author: Preston, J. Siideix, J.,

text:
    Campbell and Rickarby v. Alfred Penn. Bradley, Wilson & Co., Intervenors.

      B., W. Co., on the third of Juno, sold cotton to one 8., through a broker; but being fearful that the purchase money would not be paid, instead of giving an order for the cotton, in favor of the purchaser, on the proprietor of the press where it was on storage, they gave the order in favor of the broker. On the 5 th of June, 8., the purchaser, obtained from C. and R. an advance on the cotton, and on the 7th of June, a further advance from the same parties. On the 6th of June, 8. ordered the broker to transfer the cotton on the books of the press, to C. and R., which was done by making an entry: “From B., W. 4• Co., to C., R. 4- Co.’’ A part of the cotton had been weighed; the balance had not passed the scales-8. absconded, and B., W. 4’ Co. refused to deliver the cotton. It was held, that the cotton which had been weighed, was liable for the advances. That which had not been weighed, was not liable. For, although it was wholly delivered by B., W. 4' Co. to the broker for the purpose of being delivered to their vendee, yet it was only partly delivered by the broker, to the latter.
    The agreement amounts to the salo between the parties; the delivery completes it as to third persons.
    The delivery of part of a divisible thing, is a delivery of that part alone, and not of tho whole. The actual delivery of the whole, in block, completes the sale, even as to third persons, though the article is not counted, weighed or measured.
    The secret instructions of a party to his agent, will not qualify the apparent absolute control and dominion with which he has thought proper to invest him. Slidell, J.
    Where one of several parties must suffer, the loss should fall on that party who, by his imprudent confidence, has enabled the wrong-doer to get credit with innocent third persons, to which, upon the true, but hidden state of facts, he would not be entitled. Slidell, J.
    Although the advance be not simultaneous with the possession, the privilege attaches as soon as possession is acquired, in pursuance of the antecedent promise, and is effective when adverse rights have not in the mean time been acquired. Slidell, J.

      APPEAL from the Fourth District Court of New Orleans, Strawbridge, J'.

      Hunton and Bradford, and Wolfe and Singleton, for plaintiffs.

      Benjamin and Micou, for Bradley, Wilson Sf Co.

   By the court:

Preston, J.

This is one of the great number of cases, in which the buyers and sellers of the vast products in our market, are defrauded by fraudulent speculators, and in which one or the other, or both, must suffer.

It is clearly established by the evidence, that Bradley, Wilson Sf Co., on the 3d of June, 1851, through the instrumentality of N. B. Keene, a cotton broker, sold to one Simpson, 734 bales of cotton. The cotton was on storage, in a press, and on the same day they gave the following order, to the keeper of the press: “ A. Penn, Esq., Union Press, will please deliver to N. B. Keene, seven hundred and thirty-eight bales of cotton. Bradley, Wilson & Co.”

There is kept in the cotton presses a book, called the “ black book.” When cotton is sold through the intervention of a broker, it is entered and described in the columns of this book, and the broker heads it, “ From A. B., seller, to C. D., buyer.” It corresponds with a custom in London, for the broker to give to the buyer a note of the sale, called “ a sold note,” and to the seller a like note, called “ a bought note.” In this case, on the day of sale, Keene entered the cotton, with its marks, in the black book, but without a heading, as it would seem, from a knowledge that Simpson was in the habit of consigning his purchases for advances, and as a means of insuring payment.'

On the 5th of June, Simpson obtained, from Campbell and Rickarby, an advance of $14,000 on the cotton; and, on the 7th of June, a further advance of ten thousand dollars.

On the 6th of June, 1851, while these advances were being made, Keene, by the order of Simpson, transferred the cotton, by heading the entry in the black book, “From Bradley, Wilson Sf Co. to Campbell, Rickarby Sf Co.,” and signed it. On the same day, he signed and gave an order to the press, in these words: “ Union Press will please compress, and send on board the ship Epaminondas, the undermentioned cotton, as entered on the black book,” describing 611 bales; and, on the 7th of June, gave a like order, to compress and send a hundred bales on board the ship Sallie Fearn. The orders were delivered to Campbell and Rickarby, as appears by their endorsements, to send the cotton on board as soon as possible.

On the 7th of June, Simpson absconded, without paying for the cotton. Four hundred and sixty bales had been actually weighed,.and partly shipped on board the ship Epaminondas. The balance of the cotton had not passed the scales, and Bradley, Wilson Sf Co. stopped the further weighing, and claimed the whole of the cotton. Campbell and Rickarby sequestered and claimed the whole, as transferred to them by Simpson, for their advance of twenty-four thousand dollars.

The pretensions of the plaintiffs, amount to a claim for advances upon cotton, consigned to their order by the owner; those of Bradley, Wilson Sf Co., to a recision of the sale of the cotton to Simpson, for non-payment of the price.

There is no want of good faith in these transactions, on the part of either the plaintiffs or intervenors. One or the other must suffer, by the frauds of an unfaithful cotton speculator. The immense losses to honest merchants, from like causes, have not taught them so to arrange with each other, that, in cash sales, delivery and payment should be simultaneous.

The whole controversy in this case, as in all those of like character that have gone before, is as to the delivery of the cotton. The rule of law is unbending. The agreement, amounts to the sale between the parties; the delivery, completes it as to third persons. Parker v. Starkweather, 7 U. S. 483. Erwin, McLaughlin & Co. v. Torrey. Laughlin v. Canal, 11 R. R. 140.

It is fully established by the evidence, that Bradley, Wilson Sf Co. sold the cotton to Simpson, and that the latter consigned it to the order of Campbell and Rickarby, who made the advances on the consignment. If the advance was made upon cotton actually delivered to the consignees, their privilege for the advance takes precedence of the vendors’ lien. Did, then, the vendors deliver the cotton to Simpson, and he to his consignees, are the questions to be solved.

In considering the question of delivery, the district judge has made an all-important observation, that must be cax'efully boi'ne in mind. The case is one of a double delivery, fx'om vendor to vendee, and from vendee to the consignee. It took place, however, through the agency of the same person, the broker, who, in addition to his appropriate duty of making the sale, was employed by the parties to make deliveries. Bradley, Wilson 8f Co., on account of a distrust of Simpson, chai’ged Keene, the broker, with their delivery to him, and Simpson directed the same Keene to make his delivery to Campbell and Rickarby. For the order of Bradley, Wilson 8f Co., to Penn, was to deliver the cotton to Keene. This was not, as contended, an order to deliver it to Simpson; but, as proved, was purposely intended to be otherwise; and, in fact, the cotton never was transferred on the black book to Simpson.

If Bradley, Wilson Sf Co. had themselves, or by their agent, placed the whole of the cotton in tl ) possession of their vendee, though only symbolically on the black book of the cotton press, it seems so well established, by the usages of trade, that this would have been a delivery, that we could not resist, how ever much disposed, to favor real, rather than fictitious transactions. But, as they took the precaution to place it in the name of their agent, for the very purpose of avoiding a constructive delivery to Simpson, they are entitled to the benefit of that precaution. Much less had Keene powex-, from Bradley, Wilson Co., to transfer the cotton symbolically on the black book from them to Campbell and Rickarby. He had no power, from them, to deliver the cotton to, or consign it to, the order of Campbell and Rickarby at all. The latter made no advance to the factors, and do not pretend to have received the cotton from them. They made their advances to Simpson, and contend that they received the cotton from him. Then Keene placed it on the black book in their name, by Simpson’s order, and not by the authority of Bradley, Wilson Co. So that Simpson made a symbolical delivery, on the black book, to his consignees, befox’e he had obtained a symbolical delivery on the same book himself, from his vendor's.

The case is made plainer, by supposing two agents, one for the vendor, and one for the vendee. The agent of the vendor had power to place- the cotton in the name of the vendee, on the black book, but did not do so. The agent of the vendee made a transfer on the black book, from the vendor to the consignees of the vendee, but had no power from the vendors to do so, and therefor» the consignees derived no title from the transfer.

We, therefore, regard the transfer on the black book, from Bradley, Wilson 8f Co. to Campbell and Rickarby, as made without authority, and divesting the former of no rights, and as conveying none from them to the latter. In fact, it implies what is not true, that Bradley, Wilson Sf Co. sold, or transferred, the cotton to them, whereas, they had no transaction whatsover with them.

