cost of the boat had exceeded the amount to which Dimitry Plaisent had been authorized to contract; that after receiving the boat, she was employed by the defendants for their account and profit, and under Dimitry’s command, in carrying freight and passengers for hire. By other testimony the consideration of the note, as above alleged, is proved; and the price of the furniture is proved to have been fair and reasonable.

It further appears that a number of persons, among whom are the defendants, signed articles of partnership, of which the purport was that a boat should be built to be run as a packet boat upon the Mississippi. The stock was divided into shares. Dimitry & Plaisent were to be the agents to build the boat, and Lauve to be the boat’s agent at New Orleans; the amount of capital to be advanced by the stockholders was first agreed at $22,000, and afterwards, upon suggestion that the vessel would cost more, Was extended to $30,000, which the stockholders bound themselves to furnish in proportion to their respective shares. By the letters of 'Dimitry, addressed to Lauve, while the building of the boat was in progress, he informed him that the boat would cost more than was originally contemplated. He states the probable cost at $28,000, but gives this only as an approximate estimate, and expresses the 'hope that the earnings of the boat before the payments all become due, will supersede the necessity of calling on the stockholders beyond the sum of $24,000. In this statement of facts we have not noticed the testimony of Dimitry, whose competency is disputed.

The defence set up is that Dimitry Plaisent exceeded their authority by expending a larger sum in the construction of the boat than the stockholders contemplated, and that the defendants were ignorant of this fact when they received the boat.

It is a sufficient answer to this defence to say that, Dimitry 8f Plaisent were undoubtedly authorised to contract up to the amount of $30,000, and there is no evidence to the point that when the plaintiff supplied a portion of the boat’s equipment the limit had been exceeded. There is also no evidence to show the slightest negligence or impropriety of conduct on the part of the plaintiff. He furnished his labor and materials for the boat’s equipment at a fair rate to an agent authorized to build the boat; the principals permitted that agent to go on with approximate estimates before them, in which he did not undertake to define the exact cost; and they accepted and used the boat, without first demanding an accurate statement of the liabilities incurred. Under this state of facts, we see no justice in their resistance of the plaintiff’s claim. The nature of the partnership imposed a liability in solido,

Judgment affirmed.


text:
    Avery et al. v. Lauve et al.
    Appeal from the Fourth District Court of New Orleans, Strawbridge, J.

      C. A. Jones, for the plaintiffs. Bonford, for the appellants.
   The judgment of the court Was pronounced by

Slidell, J.

The judgmentin this case is affirmed for the reasons stated in the case of McAlpin v. Lauve et al., just decided.


author: King, J.

text:
    Parker et al., Executors, v. Moore et al.
    Where a plaintiff sues in a representative capacity, such as thatof acuratoror executor, want of authority to maintain the action must be specially pleaded in limine litis, in order to put him on the proof of his capacity. A plea of prescription is an admission of plaintiff's capacity, which will preclude the defendant from afterwards contesting it.
    Commercial partners being bound in solido, the acknowledgment of one interrupts prescription as to the other.
    One who sues as executor, and who declares that lie has no personal interest in the case, is competent as a witness.
    Appeal from the Third District Court of New Orleans, Kennedy, J.

      U. H. Strawbridge, for the plaintiffs. Grymes, for the appellants.
   The judgment of the court was pronounced by

King, J.

The' plaintiffs, styling themselves executors of Eden Brashear, deceased, instituted this action upon a promissory note executed by Joseph U. Moore Co., and endorsed by Muir, Moore & Co., of both of which commercial firms the defendants were members. The note bears date the 3d of December, 1838, and fell due on the 1st of January, 1839. The defendants first filed an answer, in which they pleaded the extinction of the note by the prescription of five years. Nearly one year later their counsel filed an exception, which in the plea itself is termed a peremptory exception founded on law, to the right of the plaintiffs to maintain the action, on the ground they were not executors of Brashear in this State, no will having been probated or ordered to be executed in this State, and that they were not authorized within this State to recover debts or administer property of the deceased, and prayed that the action be dismissed. A judgment was rendered in favor of the plaintiffs, from which the defendants have appealed.

