author: Edstjs, C. J.

text:
    Coiron v. Millaudon et al.
    The syndic is a mere nominal party to a tableau of distribution of the effects of an insolvent, except so far as his claims for commissions -See., are concerned. The creditors, inter sc, arc the real parties litigant.
    Where, after the' death of the syndic of the creditors of an insolvent, an account of his administration as syndic is presented by his executor, with a tableau of distribution, which is litigated and homologated, the creditors not having deemed it for their interest to provoke the appointment of another syndic, one who holds a debt which, at the time of the cession, belonged to a creditor who was represented by the attorney of absent creditors, will be concluded by the judgment of homologation in any attempt to annul a sale made by the syndic. Objections to the proceedings should have been made before they were closed by the distribution of the proceeds of the property sold.
    Where a court, which had accepted the cession of the property of an insolvent, homologates a tableau distributing the proceeds of the sale of the property surrendered, the judgment of homologation will be conclusive upon creditors who were parties to it, in the absence of any fraud or collusion, and though the sale was made without any order of court. Per Curiam : The court having distributed by its decree the proceeds of the sale of the property, as such —eo nomine — the sale itself and the right to sell were thereby settled. The creditors who received the proceeds, and those who sanctioned the appropriation to debts which they had an interest in discharging, are equally bound by the judgment, the law considering them parties to it.
    Where the validity of the sale of the effects of an insolvent is attacked on the ground of tBé' nullity of the whole proceedings in consequence of the creditors not having been cited, evJ idence of meetings of the creditors, held under orders of court, who advised a sabs and fixed the terms, and of the homologation of the tableau, are sufficient to sustain the sale.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J»

      Gedge, for the appellant.

      Benjamin and Micou, for the defendants.
    At the date of Coiron's cession, in July, 1833, the debt now claimed by Mrs. Coiron belonged to Bouchard. He was an absent creditor, cited through the attorney appointed by the court to represent the absent creditors; but, as an absent creditor, he had a right to decline any participation in the insolvent proceedings, and to prosecute his remedy in the Federal court. He selected that course, and refused to become a party to the concurso. In the moan time the property surrendered was sold. It was not in his power, after the sale of the property in the State court, to come into that court, and complain of what was done by the other creditors and their syndic, dating the period in which he had been prsoecuting his rights in the Federal court. Mrs. Coiron, if subrogated to his rights, is equally without capacity to sustain such complaint. Riley v. La-man, 2 Crunch, 344. Sturgcs v. Crowninshield, 4 Wheaton, 122. Farmers’ Bank v. Smith, 6 Ibid. 131. Ogdenv. Saunders, 12 Ibid. 213. Clay v. Smith¡ 3 Peters, 411.
    The effect of any judgment in favor of plaintiff in the present action, would be to break up all the proceedings in Coiron’s failure, and to vest the title to the property in his creditors. What right has one creditor to sue for the rest? The settled jm-isprudence of the State, refuses such an action to any other than a syndic. Bussau v. Bredeaux, 4 Mart. 450. Pimpinella v. Lanusse, 6 Mart. N. S. 125. Mayfield v. Comeau, 7 Mart. N. S. 182. Lillard v. 1’arbe, 15 La. 422.
    The nullity or informality complained of, i. e. the want of an order of sale signed by the judge, does not exist. No order of court was necessary for the sale, under the law as it existed at the date of the sale. Act of 1817. C. C. 2180. Act of 1826, sec. 3, Bui. & Cur. p. 496.
    Under our jurisprudence, the judgment homologating the tableau forms a complete bar as res judicata against plaintiff. Morgan v. Creditors, 4 La. 174. Ory v. Creditors, 12 La. 121. Lmgv. Creditors, 14 La. 837. Smith v. Be Latlande, 1 Rob. 384. Egerlon v. Creditors, 2 Rob. 539. Story on Equity, v. 1, p. 375.
   The judgment of the court Was pronounced by

Edstjs, C. J.

On the 17th of July, 1833, Jean.Joseph Co'vron, since deceased, the former husband of the plaintiff, made a surrender of his property in the court of the first judicial district. The judge made the usual order on the application, accepting the cession, directed' a meeting of ¿he creditors to be convened, and appointed an attorney to represent the absent creditors. The property was afterwards sold, and the proceeds distributed under a tableau of distribution, which, after due notice, was homologated. Coiron died in September, 1833, leaving a widow and four children. His succession was opened in the parish of his domicil, and the plantation and slaves, which are the subject of the present suit, were inventoried as belonging to his succession. The plaintiff, the surviving Widow, has brought this suit, as a creditor of her late husband, to vacate and annul the sales of the property ceded to the creditors by the insolvent, to wit: a Valuable plantation, with the. slaves, situated in the parish of Pluquemines, on various grounds set forth in the petition and the printed argument of counsel.