It is strenuously contended, that the order of Bradley, Wilson Co., to deliver the cotton to Keene, was a delivery to Simpson. It does not purport to be so; and, the fair inference, from Keene’s testimony, is, that it was given to him to hold the cotton, subject to his order, and to place it so on the black book, to avoid an immediate delivery to Simpson; and, that this was done, after consultation with Bradley, Wilson 8f Co., and on account of rumors that Simpson was buying cotton beyond his means. The possession of the broker, under these circumstances, was not, as contended, the possession of Simpson, but the possession of Bradley, Wilson 8f Co.

But Keene had power to deliver the cotton to Simpson, the vendee of Bradley, Wilson Sf Co. No other meaning can be attached to their order, to the press, to deliver the cotton to him. Now, he did cause to be weighed, by the weigher of Bradley, Wilson Sf Co., to be passed through the scales, and to be delivered, four hundred aud sixty bales of the cótton. To whom did he deliver it ? that is, for whom was it passed through the scales ?

Not for himself. Lie had possession of the whole, by the order of Bradley, Wilson Co.; and, in fact, held it for them. It was not passed through the scales for Campbell and Rickarby. His principals had nothing to do with them. He weighed and passed it through the scales for Simpson, because his principals had sold it to him.

This process, it is fully proved, is an actual delivery to the vendee. It was so considered, by both Keene and Sir.pson; for the latter gave orders, through Keene, to the press, to deliver it for shipment, and it was partly shipped. AH that which was weighed was, therefore, in the possession and at the risk of Simpson, as owner. It was no longer at the risk of his vendors. Under such circumstances, he obtained an advance from the merchants, to whose order he consigned it, which covers all that was found in his possession, when the further delivery was stopped by Bradley, Wilson 8f Co. They had the right to stop the further delivery to Simpson, because he failed to pay the price; and, he could deliver no more to Campbell and Rickarby, because no more was delivered to him.

We concur with the district court, in the opinion, that the delivery of part of a divisible thing, is a delivery of that part alone, and not of the whole : as illustrated by the early case of Durnford v. Brooks, 3 M. R. 222. So the actual delivery of the whole, in block, completes the sale, even as to third persons, though the article is not counted, weighed, or measured, as decided in the case of Morgan v. Skiff.

The cotton was, therefore, wholly delivered by Bradley, Wilson ¿y- Co. to the broker, for the purpose of being delivered to their vendee, but only partly delivered by the broker to the latter.

It was the misfortune of Campbell and Rickarby, that they advanced on a symbolical delivery by Simpson, through Keene it is true, of that which had not been symbolically, much less actually, delivered to him. It is the misfortune of Bradley, Wilson Sf Co., that their agent, in pursuance of power given to him, actually delivered to Simpson 460 bales of cotton, sold by them without receiving the price. By putting the property into the possession of the vendee, the vendor enabled him to commit a fraud, by obtaining the advance without paying the price; and equity obliges him to bear the loss, rather than the merchants who, in good faith, made the advance to the owner, and actual possessor, of the 460 bales of cotton. Russell v. Favier, 18 L. R. 589. The Barings v. Corrie & Co., 2 Barn. and Ald. R. 137.

Upon the whole, we are of opinion, that the judgment of the district court is correct, and affirm it, with costs.

Siideix, J.,

delivered the following separate opinion: Bradley, Wilson Sf Co. say, they had not given possession of the cotton to Simpson, their purchaser, because the weighing had not been completed, and they had not, in any manner, consented to the delivery; and they cite the 2433d article of, the Civil Code, which says: “When goods, produce, or other articles, are not sold in a lump, but by weight, by tale, or measure, the sale is not perfect, inasmuch as the things so sold, are at the risk of the seller, until they be weighed, counted, or measured; but the buyer may require either the delivery of them, or damages, if any be for the same, in case of non-execution of the contract.” In my opinion, the mutual rights and relations of Bradley, W. Sf Co., and Simpson, are not the test of the rights of Campbell and Rickarby. They are third persons. What have Bradley, Wilson 4* Co. done, so far as plaintiffs are concerned? B., W. Sf Co. had cotton standing in their names, at Penn's press. Cotton so held, is subject to the order of the person who puts it there. B., W. Sf Co. give Keene a written order, addressed to Penn, as the keeper and proprietor of the press, directing him to deliver to Keene seven hundred and thirty-eight bales of cotton, mentioning the respective marks and numbers of the bales. As I understand the evidence, this order gave Keene the control of the cotton. The control of Bradley, Wilson Sf Co., was divested. They ceased to be the holders of the cotton, as regarded third persons.

In this connection, the evidence of a proprietor of a cotton press in New Orleans, is very pertinent. He testifies, that he has known many instances, of cotton having been removed, on the order of the factor, without having been weighed. Cotton transferred by one factor to another, is seldom, or never weighed; and when shipped on planter’s account, seldom, or never weighed; or if weighed in one press, and transferred to another, it would be delivered in the latter one, without being weighed.

Keene, thus invested with the control, transferred it, on the books of the press, to Campbell, Rickarby Sf Co.; and this he did at the request of Simpson, who had bought the cotton, and had got an advance from Campbell ahd Rickarby. But B., W. Sf Co. say, we did not intend Keene should part with the cotton, until Simpson paid us the price. If this was so, why did they give Keene an order, absolute in its terms ? So far as the public was concerned, the order being absolute, rights acquired in good faith under it, cannot be disturbed. It is against well settled principles, to permit the secret instructions of a party to hi3 agent, to qualify the apparent absolute control and dominion with which he has thought proper to invest him.

Again: B., W, Sf Co. have no equity, but the naked fact, that they have not received the price of what they sold. They not only clothed Keene, and through him, Simpson, with the indicia of ownership, but they did so, under circumstances which ought to have warned them of the danger of dealing with Simpson ; for rumors, unfavorable to his credit, had reached their ears. Keene says, in his cross-examination by the plaintiffs, he had heard several reports, that Simpson was buying cotton beyond his means; that he had spoken to Simpson about these reports, and he had remarked to witness, that other parties were furnishing him with funds, and he had only a quarter interest in the shipment. He also says, he knows from his transactions with Simpson, that it was his habit to take advances from the houses through whom it was shipped. Again, he says, in consequence of cotton falling rapidly in Liverpool, he became apprehensive that the parties who were furnishing him with funds, might withdraw, or the party through whom he was getting advances, might fail. And again: witness consulted with Bradley, Wilson Sf Co., on the subject of these rumors, prior to the 27th May; that is to say, several days before they sold him the cotton in question. It is certain, that B., W. Sf Co. knew Simpson was in questionable circumstances, and it is reasonable to infer from the evidence, that he knew he would raise money to pay them, by advances from others.

I do not think, however, that in point of fact, B., W. Sf Co. intended, as between themselves and Keene, to make Keene a mere agent for the delivery of their cotton, upon payment of the money by Simpson. On the contrary, in giving him the control, they seem to have left matters to his discretion. Simpson had made other purchases of B., W. Sf Co., and Keene thus speaks of them, and of his own authority in these matters: “Witness told Bradley, Wilson Sf Co., whenever he bought cotton of them for Simpson, that he was buying for Simpson’s account.” “In his purchases from Bradley, Wilson Sf Co. for account of Simpson, he had no special instructions from Bradley, Wilson Sf Co., to enter the cotton to his own order, but was left to his own discretion in the matter. He had informed Mr. Wilson of the rumors he had heard, and the mode he had adopted. Mr. Wilson appeared satisfied, but gave him no instructions.” Simpson bought 3600 bales of B., W. Sf Co. upon the 21st May; and in one case, 911 bales were allowed to go on ship-board, before Simpson was called upon for payment. He gave them a check on account of its price, on the 7th June. It had been sold on the 31st May; was transferred on the black book of the press on the 4th June, and was on ship-board when the check was given.

Looking to all the facts of this case, I cannot but consider the plaintiffs as persons, who have been induced to advance Simpson money, upon the faith of property, of which he had substantially the apparent control, and the possession which Keene, at his request, transferred to them. I say possession, since a symbolical possession is, for the purposes of commerce, an actual possession.

B., W. Sf Co. have, on this occasion, done as others are too much in the habit of doing. It is quite too common here, to repose confidence in the buyer, and let him get the control of the merchandise, before the price is paid. Such a course of business, should not receive judicial countenance; it enables speculators to go largely into the market, without real means; clothes them with an undeserved credit, and has been a prolific source of litigation and fraud. The consequence of such a course of business is, that occasionally, some one must suffer. In equity, the loss ought to fall upon the party who, by his imprudent confidence, has enabled the wrong-doer to get a credit with innocent third persons, to which) upon the true, but hidden state of facts, he would not- be entitled.

It is said, however, that the advances were not, in legal contemplation, made on this specific cotton, but on the general credit of Simpson; or, as it was put in the oral argument, an advance on the promise of a consignment, is not an advance upon a consignment.