The second plea filed by the defendants cannot be i'egarded as a peremptory exception founded on law, which could be pleaded at any stage of the action. The issue which it presented was the capacity of the plaintiffs to maintain the action, and not whether a cause of action existed. The rule is well settled that when the plaintiff claims in a representative capacity created by law, such as curator or executor, the want of authority to maintain the action must he specially pleaded in limine litis, in order to put the party on the proof of his capacity. The answer of the defendants was an admission of the capacity of the plaintiffs, which precluded them from contesting it at any subsequent stage of the cause. 2 Mart. N. S. 389. 4 La. 328. 5 La. 405. The question whether the plaintiffs, under their authority as executors derived from the courts of Mississippi, can maintain this action, has been discussed at bar, but under this state of the pleadings is not properly before us for enquiry. The allegation in the petition is not that the plaintiffs are executors in the State of Mississippi, but merely that they are executors of the deceased. This must be understood as an avermont that they are such executors as are authorized to maintain the suit in this State. If their capacity had been seasonably put at issue, it would then have devolved upon them to show either that they were acting in virtue of an appointment by the courts of this State, or that they fell within some of the exceptions to the general rule that a foreign executor can only maintain actions in this State after obtaining new letters of administration,

Previous to the institution of this suit sufficient time had elapsed for prescription to accrue. To-show an interruption, the plaintiffs rely, first, upon the acknowledgment of Hooper, one of the makers, contained in the schedule of his debts, presented when applying for the benefit of the bankrupt act in 1842, less than five years prior to the commencement of this suit; and secondly, upon the recognition- of the debt by the defendant Moore, and his promise to pay it, made in 1844Í

It is contended, on the part of the defendants, that the articles of the Code which provide that the acknowledgment of a debt by one of several co-debtors in solido interrupts prescription as to the others, apply only to such obligations as are recognized by positive legislation to be joint and several, and that as the solidary liability of commercial partners results from no express legislation the acknowledgment of one partner has not the effect of interrupting, prescription as to the othersi

We are aware of no statutory enactment of this State declaring commercial partners to be bound in solido, yet such has uniformly and repeatedly been held to be the character of their liability. The principle that solidarity takes place in commercial contracts without being stipulated, has been expressly recognized as an exception to the general rule that solidai’ity is not to be presumed. Bennett v. Allison, 2 La. 421. Pothier states the exception to be founded in the interests of commerce, to give additional credit to mercantile associations, and to rest upon the further principle that commercial partners are considered to be the agents of each other for the business of the partnership. Pothier, Contrat de Soeiété, no. 96. The jurisprudence of this State upon this question had been well settled, previous to the adoption of the Code. The principle had been recognized as a part of the law governing such contracts, and was as obligatory as though it had had its origin in express legislation. That the compilers of the Code considered it to be an established rule, is to be inferred from the article which provides that ordinary parties are not bound in solido. Art. 2843. We find no provision of our law which authorises the conclusion that the articles which provide that the causes which interrupt prescription as to one interrupt it as to all the debtors in solido, are to be restricted to such solidary obligations only as are expressly treated of in the Code itself. The terms of the articles are general; they make no exception; and must be understood to relate to all obligors in solido-

II- The objection to the testimony of Parker is untenable, and his evidence removes all doubt from the question of prescription.

In the case of De Kerlegand v. Robin, we held that an administrator who had no personal interest in the cause was competent to testify. 1 An. R. 227. The rule applies equally to executors. The plaintiff Parker, who sues as executor in this action, declares expressly that he has no interest in the suit. His testimony was properly admitted, and establishes a distinct acknowledgment of the debt by the defendant Moore, and his promise to pay it made a short time previous to the institution, of this suit.

Judgment affirmed.


author: Kihg, J.

text:
    Stachlin v. Destrehan.
    An owner of property is justifiable in beating a trespasser, only whore the battery is necessary to the defence of his property.
    Where a party expressly waived his right to challenge a juror who declared .that he had formed an opinion on the case, the fact of the juror’s impartiality cannot be urged by him as a ground for a new trial.
    The fact of the existence of strong prejudice in the public mind against a party isa ground for an application for a change of venue (stat. 1 June, 1846, s. 3); but is no ground for a new trial, unless it be shown that the prejudice operated on the minds of the jurors or influenced their verdict.
    Where' a party resides in the parish in which a case is tided, and is not-absent at the time, an affidavit for anew trial on the ground that it had been discovered since the trial that some of the jurors had formed and expressed opinions before being sworn, must be made,by the,party and not by his attorney. Stat. 20 March, 1839, s. 16.
    Appeal from the District Court of Jefferson, Clarke, IT.

      Hiestand and Preston, for the plaintiff. Collens and Thompson, for the appellant.
   The judgment of the court was pronounced by

Kihg, J.