The district judge was of opinien that the homologation of the tableau of distribution of the proceeds of the property sold among the creditors, was a bar to the plaintiff’s action, and gave judgment accordingly. There were other creditors who were made defendants, but the only parties who have appeared before us on this appeal, taken by the plaintiff, are Millaudon Lesseps, the purchasers of the plantation and slaves.

The heirs of the insolvent do not attempt to disturb the sale, nor does the plaintiff present herself in any other right than as a creditor of her late husband. The fact of her being a creditor is directly put at issue by the pleadings, and the only evidence of it is the payment by her of a judgment, in May, 1834, which was in favor of Joseph Bouchard, and against her and her husband in solido.

At the time of the cession, July, 1833. the debt which the plaintiff now holds, was due to Bouchard, who was a citizen of the State oí New York. He obtained his judgment in the Circuit court of the United States for this district. But in relation to the property comprized in the cession made by the insolvent, he must be considered as represented, so far as concerns his interest therein, by the attorney appointed by the court to- represent the absent creditors. Waiving the question which has been raised as to the plaintiff’s not having become a creditor until after the cession; we proceed to consider the case as presented in the argument on the point on which the district judge decided it, as to the effect of the tableau of distribution.

It is contended by the counsel for the plaintiff that there-was in fact no legal tableau of distribution, it having been made and presented,-not by a syndic, but by the executor of the syndic, who had died’, and whose appointment had not been replaced by the creditors. The light in which- a tableau of distribution of an insolvent’s effects- is viewed under our system renders the the syndic a mere nominal party, except so far'as his claims for commissions, &c., are concerned. The creditors,- inter se, are the real parties litigant. Morgan v. Creditors, 4 La. 174.

In the case of Smith v. Poydras, 1 Rob. 384, it was hejd that, where the creditors of an insolvent having appointed two persons joint syndics, remain silent while one of them causes himslf to-be recognized as sole syndic, sells the property, and files the tableau of distribution, which- is homologated without opposition, they will be considered as having ratified his acts, and be bound by their silence. And this decision was not assumed to be based on any authority on the part of the court to appoint the syndic, but on the principle of ratification, and that it Was incumbent on the• creditors to' have'objected to the proceedings, before they were closed by the distribution of the proceeds of the property sold. The-application of that principle to this case is direct and obvious. The syndic having died, his executor presented to'the court an account of the administration of the-syndicate by the deceased, and with it a tableau of distribution which was litigated and finally adjudicated upon. The creditors did not d'eem it for their interests to provoke the appointment of another syndic, and the1 administration of the deceased syndic, as exhibited by the executor, was acted upon, and the tableau'of distribution homologated.

It is further contended, on the part of the plaintiff, that there was no sale of the property surrendered ; that the whole proceedings are null and void, in consequence of an absence of those requisites which are necessary to give them validity. The most material defect, and that most relied on in argument, is the want of any order of court authorizing the sale. The property was ceded by the insolvent for the purpose of- being: sold to pay his debts, and the creditors had fixed upon the terms and conditions of the sale. The D'Aquins, who were mortgage creditors, opposed the sale as recommended by the creditors, and required the property subject to their mortgage to be sold separately. Their opposition was filed, in February, 1834, and was overruled on the 12th March, 1835, the sale having in the mean time taken place, to wit: on the 6th of March,. 1834. It appears that an application to the court was made on the day of the sale, for authority to sell according to the terms dictated by the creditors before-the notary, and an order was made by the judge to that eifect: but on signing it and handing it to the clerk, he was apprized of the opposition of the D'Aquinshaving been filed. The order was erased, and a memorandum made of the erasure and its cause was signed by the judge at the time. On a hearing the opposition was dismissed, notwithstanding the sale had been made, the judge considering the matter before him as on the opposition, unaffected by the fact of the sale, which was not before him. In this state of things, the judge, on the 25th of November, 1837, acted on the tableau of distribution presented by the executor as before stated, overruled the opposition of creditors claiming a pri-vilege., 'homologated the tablean, and ordered the executor of the syndic to pay over the moneys of the estate in accordance therewith.

it thus appears that this judgment homologating the tableau was deliberately rendered, in the presence of the fact of the want of any order of the court authorizing the sale; and however irregular the proceedings may have been, there does .not appear <to us to have been any fraud in the sale, or collusion between the syndic and the purchasers. It appears to have been conducted fairly, and more than usual publicity was given to it by way of advertizements.