It is true, that a portion of the money was advanced, before a transfer of the cotton was made on the books of the press by Keene to Campbell and Rickarby, and the receipts of Simpson for the advances, do not recite the specific bales. One of them, that of June 5th, is “ on account of shipment to Liverpool per Epaminondasand the other, that of June 7th, is simply, “on account.” There is no doubt in my mind, however, that the first advance; was made upon the faith of the expected consignment of the cotton in question; and when the second was made, the transfer on the book of the press had intervened. There was no notice of B., W. Co.’s equity, nor any active intervention on their part, until after the whole amount of $24,000 had been paid to Simpson by the plaintiffs. I concur in what is said by the district judge, that although the advance be not simultaneous with the possession, the privilege attaches as soon as possession is acquired, in pursuance of the antecedent promise, and is effective where adverse rights are not in the mean time acquired. The cases he cites sustain this view. Turpin v. Reynolds, 14 L. R. 473. Powell v. Aikin, 18 L. R. 328. Whatever doubts we might have on the subject, if the question were res now, those cases have the force of precedents, and it would operate unjustly, to disturb them now. I am therefore of opinion, that the plaintiifs should have a privilege on the whole lot of cotton transferred to them on the books of the press.


source: Caselaw Access Project

author: Pbeston, J.

license: Public Domain

text:
    John Duncan et al. v. The State of Louisiana.
    The neglect of one officer of the State to do his duty, does not excuse the defalcation of another, or discharge his securities.
    The law authorizing the auditor of the State to issue a warrant of distress, is not in violation of the Constitution.
    APPEAL from the Third District Court of New Orleans, Kennedy,

      Isaac Johnson, Attorney General, for the State.
   By the court:

Pbeston, J.

On the 28th of June, 1849, the auditor of public accounts issued a warrant of distress against the plaintiifs, as securities of W. K. Stiles, for a large amount of money due by him, as tax collector, for the Fourth Representative District of New Orleans. The plaintiffs enjoined the execution of the warrant on various grounds, two of which the district court sustained, and the State has appealed.

The warrant was issued under the 63d sec. of the act approved the 3d of May, 1847, “ To provide a revenue for the support of the government of the State.” It prescribes that, on the defalcation of the tax collector, the auditor of public accounts shall charge such delinquent accordingly, and immediately after such delinquency shall occur, issue a warrant of distress, which shall have the force and effect of a writ offieri facias against such delinquent and his securities, directed to the sheriff of the parish where such delinquent may reside, or where his securities reside, or where property belonging to either maybe. The warrant enjoined was issued against the securities alone. The court held, that it was illegal, because not issued against the defaulter as well as the securities.

But the warrant itself shows, that one had been previously issued against Stiles ; that a small sum had been made, and that, as to the balance, no property could be found to satisfy it. The 4th sec. of the act approved the 24th of April, 1847, relative to the bonds of tax collectors and other public officers, prohibited the sale of the properly of the securities before that of the principal was discussed. This having been done by the previous execution, it was useless to issue a second against him.

In the next place, the 1st sec. of an act approved the 16th of March, 1848, required the tax collectors, in the parishes of Orleans and Jefferson, within the first five days of each and every month, to have their respective accounts audited and settled, for all taxes collected and monies received during the preceding month. The district court was of opinion, that as the law required a settlement every month, and that every time a delinquency occurred, a warrant should issue, no warrant could issue for any greater amount than one month’s deficit.

We held, in the case of the State v. Hardesty et al., securities of —— that the neglect of one officer of the State to do his duty, could not excuse the defalcation of another, or discharge his securities, and cited the highest authorities in support of the decision. We adhere to the opinion, without recapitulating the reasons.

And, for the reasons given in that opinion, if Stiles failed to take the oath required by the Constitution and laws from public officers, although it is not shown, or, if the auditor failed to advertise his defalcations, as required by the 35th sec. of the act to establish and regulate the treasury department, these omissions would not release the securities.

It is alleged, as a ground of injunction, that the collector was not entitled to collect the taxes upon trades, professions, licenses, &c.; and that the securities are not, therefore, liable for his defalcation as to these taxes. But the law clearly contemplates, that the collector should collect all State taxes; and the 44th sec. of the act provides, that he shall give bond for all taxes levied for State purposes.

The bond was not approved and accepted by the proper authorities on the 1st of May, 1848, as required by the statute, and, on that account, the securities allege that they are not bound. But, their principal made application for a mandamus to the Fifth District Court of New Orleans ; and that tribunal, after hearing the attorney general, determined that the bond was sufficient, and ordered the Recorder and Finance Committee of the First Municipality to approve the bond, and give him the certificate and documents necessaiy, to enable him to enter upon the duties of his office, which was done. The bond thus adjudged to be sufficient, and accepted, is not a nullity, but binds the parties.

It is contended by the securities, that the law authorizing the auditor of the State to issue a warrant of distress, is a violation of the Constitution, because it is the exercise of judicial power, by an executive officer of the government. We lately heid the contrary, in the case of Bordelon v. The New Orleans Towboat Company, 7 Ann. To the reasons and authorities cited, in support of that opinion, we refer, as conclusive in this case.

The judgment of the district court is reversed; and it is decreed, that the injunction be dissolved, and the appellees condemned to pay the costs in both courts.


author:
Preston, J.
      Edstis, C. J.

text:
    State v. Sarah Connor, f. w. c.
    The competency of a witness to testify, is restored when he has suffered the penalty of the crime of which he has been convicted.
    APPEAL from the First District Court of New Orleans, Lame, J.

      Isaac Johnson, Attorney General, for the State.

      Henderson and Field, for the accused.
   By the court:

Preston, J.

The appellant was indicted for perjury, convicted and sentenced. She has taken an appeal from the judgment rendered against her. The only ground of error assigned is, that the district court erred in admitting the .evidence of one Cammeyer, who had been convicted of swindling. He was convicted in 1841; was sentenced to one years’imprisonment, at hard labor, and, after suffering the punishment inflicted upon him, was discharged. The judge of the district court considered the objection to the testimony of Cammeyer, as affecting his credibility rather than his competency, and permitted it to be given to the jury for what it was worth. His reasons, embodied in the bill of exceptions, are thus expressed: “It is true that the witness was convicted and sentenced ; but it is also true that he served his term of punishment, thus restoring his competency if ever it was lost, however much his conviction may affect his credibility. The court has great doubt whether the conviction, for the offence of which the witness was accused, renders him incompetent at all, inasmuch as our law has annexed incompetency to testify to the crimes of peijury and subornation of peijury alone, which would reasonably lead to the conclusion that the Legislature intended to include no others in the same class. If it intended to include others, it would have mentioned them. If all others were to be included, it would not have specified the two particular offences.

The maxim inclusio unius, exclusio alierius est, is too general, and subject to too many exceptions in its application, to govern the construction of criminal statutes. It is therefore urged, that Cammeyer was a witness wholly incompetent to testify, on account of his conviction and sentence to punishment for an infamous offence.

If this were an original question, to be decided upon general principles, we could see no reason why the testimony of a convict, under sentence, should be excluded. Evidence is that which convinces the mind of the existence of a fact. The testimony of the basest of mankind may often be valuable in the investigation of truth. That of a convict, for an infamous crime, is excluded, on the ground that no credit should be given to what he proves. And yet, notwithstanding the stigma, much might be elicited from a convict, which would satisfy an intelligent and discriminating jury of facts which could not otherwise be pi'oved. There is no doubt that a fact in itself improbable, supported by such testimony, would not, upon the strength of it, obtain credence. It is in itself entitled to little weight, and it cannot be presumed that a jury would give it more weight than it deserved, unless we suppose that by the mere fact of being sworn as jurors, and being bound to examine with care and weigh with caution all the evidence brought before them, would divest the persons of whom the jury was composed, of all that common sense and discrimination which characterizes each individual in the ordinary pursuits of life. Satan himself might be believed when his assertions were in themselves probable, and were corroborated by the testimony of others, though, if such assertions stood alone and were contrary to our general observation of the nature of things, they would obtain no credit.

The whole tendency of modern jurisprudence, as to evidence, is to lay every thing before a court and jury which may elicit truth, trusting to their wisdom and intelligence to give only the weight it deserves, to that which is subject to suspicion and objection. In conformity to this view, have been most of the modern decisions and statutes upon the subject of evidence. The interest of a person in a suit, or the character he bears, goes to his credit rather than to his competency. More than thirty years ago Mr. Chi tty observed, in relation to the very subject before the court: “On principle, it would seem that in general the objection to a witness, on account of his having committed a crime, particularly if not perjury, ought rather to affect his credibility than his competency, for though a person may be proved on his own showing, or by other evidence, to have committed a crime, it does not follow that he can never afterwards feel the obligation of an oath.” Vol. 1, ed. 1819, p. 490.