The defendant is sued for damages for having caused his slave to inflict personal chastisement with a whip upon the plaintiff. The jury gave a verdict in favor of the plaintiff for one thousand dollars, and the defendant, after an ineffectual effort to obtain a new trial, has appealed. The facts disclosed by the evidence are, that the defendant has a .canal running through his plantation, communicating with Barataría, which the public are prohibited from navigating, without previously obtaining the consent of himself or manager. One Mrs. Older employed the plaintiff to assist her in removing her effects from her former residence at Baritaria, and for that purpose the two repaired to the canal. Mrs. Older discovered that a boat, which she appears to have had in the canal, had been taken away during her absence, and, without applying for permission, embarked in a skiff which she found at the Sfime spot, and had proceeded some distance on the canal, when the defendant, recognizing his boat, hailed the parties and ordered them to stop, and to return it to the place whence they had taken it. Mrs. Older asserted that the defendant had lent her boat to some other person, and that she was therefore authorized to use his. The plaintiff, who was towing the boat with a line refused to return it, and was about to proceed on his way, when the defendant ordered his driver, a negro man slave, to chastise the plaintiff, and the slave, in obedience to the order, inflicted several severe blows with a heavy lash which drew blood, as is stated by one of the witnesses, and left marks upon the person of the plaintiff for several days. At the urgent solicitation of Mrs. Older she was permitted to proceed on her errand with the boat, accompanied by the plaintiff. These are the principal facts upon which the jury based their verdict. There is no material conflict in the testimony; but the defendant relies for a reversal of the judgment and for a new trial upon the alleged mis-direction of the judge in his instructions to the jury, and on the fact that one of the jurors had formed an opinion before he was sworn on the panel.

The judge was requested to instruct the jury that, the owner is justifiable in the defence of his property in beating the trespasser, which was charged as requested, with the qualification that the beating must be necessary for the defence. The same instructions were asked in relation to the right of an owner to resist an attempt to commit a larceny, which were given with the same qualification. He was also requested to inform the jury what constituted .a larceny and what a tresspass, which instructions were given, with the addition that neither the larceny nor the trespass justified beating, nor a resort to violence. It is contended that this charge constantly reminded the jury that the fact of beating, proved in this case, was unjustifiable, and is a virtual violation of the 516th article of the Code of Practice, which directs the judge to abstain from saying anything about the facts. It is further urged that the charge is contradictory, the judge having at one time instructed the jury that, under certain circumstances, blows may be justified in resisting the aggressions of the thief pr trespasser, and at another time that they could not be resorted to.

We find no contradiction in the different parts of the charge delivered by the judge. The instructions are to be taken as a whole. The jury were first informed that the owner could justify beating in the defence of his property, but that the beating must be necessary as a means of defence. The subsequent part of his charge, in which he defined a trespass and a larceny, and added that neither of these offences authorised a resort to violence, are to be understood with the qualifications stated in the previous part of his charge, and which it was unnecessary to repeat. The judge did not, in our opinion, err in the principles of law announced to the jury, nor did he violate the rule which forbids him from speaking of the facts.

Six distinct propositions were submitted to the judge by the defendant’s counsel, as embodying the principles of law applicable to the case, and these he was requested to give in .charge to the jury. The judge recognised those rules as applicable, with certain qualifications, which he added. If he had omitted those qualifications the charge would have been improper, and well calculated to mislead the jury. The fact of beating having been proved, the question at issue was, whether, under the circumstances, it was justifiable. Blackstone concisely states the familiar rule on this subject to be that “ in defence of my goods or possession, if a man endeavor's to deprive me of them, I may justify laying hands upon him to prevent him; and in case he persists with violence, I may proceed to beat him away ” (3 Blac. Com. 121); and this was substantially the charge given to the jury. The necessity for a resort to blows as a reason of resisting the alleged trespass, could alone justify the violence used. It was the duty of the judge, when palled on to give certain principles of law in charge to the jury, only to give them with such qualifications and explanations as rendered them applicable to the case under consideration. It was his duty to shape his charge with reference to the particular facts proved, and to announce to the jury only the principles applicable to those facts, and so to announce them as to keep the minds of the jury continually directed to the material question at issue between the parties.