It is obvious that, under the repeated decisions of the Supreme Court «md the principles on which these decisions are based, we must hold the creditors of the insolvent bound by this judgment.of distribution. The plaintiff was present and must be considered as a party to it, for, by her own allegations, she was at the time of its rendition a creditor. The required notices are proved to have been given, and the order of the court for the .creditors and all others concerned to show cause why the tableau should not be homologated and distribution made accordingly, recited the fact that the former was presented by the executor of the deceased syndic.

The court having advisedly distributed by its decree the proceeds of the sale of the property as such, eo nomine — the sale itself and the right to sell was thereby settled and determined, and from that time must be viewed as having been made under sufficient authority. As to those creditors who received the proceeds there can be no question; and we think the creditors who thus sanctioned the appropriation of the proceeds for their benefit, that is for debts which they had an interest in having discharged, are equally bound by the judgment, as the law considers them .as parties to it.

In the sale of property ceded by insolvents to their creditors, it is undoubtedly competent for any .creditor, previous to the homologation .of the tableau of distribution, to .cause a resale of property surrendered on any adequate or legal cause. Up to that time the court, having all the parties before it, has the power to cause the price .to be refunded to tho purchaser, and to have the things put in statu quo. But, after that time, we concur with the district judge in opinion that, the sale must be considered as executed under the authority of the court itself, and cannot be considered as a nullity.

It is also urged, on behalf of the plaintiff, that the whole proceedings are null, in consequence of the creditors not having been cited. On this point there is no evidence .adduced. There were .two regular meetings of creditors held under orders of court, who advised the sale and fixed the terms thereof. In a question concering the validity of the discharge of the insolvent, this enquiry might be material, under the authority of the case of Breedlove & Robeson v. Nicolet, 7 Peters, 434. But in relation to the validity of the sale of the insolvents' estate, we think the meetings of the creditors and the homologation of the tableau are sufficient.

In resting this case on the decision of the district judge; we must .not be considered as conceding the right of action to the plaintiff to rescind this sale. Without noticing .the pleas of prescription filed by the defendants, it is sufficient to state that she alone of the creditors seeks before this court .to set aside the sale, and to disturb the payments made under the sanction .of .a court; nor does she offer or provide the means of restitution of the purchase money to the defendants. The proceeds of the sale were not sufficient to pay the privileged and mortgage creditors; a balance still is due them according to the tableau. The parties to whom any surplus on aresale would come do not choose to distm'b sa'e> under the obligation of restitution and praying for improvements which the purchasers may have made upon the property ; nor is there any evidence that the property was not sold for its just value, nor that, at this remote period, any creditor would be benefited by a resale.

In a case of collusion between the syndic and a purchaser, wnere a fraud has been practiced upon creditors, we have no doubt of the remedy of the latter individually; but in this case, the evidence establishes neither. We can find no precedent of such an action haying been sustained. Story’s Equity Pleadings, § 503, 510, and 51G. Judgment affirmed.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Burgess v. Beebe et al.
    The owners of a steam towboat are responsible for any injury to another vessel, occasioned by the steamer’s having a tow so much bey.ond her .capacity as to disable her powers of locomotion.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Hiestand and Brewer, for the plaintiff.

      Moise and W. M. Randolph, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff sues to recover from the defendants the value of aflatboat and cargo of bricks, which were sunk in consequence of being run into by the steam towboat Claiborne, in the Mississippi, about twelve miles below New Orleans. There was judgment in favor of the plaintiff, and the defendants have appealed.

The district judge considered that the .collision was caused by mismanagement on the part of those in charge of the steamer, which was occasioned by her having a tow which disabled her powers of locomotion. It is conclusively shown by the plaintiff’s own witnesses that the tow was beyond the capacity of the steamer. This, certainly, is no excuse for her mismanagement. The judge has given his reasons at length, in which we concur.

Judgment affirmed.


author: Kino, J:

text:
    Penney v. Somerville.
    An appeal not filed within three judicial days after the return day, where the failure does not result from any neglect on the part of the clerk or other officer, and where no extension of timo has been granted, must be dismissed.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J,

      Roselius, for the appellant.

      Mott, for the defendant.