Still, under the known principle of the common law, we should not disapprove of the rejection of the testimony of a person laboring under a sentence of conviction, of a crime belonging to the class embraced under the terms crimenfalsi, as incompetent, especially as our code, in civil cases, retains the principle “ that the competent witness is not one of those whom the law deems infamous.” But, for myself, I do not say that I would reverse a judgment, in a criminal case, because such testimony was admitted, with all due caution, by the court; that it was liable to every unfavorable presumption arising from the want of credit on the part of the witness. The reason of the rules established in early times, when juries were ignorant and illiterate, which excluded much evidence from their consideration, ceases to have much force now that they are' greatly improved in their composition, by learning and intelligence, and therefore there is much reason for the relaxation of the rules themselves.

It is not necessary to say more in this case, in relation to ’evidence objected to, on account of the infamy of witnesses generally, because, if the opinion of the district court, that the competency of the witness was restored by suffering the punishment to which he was sentenced, the subject we have alluded to, rather than fully discussed, becomes unimportant.

Whoever reads the section of Starkie, Phillips, Chitty, or any other elementary writer on evidence, in relation to the restoration of the competency, as witnesses, of persons who had been rendered incompetent by reason of crimes ; by being admitted to the benefit of clergy, or undergoing a punishment equal to clerical purgation, by pardon, by the reversal of the judgment or other means, will see that there was no reason or -consistency in the common law on the subject, as modified by the statutes of England, prior to the year 1805, when we adopted the rules of the common law as to evidence in criminal cases.

All tbe learning in relation to the restoration of competency, after conviction of an offence which admitted of the benefit of clergy, by purgation before the ordinary, it is of course out of the question to consider. And yet all criminals who could read, and for almost all crimes, were entitled to the benefit of clergy. This description embraces almost all criminals who are brought before our courts, in modern times almost all being taught to read. They might therefore be restored to competency by purgation, the^J process of which, an author observes, almost always involved perjury on behalf of both the criminal and his compurgators. By perjury and subornation of perjury, therefore, they could render themselves competent to testify.

By a statute of Elizabeth, the convict could be restored to competency by being burnt in the hand. Thus, an infamous mark of his infamy removed it.

As to pardons, the king could have the testimony of convicts when he wanted it, and excluded their testimony, by refusing his pardon, when it did not suit the purposes of his prosecution. And Phillips and Amos observe in their Treatise on Evidence, “ It has happened that, for the purpose of a single prosecution, no less than five convicts have been pardoned, whereas if such evidence could be used without a pardon, it would be more free from suspicion, and the ends of justice would be more effectually attained,” p. 20.

Even in the United States it has been held, that if the witness was convicted in the State where his testimony is offered, the conviction renders him incompetent ; but if in a sister State, the conviction does not affect his competency. Such unreasonable and inconsistent, we might almost say absurd, results, must flow from an erroneous source. We have, therefore, examined with as much care as the remainder of the term would admit, some of the elementary writers, and also decisions of the English courts upon the question of the means by which a person rendered incompetent as a witness, by reason of conviction and sentence for an infamous crime, may have his competency restored. We find much confusion in the decisions, and in the reasoning upon the subject; distinctions are made where no difference really exists; and, cases falling under the same general principles, have been decided, in contradiction to each other. The law was unsettled by the courts, except so far as all agreed, that a pardon restored the person in such manner as to make him a competent witness. Now, this discharge from the punishment, could no more change the character of the convict, than his sufferance of the punishment deemed adequate to his crime.

In this condition of uncertainty as to the law, the 9th statute of George IV, chap. 32, was passed. This statute does not pretend to alter or amend the common law. It was passed because, in its own words, it was deemed expedient to remove all doubts respecting the civil rights of persons convicted of felonies,<not capital, who have undergone the punishment to which they have been adjudged. It must, therefore, be regarded as an exposition of the common law, by the highest authority; and it makes the suffering of the penalty equally efficacious in restoring competency, with the pardon of the crown. We think, therefore, it was the common law of England, as modified by statute in 1805, that the suffering of the punishment of crime restored the convict to his civil rights.

The humane principle must prevail in our criminal code. Our statutes prescribe penalties, which, being suffered, no other can be inflicted. And yet it would be the greatest possible additional punishment to subject a man, who had committed an offence and suffered the penalty,' to the still further and great and cruel punishment of not being able, effectually, to complain when robbed of his property, deprived of his liberty, or his life in danger, because neither his oath or testimony would be taken to secure protection or redress. He should be permitted to say, I have expiated my offence by suffering all the law imposed upon me for my correction and an example to others; I should not be subjected to still greater punishment.

We are of opinion that there is no error in the judgment of the district court. It is affirmed, with costs.

Edstis, C. J.

The time allowed for the consideration of this cause, has not enabled me to examine all the views presented in the opinion of Mr. Justice Preston, but I am satisfied with the correctness of his conclusion as to the admissibility of the testimony of Cammeyer, and concur in the affirmance of the judgment.

Rost, J., concurred with the Chief Justice.


author: Pheston, J. Eustis, C. J.

text:
    The State v. Roger.
    The prisoner applied to the Supreme Court for a writ of habeas corpus, on the ground that there was no prospect whatever of having his appeal tried during the present term ofthe court, or earlier than the November term thereof The court directed an immediate trial, and held, that writs of habeas corpus are undoubtedly matters of right; but courts and judges are hound to do, in relation to them, what is right between the prisoner and the public. The prisoner ought not to he bailed, on the ground that he cannot have an immediate trial, when the court is ready and willing to afford him that remedy.
    The idea, that where a writ of habeas corpus is issued, there is an abstract right to immediate action upon it, without regard to circumstances, is wholly untenable.
    The Supreme Court will, if possible, avoid coming in conflict witn the district courts, by writs immediately directed to them to perform their duties.
    When a judge delivers Ms opinion to the jury, on facts, it ought to be given as a mere opinion, and not as dictation; the jury should he left to understand clearly, that they are to decide the fact on their own view of the evidence, and that the judge interposes his opinion to aid them in the conscientious discharge of their responsible duties.

    APPEAL from the First District Court of New Orleans, Buchanan, J-

      Isaac Johnson, Attorney General, for the State. ■

      See an Act “ To restrict the charge of the judge, in every criminal case, to an opinion on the law.” Acts 1853, p. 249.

   By the court: (Slidell, J., absent.)

Pheston, J.

The prisoner was accused of murder, convicted of manslaughter, and took an appeal, which was made returnable to this court on Monday, the 28th of this month.

On the 25th of the mqnth, he presented a petition for a writ of habeas corpus, for the purpose of beibg bailed. His application was based mainly on the ground stated in his petition, that “he is informed, and believes, that there is no prospect whatever of having his appeal tried during the present term of the court, or earlier than the November term thereof.”

This court, being in session, and criminal business being entitled to preference over all other business, announced their readiness to hear the cause, directed it to be fixed for trial on the return day, and that the attorney general and counsel for the prisoner should be notified, as the trial of the case would supercede the main ground upon which the application to be bailed was based.

Although bound to grant a writ of habeas corpus to bail, even after conviction, as decided by this court in LonguiorÜCs case, yet we exercise the power, as intimated in that case, with reluctance, because, in doing so, we are obliged to hold a law of the General Assembly to be unconstitutional; because this court was divided in opinion; and because the district court holds a contrary opinion; and, because we are all sensible of the evils to which the exercise of the power may lead. It is our duty, therefore, to avoid the exercise of the power, if it can be done consistently with the rights of the applicants. We thought it could, in this case, by affording him an immediate trial, which we directed.

The counsel of the accused appeared on the day assigned for the trial, and insisted on his right to be bailed, uncontrolled by any circumstances whatsoever, ■tyi-its of habeas corpus are undoubtedly matters of right; but courts and judges are bound to do, in relation to them, what is right between the prisoner and the public. The prisoner ought not to be bailed, on the ground that he cannot have an immediate trial, when the courtis ready and willing to afford him thatremedy. The State, the appellee, was ready; and the appellant is always presumed to be ready, until he makes the contrary appear in a legal manner.