An application was made fora new trial upon the ground, among others, that one of the j.urors had farmed and expressed his opinion before he was sworn to try the cause. It appears that the jnror in question was interrogated upon his voir dire, and stated that he knew nothing of the case. No objection was made to him, and he was sworn .as a juror. A few minutes after, he applied to the court to be excused from serving, stating that when interrogated on his voir dire, he was not aware who the parties to the suit were, and that he had formed an opinion upon the facts. He was directed by the judge to address himself to the counsel in the case, which he did. The defendant’s counsel answered that, ;l It was too late ; that he did not know the juror’s opinion, and was willing to take him.” The defendant’s counsel, it appears, was under the impression that the opinion of the juror was favorable to his client. The objection, which the juror frankly stated to his sitting in the cause, is one which would have excluded bina if it had been urged before he was sworn, and which would clearly have authorised the judge to discharge him even after he had been sworn, if either party had requested it. The defendant had the right to make the objection, but expressly waived it, and his complaint cannot now be heard that the juror was not impartial. A further ground upon which an application for a new trial is made is, that a strong prejudice existed in the public mind against the defendant. This would have been a ground for applying for a change of venue, but is none for a new trial (Acts of 1846, p. 167), without showing that those prejudices operated upon the minds of the jurors and influenced their verdict. The fact that a jury was obtained without much difficulty, who declared on their voir dire examination, that they were free from bias or prejudice, repels the idea that the prejudice, if any existed, was so prevalent as to prevent the defendant from obtaining an impartial trial.

During the argument of the motion for a new trial the counsel for the defendant presented his own affidavit, stating that he had just been informed that two other members of the jury had formed and expressed their opinions before being sworn as jurors, and he applied for subpoenas to compel the attendance of the witnesses by whom he expected to prove the fact. This application was disregarded by the judge, and we think properly. The defendant was a resident of the parish in which the case was tried, and was not absent. He alone could have made the affidavit upon which the motion was based. Bul. & Curry’s Dig. p. 157, sec. 30.

Upon the merits, we think that the verdict ought not to be disturbed. The outrage upon the plaintiff was not only without justification or excuse, but the chastisement inflicted was the most ignominious to which a free man can be subjected. The law gives much latitude to jurors in assessing damages in such cases; and no circumstances are disclosed by the evidence which induce us to believe that they have, in the present instance, abused the discretion confided to them. Judgment affirmed.

       Rost, X, did not sit in this caso on account of relationship to the defondant.


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    The Commercial Bank of Manchester v. Buckner et al.
    A factor who receives a note for collection on account of his principal, and collects and retains the amount of the note, does not act in a “ fiduciary ” capacity, within the meaning of the first section of the bankrupt act of 19 August, 1841; nor is the money so received a “ trust fund ”, in the sense in which those' words are used in the fourth section of that act* The statute was intended to embrace only the defalcations of public officers, administrators, &c.
    APPEAL by the plaintiffs from a judgment of the CommeTcial Court of New Orleans, Watts, J., rendered in favor of the defendant, Buckner. The facts of this case are stated in the opinion infrd.

      Benjamin and Micou, for the appellants.
    This a case erf the conversion of trust funds subsequent to the passage of the bankrupt act of 1841, and is covered by sec. 4 of that law. 5 Law Reporter, 258. Chapman v. Forsyth, &e. 2 Howard, 202, Willis on Trusts, 1, 2. 2 Story’s Equity, 306-10. A discharge under the bankrupt law does not affect trust debts. 5 Law Reporter, 128, 255, 258, 259, 408. The construction given by the Supreme Court of the United States to the word “fiduciary” in the case from 2 Howard, does not apply to the clause in the fourth section. That section refers to a dishonest conversion of trust funds to one’s own use. A debt created by such a breach of trust cannot be discharged by the bankruptcy. See 2 Story’s Equity, pp. 243, 307, 308. Such a conversion is punishable in England, under stat. 7 and 8 George IV, c. 29, sec. 49, as a felony, with fourteen years’ transportation.

      G. B. Duncan, for the defendants.
    There was no trust. 4 Kent, 301, 309. Walker’s Amer. Law, 311, 317. 6 Wheaton, 494-8. Bouvier’s Law Diet. verbo Trust. 2 Story’s Equity, nos. 1046,1285. Chapmans. Forsyth, 2 Howard, 206.
   The judgment of the court was pronounced by

King, J.