      St. Paul, for the intervenors.
   The judgment of the court was pronounced by

Kino, J:

A motion has been made to dismiss this appeal, on the ground that tho transcript was not filed within .the delay fixed by the .order of the district judge.

Tho appeal was made returnable on the fourth monday of April, 1848, which Rennet was the 24th of the month. The transcript was not filed until the 12th of Somerviele. May following. More than three judicial days elapsed between those dates. The motion must prevail. See 8 La. 206. 6 Rob. 280. 2 An. R. 453, 769.

Appeal dismiseed.

       Appeals in the cases of Freeman v. His Creditors, and Randolph v. Tourne, were .also dismissed, for the same reasons.


author: Rost, J.

text:
    Farr v. Gyles.
    A decision, in a civil suit, declaring a witness not entitled to credit, cannot render him thereafter incompetent to testify; though it may greatly affect his credibility.
    APPEAL from the District Court of Jefferson, Clarice, J.

      Hoffman and Halsey, for the plaintiff.

      Prentiss and Finney, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This is a suit similar to that of Fink v. Lewis, reported in 1 An. p. 395. The plaintiff seeks to recover the amount of a promissory note of the defendant’s, sold, after maturity, as one of the credits belonging to the insolvent Thomas Poioell. The defence is payment; and Poioell swears, as he did in the former case, that the note was satisfied by the defendant, before his (Powell’s) failure. The plaintiff adduced the same evidence by which the credibility of this witness was impeached in the case of Lewis. There was judgment in his favor, and the defendant appealed.

Tho question presented for our consideration is a question of fact, Upon which the opinion of the district judge would be entitled to great weight, if it appeared from the judgment that he had acted upon the testimony of Thomas Powell, but had not given it faith. The reasons given by the judge are as follows :

The Supreme Court have, in a recent case, declared Powell to be an incredible witness. We consider that decision an estoppel to any enquiry by the present court into his competency and credibility.”

These reasons are unsatisfactory. The decision of this court in a civil suit cannot render a witness incompetent to testify, though it may greatly affect his credibility. The court meant, in the former case, that the testimony of Powell, unsupported by corroborating circumstances, was not sufficient to prove any

fact. But the law must have an object in allowing him to testify, and attach some weight, however small, to his declarations, when they are consistent, made in apparent good faith, and corroborated by circumstances which render their truth highly probable. This, however, can only be ascertained in the District Court, where the witness appears before the judge.

Without expressing any opinion in relation to the corroborating circumstances alleged by the defendant’s counsel, we consider that the district judge should have received the testimony of Powell, and passed upon it; and we remand the case, in order that this error may be corrected.

It is ordered that the judgment in this case be reversed, and the case remanded for further proceedings; the plaintiff and appellee paying the costs of this appeal.


author: Seidell, J.

text:
    Byrne v. Riddell et al.
    'Wksre In an action against co-trespassers tile action is tried as to one of them separately, any objection thereto must he raised by the op-defendant before going to trial on his own case, or it will he too late.
    Where a person employs others to commit a wrong, the party aggrieved is not required to make the persons so employed co-defendants in an action for damages against the principal. To construe art. 2304 of the Civil Code as requiring this, would be inequitable. Nolis the plaintiff in an action against a principal trespasser and others employed by him, debarred of the right to obtain, from a jury, a higher verdict against the principal than against those whom he instigated.

      k PPEAL from the Third District Court of New Orleans, Kennedy, J.

      IX Collcns, for the plaintiff.

      Bartlett and Grymes. for appellant.
   The judgment of the court was pronounced by

Seidell, J.

The plaintiff alleges that Riddell, aided and abetted by Banks and Dunn, forcibly ejected her from the premises she had leased from Riddell, and that Banks and Dunn, under the direction and with the immediate participation of Riddell, struck her and her child, detained her clothing, and committed sundry acts of violence upon her person and property.

A judgment by default was taken against Banks, aud, upon submission of the case, as to him, to a jury, they gave a verdict against him for $362 50.

Riddell first pleaded an exception that, he was not bound to answer until Dunn, the co-trespasser, who, as he alleged, was jointly bound, should be cited. Tiiis exception the court overruled, “ saving to the party excepting all his legal rights.” Riddell then filed an answer. In this answer he begins by a reservation of the benefit of matters theretofore pleaded, and then pleads a general denial, áfc.

When the cause earns to trial before a jury as to Riddell and Dunn, no objection appeai-s to have been made that the cause had beeu already tried separately as to Banks. The jury found a verdict against Riddell “ for $1000; from which amount is to be deducted the amount of judgment against Banks and against Dunn for $500. From the judgments rendered in pursuance of this verdict Riddell has appealed.