The idea, that when a writ of habeas corpus is issued, there is an abstract right to immediate action upon it, without regard to any circumstances, is wholly untenable. It will be seen in 3 Burrow’s Reports, that certain prisoners in England obtained a writ of habeas corpus, on the ground, that they had been illegally arrested. It was rendered probable, on the return of the writ, that they were convicts and fugitives from justice. The court, instead of releasing them, ordered a trial, to ascertain whether they were convicted felons or not, and having identified them as such, ordered them to be executed, under their former sentence, instead of being released, because oftheir subsequent illegal arrest. So that proceedings, under this writ, must be such as the circumstances require. Substantial justice must be done between the applicant and the State.

An application was, some time since, made by the prisoner to this court, for a mandamus to the First District Court of New Orleans, in which he was tried, to sign a bill of exceptions, intended to show that the judge, in sentencing the prisoner, addressed him entirely in the French language, and used that language in passing the sentence on him; and yet, that the sentence was entered upon the minutes, in the English language, by the clerk. The object seemed to be to raise the objection, that no legal sentence had been passed upon the prisoner. The case had been tried under the direction of the judge of the Fifth District Court, and the sentence pronounced by him, in the absence of the judge of the First District Court, on account of sickness, and the latter had declined to sign the bill of exceptions. It does not appear that any objection had been made to the mode of passing sentence by the judge who presided, or application to him to sign a bill of exceptions.

This court declined issuing the writ of mandamus, but informed the counsel, through their clerk, indeed stated in open court, that the matter would be eonsidered on the trial of the case, and, if deemed material, means would be afforded, if possible, to secure the accused the benefits of the facts alleged by him.

Taking it for granted, generally, that the district courts will perform their duties, we deem it wise to avoid, if possible, coming in conflict with them, by writs immediately directed to them, to perform their duties. We did not think there was any thing in the application of the accused which required the extraordinary interposition of this court, by a writ of mandamus. The English was the native language of the judge who tried and sentenced the prisoner. The native language of the prisoner was French. We have no doubt, admitting the facts stated in the application, that the judge used the French language in explaining to the accused the laws, under which he was about to pass sentence upon him, and the necessity of enforcing them by punishment, and passed sentence in the same language, for the advantage and satisfaction of the accused, and to afford him the best possible means of knowing and understanding the proceedings and final judgment against him. The clerk recorded the sentence in the English language, as he was bound to do by the Constitution of the State. It is known to this court, that the French and English languages are equally familiar to him, and if they were not, that there is a translator provided for the court. We have no doubt he recorded the sentence correctly, and there is not even a suggestion to the contrary. Besides, if there was any injury in the proceeding to the accused, the objection of his counsel should have been made, and the bill of exception taken, and efforts made to remedy it before the judge who tried the case, and at the time it occurred. But, we think, no injury was done to the accused; and, organized as this conrt is, loaded with business almost beyond the power of performance, it is indispensable to economise time, and to confine our labors to matters of substantial importance. We consider appeals allowed in criminal cases for the re-examination of substantial questions of law, which may have materially affected the decision of the case.

Nevertheless, we would have been glad to have heard the learned and talented counsel of the accused on this matter, as well as the bill of exceptions, and other questions raised in the record. But he did not deem it proper to afford the court the benefit of his counsel, in consequence of our determination to pass upon the case at this term, unless good cause was shown for a continuance. We do not consider the absence of one of his able counsel sufficient. Questions of law alone are to be examined here, and we concur fully in what was stated at the hearing, that the counsel present was as able to examine these questions as this court. The attorney general submitted the case, and we have been compelled to perform our duties to the State and public, to the best of our judgment, without that aid.

On the bill of exceptions, the Chief Justice has prepared the following opinion, in which we all concur :

Eustis, C. J.

In the charge to the jury the judge stated that, in the court’s opinion, an offence had been committed by the defendant Roger, but whether that offence was murder or manslaughter, the court declined to give any opinion; to yvhichthe defendant, by his counsel, excepted. Whereupon the court further stated, that it had summed up the evidence and given its opinion, but recognized the right in the jury to decide both upon the law and the evidence, and, of course, they were not bound by the opinion of the court with regard to either.

The result of our inquiries on the subject presented by this bill of exceptions is, that there is no fixed rule, on examining the extent to which a judge, in his charge to the jury, may express his opinion, in relation to the truth or weight of testimony. It is manifest, that if a judge abuses the discretion reposed in him, and not content with expressing his opinion, undertakes to dictate to the jury on questions of fact, the verdict will be set aside, and a new trial granted. And, when a judge delivers his opinion to the jury on facts, it aught to be given as a mere opinion and not as dictation, and the jury should be left to understand clearly that they are to decide the fact on their own view of the evidence, and that the judge interposes his opinion to aid them in the conscientious discharge of their responsible duties. Cases have occurred before us, in which we have found great difficulty in drawing the line prescribing the duty of the judge on questions of fact. See the cases of the State v. Green, and State v. Chandler. Chief Justice Parker, a judge of great learning and experience in criminal cases, thus speaks in the case of the State v. Child, 10 Mass. Rep.

But it will be, objected that the judge may have said many things tending, to make the jury incline to one side or the other. This would raise the question, whether a judge may reason upon the facts; and, if he intimates to the jury his own opinion of the evidence, whether this shall be cause for setting aside the verdict. We know of no rule requiring the judge to conceal his opinion. He is to comment upon the evidence. Is he to do it by merely stating that one witness says this thing, and another says that 1 Has he not power to say, this evidence is weak, and that evidence is strong ? For myself, when the evidence on one side is nealy balanced by counter evidence, I endeavor to leave it to the jury to decide which scale preponderates; but, if the evidence on one side is strong, compared with that of the other side, I think it my duty to make the jury comprehend that it is so. Turman v. Howard, 3 Marshall, 384. Conner v. State, 4 Yerger, 137. Sneed v. Breath, 1 Hawks, 300. Gordon v. Taber, 5 Vermont Rep., 183. Burt v. Gwinn, 4 Harr. and Johnson, 507. Roper v. Stone, Cooke, 490. Matson v. Fry, 1 Watts, 433. Governor v. Shelby, 2 Blackford, 26. Slatter v. Latspan, 2 Watts, 167. Graham, on new trials, 310, et seq.

There is nothing before us which induces the belief, that the judge attempted, unduly, to bias the jury, or that his estimate of the weight qf evidence was not just; and, we find that he expressly recognizes the right of the jury, to judge for themselves, and to determine on the facts, without being bound by the opinion of the court.

The law presumes intelligence on the part of juries; and, any improper interference with their province, on the part of the judge, is more likely to make them find a verdict against his opinion, than in accordance with it.

Undoubtedly, the manner of instructing the jury, sometimes, has an undue influence on the verdict, but it results from an imperfection of the system.

We think, therefore, that there is nothing in this bill of exceptions, which should authorize us in setting aside the verdict.

In the motion for an arrest of judgment, it is stated that the indictment is defective. We have examined it with care, but are unable to discover essential defects.

There being, then, a good indictment, a verdict of a jury finding the prisoner guilty of manslaughter, and no cause shown in arrest of judgment, we are of opinion that the judgment of the district court, as spread on the record, should be affirmed; and, by reason of the premises, adjudge and decree, in consideration of the verdict, and of the second section of an act for the punishment of crimes and misdemeanors, and other supplementary acts, approved the 20th of March, 1818, that the said Augustin V. Roger, for his offence of manslaughter, as found by the verdict, be sentenced to ten years’ hard labor in the State penitentiary, to commence the 22d of May, 1852, and to pay a fine of one thousand dollars, and the costs in both courts.


author: Slideli, J. SiiiDEii,, J. Preston, J.

text:
    Menard and Vigneaud v. J. B. Scudder, and Nolan Stewart, Executor of McCalop.
    A safe rule of construction of a guaranty is, to give the instrument that effect, which shall best accord with the intentions of the parties, as manifested by the terms of the guaranty, taken in connection with the subject matter to which it relates ; — neither enlarging the words beyond their natural import in favor of the creditor, nor restricting them in aid of the surety.

      From the nature and purposes of mercantile guarantees, and the circumstances under which they are usually prepared, it seems improper to subject them to the standard of critical nicety.
    A letter in tho following words — “I do recommend my ññend, Mr. J. B, Scudder, of the parish of Bast Baton Rouge, a planter, and any funds that he may raise, or acceptances, in case he does not pay, I feel bound to pay. James McCalop” — contemplates a continuing guaranty.
    In the case of a prospective and continuing guaranty, the creditor must not only show, that he advanced his money, or parted with his goods, on the faith of the letter of guaranty, but that ho also seasonably notified the guarantor, that he accepted the guaranty, and intended to act upon its security. But express and formal notice, emanating directly from the creditor to the guarantor, is not indispensable. If the fact of acceptance is seasonably brought to the knowledge of the signer in any other way, and he acquiesces by silence, it is sufficient.
    The death of the guarantor, without notice or knowledge of the fact on the part of the creditor, dees not defeat the creditor’s right to indemnity for advances made in good faith, after the event.
    APPEAL from tlie District Court of the of East Baton Rouge. This cause was tried by a jury, before Burk, J.