The plaintiffs seek to recover from the defendants the sum of $4,000, the amount of a draft confided to the latter for collection, in 1842, alleging that it is a fiduciary debt, and exempted from the operation of the bankrupt act. Buckner pleads a general denial, and further that the debt has been extinguished by his discharge under the bankrupt act of 1841. The folIowingfhcts are disclosed by the record: Buckner, Stanton and Hamer were associated together as Commercial partners, and conducted their different firms, one 0f which was in New Orleans, known under the name of Buckner, Stanton 8f Co. and another in Manchester, Mississippi, known under the name of M. B. Hamer & Co. The Manchester firm was the endorser of a note for $4,000, held by the Manchester Bank, and forfeited for non-payment in 1838. The bank entrusted this note to M. B. Hamer Sf Co. for collection, and received, as collateral security for the debt, a note of Spears for $13,898 64. The note for $4,000 was forwarded to the house in this city,- by whom it was collected, but not accounted for. In January, 1842, M. B. Hamer Co. withdrew the note' of Spears from the bank, and substituted, in lieu of it, a draft at sight upon Buckner, Stanton & Co. for $4,000. This draught was forwarded by the bank to Muckrter, Stanton Sf Co., upon whom it was drawn, for collection, with instructions as to the manner in which the proceeds were to be disposed of. Shortly after the draft was given, Hamer, by letter, advised Hughes, who was in New Orleans, on business of the bank, of the exchange, saying that the note of Spears had been withdrawn for the purpose of making a collection on account of it, of about $4,000, and that the collection had been effected by obtaining the control of a parcel of cotton, belonging to the estate of one Sessions, which liacf bee'n shipped to Buckner, Stanton Sf Co., with instructions to apply the proceeds to the payment of the bill. Hughes called upon Buckner, who stated that he had received the bill, and would pay it as soon as the Sessions cotton could be sold. Buckner, Stanton Cot disposed of the cotton, and applied the proceeds, first, to the payment of a debt due by the estate of Sessions to the firm in Manchester, and the remainder to the administrator of Sessions. The amount due by the estate of Sessions was passed on the books of Buckner, Stanton Co. to the credit of the Manchester firm, which was at the time largely indebted to the house in New Orleans. On the day of , 1842, Buckner received his full discharge in bankruptcy.

The violation of the trust is alleged to have occurred in 1842, by withholding payment of the amount of the draft for $4,000, which, it is contended, was collected; and it is admitted that, the Manchester Bank made no advance upon the Sessions cotton, and discounted no bill payable out of its proceeds when sold. All the circumstances then, which occurred previous to 1842, and which have been strongly urged in argument as showing the creation of a trust, and bad faith in the performance of its duties, may be disconnected from the cause, and disregarded in this enquiry. Divested of these, the record presents the following facts, out of which the present controversy has grown : The Bank of Manchester, being the holder of a draft of M. B. Hamer Sf Co., payable at sight, forwarded it for collection to the defendants, upon whom it was drawn, and the latter promised that it should be paid out of the proceeds of certain cotton then in their hands unsold, which promise they subsequently refused to fulfil, but sold the cotton and disposed of the avails otherwise. The plaintiff contends that the defendants have collected the draft, and converted the amount to their own use; that the conversion was of trust funds, occurred after the passage of the bankrupt act, and that, under the fourth section of that act, Buckner's discharge in bankruptcy has not relieved him from the debt.

The question therefore which is presented is, whether the agency of the defendants in the collection of the draft, constituted a trust within the meaning of the fourth section of the bankrupt act ? We think it did not. The first section of that act provides. “ that all persons owing debts which shall not have been created in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity,” may avail themselves of the benefit of the act.

In the case of Chapman v. Forsyth, et al. 2 Howard’s Rep. 206, the Supreme Court of the United States gave an interpretation to the term “fiduciary capacity” used in this section, and held it to mean the same class of trusts enumerated in the previous part of the clause, that is, “ the defalcation of a public officer,” “administrator,” &c. The court, in that case, proceeded to say : “ The second point is, whether a factor, who retains the money of his principal, is a fiduciary debtor within the act. If the act embrace such a debt, it will be difficult to limit its application. It must include all debts arising from1 agencies; and indeed all cases where the law implies an obligation from the trust reposed in the debtor. Such a construction would have left but few debts on which the law could operate. In almost all the commercial transactions of the country confidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense, a disregard of a trust. But this is not the relation spoken of in the first section of the act.” “ The act speaks of technical trusts, and not those which the law implies from the contract.” The court concludes : “that a factor who owes his principal money received on the sale of his goods, is not a fiduciary debtor within the meaning of this act.”

The clause of the fourth section relied on by the plaintiff, refuses a discharge “ to any person who, after the passing of the act, shall apply trust funds to his own use.” We are not prepared to say that the court intended, in the opinion! referred to, absolutely to determine the meaning of the term “ trust funds,” which occurs in the fourth section; but the reasoning on which it is founded applies with equal force to that section, and tends equally to the conclusion that the ordinary confidence reposed in factors is not the fiduciary capacity referred to.

The agency of the defendants for the collection of the draft can only be regarded as that of ordinary factors, to whom cotton or other commodities are consigned for sale for the shipper’s account. The nature of the trust is in both instances the same. As factors, we think the defendants are not included within the exception of the fourth section relied on by the plaintiffs.

Judgment affirmedk

        Eostis, C. X, having been of counsel, did not sit in this case.