Objection is made to these separate verdicts for separate sums, and to the inequality of the verdicts, the appellant relying upon article 2304, which declares co-trespassers jointly liable. A mere mistake of the translator brought the euglish text of our Code into conflict with the french text, and with a well settled principle of the civil law. “ Lorsque plusíeurs personnes ont commis ensemble un délit, elles sont solidairement responsables du dommage causé.” Mackeldey, DroitRomain, p. 233. Merlin, Rep. Solidarité. Inconsequence of the act of 1844, the rule laid down in Loussade v. Harmann has ceased to be important, in cases ex delicto arising thereafter. We cannot but say, with great deference to the learned judge who delivered that opinion, that it seems to us to have been going very far, to apply to the case of wrongdoers the analogy of a technical and certainly inconvenient rule, established by special legislation with regard to joint contracts. But without entering into a discussion of the effect of article 2304 in ordinary cases, it is sufficient to say that, in the present case, we see no reason to disturb the judgment on this technical ground. If there was an informality in bringing the cause to trial separately as to Banks, the defendant Riddell should have raised the objection upon going to trial upon his own case. Moreover, it is clearly shown by the evidence that Dunn and Banks acted as Riddell’s agents, and it appears from the testimony of the judge of the criminal court, before whom was tried an indictment for the assault and battery committed upon the plaintiff, as well as from other testimony, that Riddell declared he assumed all the responsibility of what Dunn and Banks had done, and that they were authorized by him. It would, in our opinion, be a strained and inequitable construction of the article in question, to say that where a party employs others to commit a wrong, the person injured would be obliged to make the instruments of the wrong co-defendants, and should be debarred from-obtaining,- at the hands of a jury, a higher verdict against the originator of the mischief than against those whom he instigated to its commission.

It is said that the damages in this case are excessive. We are very far from approving the conduct of the plaintiff. She had violated her duty as a lessee; her conduct was unjust, and of a character well calculated to irritate the defendant. But, on the other hand, the forcible ejectment of the plaintiff by an armed man, acting without a lawful warrant; the detention of plaintiff’s clothing; the actual violence committed on her person; the advanced age and sex of the injured party — all these were circumstances .which were not only very likely to operate powerfully upon the minds of a jury, but which in law it was their province to consider in estimating the damages. Much discretion is given in such cases to the jury (Civil Code 1928, § 3); and an appellate court should not disturb their finding except where it is clearly excessive. There is a limited class of cases in which the law permits high damages, not for the gratification of revenge, but for the sake of example, and with a view to promote the poace and quiet of society. Judgment affirmed.


author: Etjstis, C. J.

text:
    Jenkins et al. v. Thott.
    Where the master of a vessel employs a broker to procure a freight, and the latter introduces to the master a party having merchandize to ship, •which the master declines to take on the terms offered; but, a few days after, while the broker is still employed to procure a freight for him on better terms, concludes, through another broker, a bargain with the same patty on the terms first proposed, and pays him his brokerage, he will be bound to pay a brokerage to the first broker. Per Curiara: To enable the defendant, under such circumstances» to defeat the broker’s claim for commissions, by taking the'identical offer, through another broker or directly by himself, would enable him to commit a fraud upon the plaintiff.
    APPEAL from the Fourth District Court of New Orleans, Sirawbridge, J.-

      Rockett and Goold, for the plaintiffs.

      Bradford,, for the defendant,
    cited 2 Rob. 63, 163. 1 An.- Rep. 6.
   The judgment of the court was pronounced by

Etjstis, C. J.

This is an action on behalf of the plaintiffs, who are ship-brokers in New Orleans, against the defendant, who is master of the ship Monument, for their brokerage on the freight of the ship from this port to Alicant, being five per centón the amount. The district judge g'ave the plaintiffs judgment for 8230, being two per cent on the- freight, and the defendant has appealed.-

The first thing to be ascertained is, whether the defendant employed the plaintiffs as brokers. This is denied ; but we think the fact is satisfactorily established by the testimony of concurrent witnesses. It appears that Reynaud,Cucullu Co., having tobacco and stave’s to be shipped to Alicant, applied to the plaintiffs to procure them a vessel. They opened negotiations with Reynaud, Cucullu Co. for the freight, and introduced to them the defendant. Reynaud, Cucullu 8f Co. offered $16 per hogshead for the freight of tho tobacco, and $30 per thousand for slaves. This offer was declined by the defendant at the time; but, a few days after, through another broker, the bargain was concluded with Reynaud, Cucullu &>• Co. on the terms proposed by them, and the defendant paid the last broker his commissions.