      Q. S. Lacey and T. G. and P. H. Morgan, for the plaintiffs.

      R. H. Marr, Cyrus Ratliff, and J. M. Elam, for defendants.
   By the court:

Slideli, J.

In this action, the plaintiffs seek to recover from Scudder, and also from the succession of McCalop, by reason of a letter of guaranty signed by him, a sum of $19,864 03H, being a balance, exhibited by an account annexed to the petition, arising from supplies furnished for the use of Scudder's plantation ; monies advanced and expended for him at his request, upon accommodation acceptances, accommodation endorsements, orders, &c.

There was a verdict for the plaintiffs, against McCalop's estate, for the sum of $15,738 03, and the executor has appealed.

The letter of guaranty, upon which the claim is made, is in these words: “ Baton Rouge, December 4, 1849. I do recommend my friend, Mr. J. B. Scudder, of the parish of East Baton Rouge, a planter, and any funds that he may raise, or acceptances, in case he does not pay, I feel bound to pay. James McCalop."

There is no doubt, this instrument contains a proposed contract of guaranty. It is not a mere recommendation. With the recommendation, is cumulated the declaration : “ any funds that he may raise, or acceptances, in case he does not pay, I feel bound to pay.” The common sense of this declaration, is a promise to indemnify; a guaranty to those who might lend him money, or accept for him. The proposition that this instrument was a mere expression of a feeling of moral duty, and did not contemplate a legal obligation, is not worthy of serious consideration. As the letter was intended to hold out inducements to others, to part with their money, and was calculated to create a just appreciation of indemnity, good faith requires, that such expectations should be fulfilled; and a breach of good faith, in such case, to another’s detriment, the law will not tolerate.

But a graver question is presented, when we inquire what is the extent of the legal responsibility contemplated by the writer. Was it intended as a limited, or as a continuing guaranty ? Was it a guaranty, intended to attach only to such aid, by way of loan or acceptance, as should be given to Scudder, on the presentation of the letter, or was it intended to cover such transactions with him from time to time, as the necessities of the one, and the convenience of tho other, might dictate?

The solution of this question is not free from difficulty, and might, perhaps, be solved in either way, according as one might choose to adopt, in the extreme of the conflicting doctrines which are to be found in the adjudged cases. Some of the authorities advocate, in favor of the surety, a strict rule of construction, and seem to demand, that it should appear unequivocally, that it was the purpose of the guarantor, to guarantee the payment of debts contracted from time to time. See Melville v. Hayden, 3 Bar. and Ald., 593. Opinion of Best, J. Cremer v. Higginson, 1 Mason, 336. Whitney v. Groot, 24 Wendell, 84.

On the other hand, there are authorities which countenance the doctrine, that a large and liberal construction is to be given, in such cases, in favor of one claiming rights under such guaranty, and holding it to be the duty of the guarantor, to limit his guaranty expressly to a single dealing, if he would avoid a further responsibility. See Mason v. Pritchard, 12 East. 227. Hargrave v. Smee, 6 Brigham, 244. Durmond v. Presman, 12 Wheaton, 518. Lawrence v. McCalmont, 2 Howard, 450. Lee v. Dick, 10 Peters, 493. Opinion of Lord Ellenborough, cited in Smith’s Mercantile Law, 386.

The true doctrine, we are inclined to believe, lies between these extreme opinions; and we think it was very judiciously observed by Dewey, J., in Massey v. Raynor, 22 Pick. 228, that a safe rule of construction would be, to give the instrument that effect, which shall best accord with the intentions of the parties, as manifested by the terms of the guaranty, taken in connection with the subject matter to which it relates, and neither enlarging the words beyond their natural import, in favor of the creditor, nor restricting them in aid of the surety. See also Bell v. Bruen, 1 Howard, 187.

In furtherance of this rule of construction, we would add, that for the nature and purposes of mercantile guaranties, and the circumstances under which they are usually prepared, it seems improper to subject them to the standard of critical nicety, which might, with more reason, be applied to instruments usually drawn by professional men. Mercantile guaranties are usually written by the guarantor himself, and are often brief in their language, and inartificial and loose in their form. And in such cases, a nice and technical construction, might rather confuse, than aid the mind, in its search for the true intentions of the writer. We should endeavor, if possible, to put ourselves in the condition of the parties, and so seek to ascertain, from the words used, what were the ideas which existed in the writer’s mind, and which he desired to convey to the person, or class of persons, to whom the letter would probably be exhibited; and we should also consider, what effect he ought reasonably to expect the words used, would produce in the minds of such persons. See also Civil Code, arts. 1948, 1897.

Now, McCalop was a planter. His friend, Scudder, whom he recommends, was a planter. He so describes him in the letter. He may be reasonably supposed as having, in his mind, the usual course of business, and the usual wants of a planter; the usual mode in which persons, in that avocation, seek for pecuniary facilities, and in which merchants extend them. He desires to facilitate Scudder in getting commercial aid, and he gives him the letter for that purpose. The words are adapted to the purpose: I recommend him. His business is that of a planter. As such, he wants to raise money. He wants some one to aid him, by cash advances, or accommodation acceptances. If any one will assist him in this way, I will pay them if he does not. He does not say, I will guarantee a single loan, or a single acceptance; but he speaks in the plural; any funds he may raise, or acceptances.

Considering the business of the person, whom he proposed to benefit, the nature of the business to be transacted, and the class of the community to whom it was reasonable to suppose the letter would be exhibited, we are led to the conclusion, that a continuing guaranty was contemplated by McCalop, and that it would be so understood by a Louisiana merchant.

We have looked, with much care, into the decided cases, and find the prevailing doctrine to be, that, in the case of a prospective and continuing guaranty, the creditor must not only show that he advanced his money, or parted with his goods, on the faith of the letter of guaranty, but that he also seasonably notified the guarantor that he accepted his guaranty, and intended to act upon its security. As the subject is one of much commercial importance, it is proper to refer to some of the principal cases which bear upon it.

In Russell v. Clark’s Executors, 7 Cranch, 69, it appeared that Clark and Nightingale, of Providence, had written to Russell letters, introducing and recommending their friends, Murray 8f Co., of New York, who had in contemplation purchases of merchandise in Charleston. Judge Marshall, in giving the opinion of the court, considered the letters as recommendatory merely, and not constituting a contract, by which Clark and Nightingale undertook to render themselves liable for the engagements of Murray 8f Co. to Russell; but, he observes, had it been such a contract, it would certainly have been the duty of the plaintiff, to have given immediate notice of the extent of his engagements.

In Cremer v. Higginson, 1 Mason, 340, which was the case of a letter of credit, specially addressed, Story, Justice, held that it was clearly the duty of the plaintiff to notify the defendants that reliance was placed on the guaranty.

In Edmonston v. Drake and Mitchel, which was the case of a letter of credit, specially addressed, Chief Justice Marshall observed : It would, indeed, be an extraordinary departure from that exactness and precision, which peculiarly distinguish commercial transactions, which is an important principle in the law and usage of merchants, if a merchant should act on a letter of this character, and hold the writer responsible, without giving notice to him that he had acted on it.

In the case of Douglass v. Reynolds, 7 Peters, 117, Douglass, and others, had addressed a letter to Reynolds, Byrne Sf Co., in which they said, their friend, During, to assist him in business, might require R., B. <$• Co.’s aid, from time to time, either by acceptance or endorsement of his paper, or advances in cash. And they bound themselves to be responsible to R., B. 4' Co., at any time, for a sum not exceeding $8000. The court considered this a continuing guaranty, and held, that it was necessary, to entitle R., B. 8f Co. to recover on the letter, that they should prove, that notice had been given, in a reasonable time after the letter had been accepted by them, to the guarantors, that it had been accepted.

In Lee v. Dick, 10 Peters, 492, the question of necessity of notice of acceptance of the guaranty, arose under a letter addressed in Tennessee, by Lee, to N. Sf J. Dick Co., of New Orleans, in which they said, Nightingale and Dexter wish to draw on you at six or eight month’s date. You will please accept their draft for $2000, and I do hereby guarantee the punctual payment of it. The court observed, the question is, whether the plaintiffs were bound to give notice to the defendant, that they intended to accept, or had accepted and acted upon this guaranty. It is to be observed, that this guaranty was prospective; it looked to a draft thereafter to be drawn; and this question is put at rest by the decision of this court. They cited Russell v. Clark’s Executors, 7 Cranch, 91; and Edmonston v. Drake and Mitchell, 5 Peters, 624.

So, in Adams v. Jones, 12 Peters, 213, it was held, that upon a letter of guaranty, addressed to a particular person, or persons generally, for a future credit to be given to the party in whose behalf the guaranty is drawn, notice is necessary to be given to the guarantor, that the person crediting has accepted or acted upon the faith of the guaranty.

• See also Wilds v. Savage, 1 Story, 32. Backman v. Hale, 17 Johnson, 140. Bank of Illinois v. Sloo and Byrne, 16 L. R. 542. Cremer v. Higginson, 1 Mason, 340. Massey v. Raynor, 22 Pickering, 228. Norton v. Eastman, 4 Greenleaf, 521.

In citing the foregoing authorities, we do not wish to be understood as adopting them in their entire scope. Some of the rules which they enunciate have been, in subsequent decisions, qualified or abandoned; but so far as they inculcate the necessity of notice of acceptance, in a case like the present, to which case we desire to confine our opinion, we believe they have commanded a frequent concurrence in American courts, and we do not doubt their correctness. For, where the letter of guaranty is addressed to the public at large, where it is prospective, and to attach upon future transactions, where it is unlimited in amount and indefinite in duration, and is by its nature subject to recall, it seems manifestly just that the guarantor should be entitled to notice of acceptance, within a reasonable time, from the person who undertakes to act upon its faith. Such notice is material and important for many reasons. It enables the guarantor to know in whose favor the guaranty has attached or is about to attach; to form an idea of the probable nature and extent of his liability; to appreciate the necessity of vigilance on his own part; to avail himself, when necessary, of the appropriate means in law and equity, to protect himself with regard to liabilities which may Have accrued, and to arrest their future creation by a recall.

We have not overlooked the fact, that the late decisions in New York (see 24 Wendell, 35, 3 Comstock,) conflict with this opinion, but we think the weight of authority .and argument presented by the cases cited, preponderates in its favor.

We come now to the inquiries, whether McCalop had reasonable notice of acceptance of the guaranty by the plaintiffs. And, upon this point, we premise that express and formal notice, emanating directly from the creditor to the guarantor, is not indispensable. If the fact of acceptance is seasonably brought to the knowledge of the signer, in any other way, and he acquiesces, by silence, it appears to us sufficient. C. C. 1805, 1812, &c. Train v. Jones, 11 Vermont, 444.

There is no express evidence of notice in the present case. It rests upon circumstantial evidence alone, and this branch of the cause is certainly not free from difficulty. It presents another instance of that looseness with which commercial business is conducted in this State; a'looseness which is the fruitful parent of litigation, and a source of extreme embarrassment to our tribunals, who are often called upon to apply the principles of commercial law to transactions in which the actors have disregarded that method, exactness and forecast, which ought to distinguish commercial dealings.

It is contended by the plaintiffs, that notice may be inferred from the following circumstances, exhibited by the evidence, and which are thus stated and commented upon in the argument of their counsel :

«I. Prom the fact that Menard and Vignaud had previously been the merchants of Scudder, McCalop could well presume, from that circumstance, that Scudder had given the letter to his old factors.

“II. From the circumstance that M. and V. were the accommodation acceptors and endorsers of the joint paper of McCalop and Scudder, given for the benefit of the latter.

“III. From the connection and intimacy which existed between Scudder and McCalop. The testimony proves that Scudder had married a relative of McCalop; that the latter had gratuitously raised a heavy mortgage, which he held upon the property of the former, and that McCalop had placed in the possession of Scudder an unlimited letter of credit; and, with these facts standing prominently forth, can we for a moment presume that Scudder did not frankly and promptly inform his friend and benefactor, in whose hands he placed the letter of credit? At least, is not this a question of fact, properly submitted to the jury ? And the jurors having, by their verdict, found in our favor upon that question, can this court feel authorized to reverse the finding upon that point.”

The facts thus generally stated, are certainly quite cogent, and they do not loose their force by a more minute and detailed examination. For example, it appears that on the 8th January, 1850. a few weeks posterior to the date of the letters of guaranty, Scudder drew, at Baton Rouge, two drafts to the order of and endorsed by McCalop, who was an accommodation endorser, at eleven and twelve months, for $2000 and $2500, upon Menard and Vignaud, which were accepted by them a day or two afterwards, for the accommodation of Scudder, and being thus accepted were put, by the acceptors, into the market in New Orleans and discounted. The proceeds of discount were put to the credit of Scudder, in account current, on the 11th January, 1850, and they were paid at maturity, to the holder, by the acceptor. Tested by technical rules, applied to the face of the instrument, and without thefassistance of surrounding facts, this bill transaction would not aid the plaintiffs; but, considered with reference to the true relations of the parties to the bills, and the irregular but well known course of dealing between our factors and planters, by which the factor raises money for the planter, through his own accommodation acceptances of the planter’s bills, these transactions become very significant, and can hardly be reconciled with any other hypothesis than that McCalop knew the purpose of the drafts, and thathis guarantee hadbeen or would be presently used to obtain for his friend the desired accommodation. Again, on the 8th February we find Menard and Vignaud endorsing and getting discounted in the New Orleans market, for the accommodation of Scudder, his note dated Baton Rouge, January 27. 1850, at twelve months, for $4500, endorsed by McCalop, which was taken up, after protest, by the plaintiffs. On the 18th April, 1850, the plaintiffs again accepted a draft of Scudder, endorsed by McCalop, for $5000, at four months. Uther circumstances of like character are shown by the record, but it is unnecessary to state them in detail.

Now, the letter on its face indicates that Scudder was in need of accommodation. It was a letter given to be used for that purpose, and as the subsequent acts of McCalop connect him so palpably with the efforts of Scudder to obtain accommodation from the plaintiffs, and the defendants have not shown any facts which could have tended to create an idea in McCalop’s mind, that the letter of the 4th December had been used elsewhere, we are naturally led to the conclusion that he was well acquainted with the direction it had taken. The same circumstances, and the great intimacy between McCalop and Scud der may account for the omission, on the part of the plaintiffs, to address him a formal letter of acceptance.

It is said the precise time when the letter came into the possession of the plaintiffs does not appear. It is undisputed that it was in their possession in the early part of April, 1850, after which period important advances were made; and the circumstances of the case point strongly to the inference that it was exhibited to them personally, after its date. That inference was drawn by the jury, and the defendant asks with a bad grace for a reversal of the verdict on that score, having opposed and succeeded in excluding (erroneously, we think,) testimony which would have given more precision to this matter.

Where a guaranty has been accepted, and the guarantor knows the facts, notice from time to time of the advances actually made, appears in general to be unnecessary. See Wilds v. Savage, 1 Story, 33.

It is said that although McCalop died on the 9th July, 1850, matters wenton in the same way as before, until some months after his death, when the account terminates; and that advances after his death should 'be stricken from the account, so far as McCalop’s estate is concerned. Upon inspection of the account we find there were some advances subsequent to 9th July on the one hand, and remittances on the other; and, perhaps, upon a different showing the subsequent remittances, there being no express appropriation at the time, might be applied, quoad the guarantor, to the antecedent indebtedness of Scudder, which would result in some reduction in the appellant’s favor. But as the case stands, upon the evidence, we do not feel authorized to disturb the verdict.

A guaranty like the present, we understand, is countermandable by the guarantor so as to arrest his further liability after notice; and it may be that the death of the guarantor would operate a revocation after notice of the death, or knowledge of the fact brought home to the creditor. But so far as we may judge from the analogies of the law, the mere death, without notice or knowledge, ought not to defeat the creditor’s indemnity for advances, made in good faith, after that event. See the article 3001 of the Civil Code as to acts done in good faith, by an agent, after the death of his principal. See also Troplong Du Contrat de Societé, No. 903. Utilitatis porroreipublicte máxime circa commerciorum libertatem versatur. Nihil autem est quod exercendis eommerciis et propagandis tantopere prosit, quantum si publico et bonfi fide contrabentes sciant se certo contrahere, Comm, de Favre (L. 24, § 1, D. de Minoribus.) Cited by Troplong, note No. 903, supra. '

The judgment of the district court is affirmed, with costs.