It is undoubtedly true that, on the refusal of the defendant to accept the offer for freight, the negotiation was ended, so far as relates to the parties making and refusing the proposal. But on refusing, the defendant, as Reynaud himself swears, addressed himself to Jenkins, saying that, if he could not get him $17 for tobacco and $30 for the staves, he would not take the freight at all. Ballister, another witness, states that he heard Trott tell Jenkins, four or five days after he first came to the office, that if he could get a little more for this freight he would take it.

The employment of a broker being verbal, and frequently pi'ivate and strictly confidential, and only known to the parties, the proof of the fact is attended with difficulty when a party is held to legal proof; the continuance of the employment is subjected to the same difficulty, as to its proof. We find no evidence of any termination of the relations between the defendant and the plaintiffs in the business about which they were originally employed ; on the contra* ry, we infer their continuance from the declarations of witnesses; and, in coming to this conclusion, we have taken into consideration the origin and continuance of the intercourse between the plaintiffs and the defendant. The plaintiffs did not seek out the defendant or call upon him. On the contrary, their relations appear to have originated in the plaintiffs’ office, and the matters transpired there, except what passed between the defendant and Reynaud, Cucullu Sf Co., at their counting house.

To hold that the defendant could, under these circumstances, defeat the plaintiffs’ claim for commissions, by taking the identical offer which the plaintiffs gave the defendant the means of accepting, through the offices of another broker or directly by himself, would enable him to commit a fraud upon the plaintiffs. Had the transaction been closed under the agency of the plaintiffs, the commission would have been earned; and certainly the defendant wau bound, in good faith, not to take any steps which would defeat their claim for compensation, without at least giving them fair notice that their agency was at at end.

Nor do we think it all material in this case, that the fact was well known that the house of Reynaud, Cucullu Sf Co. had this freight for Alicant. It of course was known as the brokers were charged with procuring a ship for them, and the negotiations with the defendant would of themselves have made it public. There appears to have been no reserve about the matter. Still less is it of consequence that, the second broker did not acquire his information as to the freight from the defendant. The difficulty arises from the defendant, though the house of Whitney 4' Co. were the regular men of business of the ship, having employed the plaintiff's to negotiate for a freight. He was certianly at liberty to employ any number of brokers, but their claim for compensation is not dependant on liis will. The agency of the second broker, and the payment of his commissions,have nothing to do with this case, so far as the plaintiffs’ rights are concerned. It is the defendant himself who took the offer of the freight, knowing that it was the same which the plaintiffs had been employed by him to treat about, and they being authorized at the time to get for him a freight on better terms. It appears to us that on every principle of justice the plaintiffs are entitled to recover their brokerage from the defendant.

Had this case been presented to the Court of King’s Bench on a claim of the brokers, under the usage of London, we are satisfied that it would haye been allowed. Russell on Factors, 163 and 164,

In Wilkinson v. Marlin, 8 Carr. & Payne, p. 1, it was held, that to enable a broker to recover a commission on the sale of a ship, the mere fact of his having introduced the purchaser to the seller will not be sufficient; but, if it appears that such introduction was the foundation on which'the negotiation proceeded, the parties cannot afterwards, by agreement between themselves, withdraw the matter from the broker’s hands, and deprive him of his commission. That the broker will be entitled to his commission, if he was up to a certain time the agent or middle man between the parties, although the contract be afterwards completed without his instrumentality or interference:

In Burnett v. Bouch, 9 Carrington & Payne, 620, it was held that the usage in London is that, when a broker has introduced the captain of a ship and a merchant together, and they, by his means, enter into some negotiation as to the intended voyage, the broker is entitled to commission if a charter party be effected between them for that voyage, even though they may employ another broker to prepare the charter party, or may write the charter party themselves. That if a broker be authorized by both parties, and acting as the agent of each, communicates to the merchant what the ship owner charges, and also communicates to the ship owner what the merchant will give, and he names the ship and the parties, so as to identify the transaction, and a charter party be ultimately effected for that voyage, this broker is entitled to his commission; but, if he does not mention the names so as to identify the transaction, he does not get his commission to the exclusion of another broker, who afterwards introduces the parties personally to each other.