An application was made for a re-hearing, when the court determined to reconsider the case on some of the points, and made the following memoradum :

SiiiDEii,, J.

Upon the principal matters embraced in this cause, the opinion of the court, as hitherto pronounced, remains unchanged. But we have concluded to reconsider so much of the case as concerns the alleged indebtedness of McCalop, accruing after his death. This reconsideration is allowed in consequence of the impression entertained by a portion of the court, that knowledge, by the plaintiffs, of McCalop’s death, immediately, or soon after that event occurred, may be inferred from the evidence.

In the reconsideration of this branch of the cause, it will be proper for counsel to discuss certain questions of law, which it was not necessary, positively, to decide in the absence of proof of notice or knowledge of the death.

The attention of counsel is therefore invited to the following points, not excluding any others that may be deemed ¡pertinent to the case so far as opened.

I. Does the death of the writer of such a letter of guaranty operate an implied revocation as to future transactions?

II. If so, at what period does such revocation take effect ? From the date of the death, or the date of notice to, or knowledge by the creditor ?

III. Is the evidence in this cause sufficient to establish, with reasonable certainty, such notice or knowledge, and authorize a reversal of the verdict of the jury?

IV. If so, what application is to be made of subsequent remittances or payments ?

V. Present statements of balance of account, according to the views of counsel, so as to enable this court to act definitively in the cause, if possible, and not remand.

Same Case — On a Re-hearing.

By the court:

Preston, J.

After very able and elaborate arguments in this case, we came to the conclusion, that the executor of James McCalop was liable to the plaintiffs, on his letter of credit in their possession, in favor of John B. Scudder, dated the 4th of December, 1849. We inferred a knowledge as to McCalop of its acceptance, from the testimony, the relations of the parties, their proximity of residence, and the intrinsic character of the plaintiffs’ account against the defendants.

McCalop died on the 9th of July, 1850, but the account was continued until the 31st of January, 1851, and the balance to the last date is claimed. But the power of Scudder to raise, and of the plaintiffs to furnish funds, on the credit of McCalop, ceased as soon as his death was known to them.

From their relations, residence, the distinction of the deceased as a planter and landholder, his note as a citizen, and the evidence generally, we infer, that his death was known to the plaintiffs, immediately after it occurred.

The balance due at the death of McCalop, is all that the plaintiffs can claim from his executor; and all payments subsequent to that event, his executor has a right to impute on that balance, no imputation having been made by Scudder.

A cash balance existing against Scudder, when the letter of credit was given, cannot affect the result. It is extinguished ; Scudder having acknowledged the plaintiffs’ account, by which it was merged in account current.

The debit side of Scudder's account when McCalop died, amounted to $43,099 83. The whole payments made by Scudder before suit, amounted to $30,664 38. Leaving a balance due of $12,435 45. Interest and commission, rejected, $312 74. Leaving $12,122 71. And to bring this indebtedness within the very terms of the letter of credit, we have no doubt, that the plaintiffs hold the following notes and acceptances of Scudder, given while it was in existence and payable after the death of James McCalop. The draft of Scudder in favor of McCalop, dated the 8th of January, 1850, and payable the 11th of December, 1850, for $2000. The draft of Scudder in favor of McCalop, in like manner, accepted and paid by the plaintiffs, dated the 8th of January, 1850, and payable the 11th of January, 1851, for $2500. The note of Scudder, endorsed by McCalop, dated the 27th of January, 1850, and paid the 30th of January, 1851, for $4500. The joint note of Scudder and McCalop, dated the 27th of May, 1850, and payable the 31st of January, 1851, for $5500=fH,500.

And, we suppose, these with some smaller drafts, were the foundation of the verdict of the jury; but, that they failed to credit payments made by Scudder after McCalop’s death.

They allowed too much, but erred on the other side, by not allowing interest as prayed for in the petition.

The judgment of the district court is reversed, and judgment rendered in favor of the plaintiffs, against Nolan Stewart, executor of James McCalop, for the sum of twelve thousand one hundred and twenty-two dollars and seventy-four cents, with interest from the judicial demand, and costs in the district; court. The costs of appeal to be paid by the plaintiffs, appellees.


author: Rosr, .1. Slidell, J., Preston, J.

text:
    Samuel T. Williamson v. Alexander Norton, Master, &c.
    A slave, whose appearance and color gave no indication of African extraction, passed himself as a white person, and tools passage on a steamer. After several days, the captain suspected his true condition, and delivered him to the civil authorities of Memphis, as a runaway. In an action, by the master, for damages, it was held that the captain was not liable.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Wolfe and Singleton, for plaintiff.

      R. M. Karney, for defendant.
   By the court:

Rosr, .1.

I am of opinion, that there is no error in the amount allowed to the plaintiff in the judgment. The fact that the slave, carried away by the defendant, had taken his passage as a white man, and was suffered, without remark or objection from the passengers, to sit at the first table, and near the lady passengers, satisfied me, that the defendant might well have been deceived as to his color. The promptness with which he arrested him, and caused him to be confined in jail, at Memphis, on the mere suspicion that he was a slave, fully exonerates him from the intention of violating the act of 1840. I think, with our predecessors, that the presumption created by the act of 1840, only exists when the master himself finds his slave on board of the vessel; and is not applicable to cases in which the captain finds the slave, and takes the steps pointed out by that act to secure him. See Winston v. Footer et al., 5 R. R. 114. In the case of Buddy v. The Steamer Vanlear, we intimated, that the fine, imposed by the act of 1840, should be inflicted after conviction in a criminal prosecution. See 6 Ann. 34.

While I acquit the defendant from all criminal intent, it cannot be denied that, in consequence of carrying away the plaintiff’s slave, the latter suffered the damages allowed by the district court; and I am of opinion, that the allowance was properly made, under the prayer for general relief and the provisions of articles 2294 and 2295 of the code. But, for these damages, the privilege, allowed by the act of 1840, did not exist; and the sequestration should have been set aside, at the costs of the plaintiff. In this respect, the judgment must be amended. And, on the remainder of the case, the court being equally divided, the judgment of the district court must be affirmed.

It is therefore ordered and decreed, that the judgment of the court below be amended, and the sequestration sued out by the plaintiff set aside. It is further ordered, that, with this amendment, the judgment be affirmed, the costs of the district court to be paid by the defendants, and those of this appeal and the sequestration, by the plaintiff.

Existís, C. J., concurred.

Slidell, J.,

dissenting. I think there should have been judgment for the defendants. See Hurst v. Wallace, 5 L. R. 99; Winsten v. Porter, 5 R. R. 113; Spalding v. Taylor, 1 Ann. 195; and the testimony of Underwood, Cole, Blanchard, Duval, Martin, Denning, Phillips, respecting the color, hair, and general appearance of the slave. I do not think the testimony of the three last could be excluded, under the statute of 1840, it not being applicable to the case, for the reasons given in 5 R. R. 113.

Preston, J., concurred.

Same Case — On a Re-Hearing.

By the court:

Preston, J.

We have again carefully reviewed the evidence in this case. The slave of the plaintiff, being well dressed and of a genteel deportment, took a cabin passage, on the steamboat Western World, going from New Orleans to the western country, crowded with passengers. His color was a shade lighter than a new saddle, with a clear skin, his hair dark, but straight. He sat at the first table, in the cabin, and near the ladies. His appearance did not indicate African extraction, but that of a person born in the South and exposed to the sun, a Mexican or Spaniard. No person suspected his negro blood, until, near Memphis, the steward of the boat expressed his suspicion. An eclair cisscinent was had, and the master of the boat took the responsibility of delivering him to the civil authorities at Memphis as, probably, a runaway slave. He was brought to New Orleans, and sold at auction. The auctioneer and another think the discovery of his African blood might have been easily made. All discoveries are easy after they are made. The passengers of a crowded boat did not make the discovery in traveling seven or eight hundred miles with him, although he sat generally near the head of the table — although, one of them says, he had the appearance of a modest unassuming gentleman; another represents him as freely mingling with society. .Even after the discovery, many thought the master to blame in acting without more indidications of color, or proof. We think he boldly incurred risks, for the benefit of an unknown owner.

The master and officers of a steamboat, crowded with freight and passengers, have too much to do to scrutinize minutely the hair, skin, and complexion, of every one on board; and, if they act with ordinary care, are excusable, even if they overlook that which requires, out of their peculiar line, minute inspection to ascertain.

With these views of the general character of the evidence, and referring to the authorities cited by Justice Slidell, in the original opinion, we think the judgment of the district court should be reversed.

It is decreed, that the judgment of the district court be reversed, and that there be judgment for the defendants, with costs in both courts.