Judgment affirmed.


text:
    City of Lafayette v. Cummins.
    Art. 127 of the constitution relates to State, and not to municipal, taxes.
    The stat. of 20 April, 1846, which authorizes (s. 19) the city council of Lafayette to " lay and collect upon trades, occupations, and professions, such other taxes, not specified in this act, which, in their opinion, may be required by the wants of said city, and the imposition and collection of which may not be inconsistent with the constitution and laws of the United States or of this State,” containing no prohibition of discrimination in the objects of taxation, a tax imposed by an ordinance on certain enumerated trades and professions, cannot be considered illegal or unconstitutional, because other trades and professions are not taxed, where the tax on the enumerated trades or professions is imposed on all persons exercising such trades or professions,

      APPEAL from the District Court of Jefferson, Clarke, J.

      Michel, for the plaintiffs.

      Brewer and Soule, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a judgment rendered against the defendant by a justice of the peace of Lafayette, for $15, the amount of a municipal tax due by the defendant on account of his occupation and trade as a butcher. The tax was imposed by an ordinance for the year 1847, which lays an annual tax on the trades and professions mentioned therein. Besides the trades enumerated, there are several others, principally those of mechanics, and also other professions and occupations, which are consequently not taxed. The 19th section of the law of 1846, authorizing the city council of Lafayette to lay taxes on real estate and slaves, empowers them to lay and collect taxes upon all kinds of property, and upon trades, occupations, and professions, such other taxes, not specifled in this act, which, in their opinion, may be required for the wants of said city, and the imposition and collection of which may not be inconsistent with the constitution and laws of the United States and of this State. Acts of 1846, p. 28.

It is contended, that the imposition of the tax attempted to be executed is contrary to the 127th article of the constitution, which provides for the equality and uniformity of taxation throughout the State.

In the case of Duncan v. The Second Municipality, this question, after a very thorough argument, was determined by this court, and the article was held applicable only to-state-, and not to municipal, taxes. 2 Annual R. 182.

The opinion of the court in that case meets also another objection taken by the counsel for the defendant to the legality of the tax, on the ground that all trades, occupations, and professions are not subject to it. The tax in Duncan’s case was-a special tax on real estate and slaves, and was Imposed under a law of 1805, authorizing the city council of New Orleans to tax real and personal estate, and it was obviously unequal in its operation, inasmuch as all personal property was exempt from it; yet- the court held; that the tax was not illegal.

The statute of 1846, under consideration, imparts no prohibition of discrimination in the objects of taxation, which is an administrative question of great importance; and where the tax is laid on persons in the same class, that is, all those-exercising certain trades, occupations, or professions, we know of no instance in which it has been held to be other than legal and valid.

It is proved that the defendant keeps a slaughter-house in Lafayette, where he kills cattle for the New Orleans market. His cart is taxed, and he pays a high tax for his stall, where he sells his meat. But those burthens afford no ground for the non-payment of the tax sued for.

Judgment affirmed.

       This judgment was affirmed by the District Court of Jefferson, on an appeal from the decision of the justice ; and the case comes up on an appeal from the judgment of the District Court.


author: Slidell, J.

text:
    The Louisiana State Bank v. Ledoux.
    Defendant bound himself as surety on a bond in favor of a bank, which recited that: “ Whereas J. D. has been appointed note clerk, to continue in office daring the will of the present, or any- future board of directors of the said bank: now‘the condition of this obligation is that if the said J. D. shall well,’truly, and faithfully do and perform the duties of said office of note clerk, shall render a faithful account of alimonies and effects committed to his charge or under his control, and generally shall save the said bank harmless on account of any negligence or misconduct of him the said J. D., then this obligation tobe void, else to remain in full force.” The directors of'the bank were elected-annually. I). embezzled from the bank a sum exceeding the amount of the bond, but no part of it was taken until more than twelve months after his appointment. In an action against the surety on the bond: Held, that the office was not an annual one; that it does not follow because the directors are to be elected annually, that the clerks and servants of the bank hold their office by the same tenure, they being clerks and servants of :the corporation and not of the directors who appoint them; that the bond itself shows that the surety contemplated the continuance of D. in office beyond the year; and that the fact of the defalcation occurring more than twelve months after the appointment cannot discharge the surety. Nor will he be discharged by the mere fact of a neglect of duty on the part of the cashier of the bank, inconsequence of which the clerk was enabled to embezzle funds of the bank, where there was no knowledge by the directors of such neglect, and no fraud on their part. The by-laws of the bank .providing for periodical examinations of its affairs formed no part of the contract with .the surety; they are merely directory to the managers of the bank.
    Where the surety in a bond given for the faithful discharge of the duties of an officer of the bank, on being informed by the bank of an embezzlement «committed by the officer, before paying any portion of the amount embezzled, requires the bank to arrest the principal under the stat. of 28 March, 1840, and the bank refuses to do so, the surety will not, in the absence of any indication of a fraudulent connivance at the escape of the clerk, be thereby discharged. C. C. 3030. It was the duty of the surety, if he desired to avail himself of the chances of a restoration of the amount embezzled resulting from an arrest of the principal» to have paid the amount for which he was liable, and to have exercised himself the rights of the bank.
    Interest will be allowed from judicial demand ¡on the amount found due to the plaintiffs in an action against the surety on the official bond of the officer of a bank, for an amount enr bezzled by the latter from the bank.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Grima, for the appellants.

      Hunt and Chymes, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

The defendant, Lcdoux, became the surety of James Duplessis, who was appointed note clerk of the bank, on the 26th February, 1840. The bond, by which Duplessis and his two sureties, Ledouxtmd Durrive, bound themselves jointly and severally, bears date 29 February, 1840, and is for the sum of '$12,000. It declares that: “ "Whereas James Duplessis had been appointed note clerk, to continue in office during the will of the present, or any future board of directors of said hank; now the condition of the above obligation is such, ■that if the said James Duplessis shall well, truly, and faithfully do and perform •all and-singular the duties of said office of note clerk, shall render a faithful ■account of all monies and effects committed to his charge, or under his control, and generally Shall save the said Louisiana State Bank harmless from or on account of any negligence or misconduct of him, the said James Duplessis, then this obligation to be void, or else to remain in full force and virtue.” Duplessis embezzled from the bank at different times, in the years 1841, 1842, and 1843, an amount exceeding $12,000; and the present action is bi’ougjit to recover from ‘LedouxÚi& amount of the bond, with interest from judicial demand.

Several grounds of defence have been presented by counsel, which we shall •consider in the order adopted in argument.

I. The petition admits that the first amount] embezzled by Duplessis was .taken on the 30th day of March, 1841, and consequently that he discharged his duty faithfully until ¡jhat time. It is contended, therefore, that, under the bond, the defendant is not liable ; because, at the date of the first defalcation, his appointment had expired; that his office was an annual office, and that his sureties were bound for one year only.

If the place to which Duplessis was thus appointed was an annual office, ■there might be some plausibility in the conclusion invoked by the defendant. It is proper, therefore, to inquire whether the premises assumed are true. If we look merely to the language of the bond, it is obvious that the contracting parties did not contemplate a duration thus limited. On the contrary, it points to the expected continuance of Duplessis in office, “ during the will of the present, or any future board of directors.” Under the charter the directors were to be elected annually. A limitation to a year is, therefore, inconsistent with a continuance in office during the will, not merely of the next succeeding, but of any future, hoard. Confining our inquiry to the words of the contract in ascertaining its intention, it would be impossible to recognize the limitation claimed.

But it is said that sureties are the favorites of the law; that their contracts ■are scanned with great strictness; and though the words of the bond may cover ,an indefinite period, yet if, by an act of the legislature, or by the records of a ■corporation, it appears that the office was annual, the obligation must be understood as referring to an office so limited. We are not prepared to recognize the ■doctrine applicable to offices which may properly be denominated public, as extending unqualifiedly to appointments like that in question ; nor to say that, in the case of such an appointment, .even if it were annual, sureties might not be held bound for the good conduct of the principal under future appointments, if the intention to do so clearly resulted from the terms of the obligation. Upon ■this point, however, it is unnecessary to express an opinion. Conceding the right to limit the construction of this bond by the charter of incorporation and .the by-laws of the bank, we proceed to consider the argument of counsel with reference to that hypothesis, and to inquire whether the place held by Duplessis .is to be considered as an annual .office.

The argument presented is mainly deduced from the provisions of the charter with regard -to the election of directors. It provides that the directors of the ¡bank shall be annually elected, and forbids the reelection of more than two-thirds of the .directors in office at the time of each annual election, permitting no director to hold his office more than three years out of five in succession. But it does not follow from this legislation with ¡regard to the board of directors, that the mere clerks and servants of the corporation should hold their appointments by the same tenure, If these .clerks and servants were to be considered the mere clerks and servants of the directors who appoint them, the conclusion might be a reasonable one. But we do not so regal'd them. They are the clerks and servants of ¡the corporation; and the limited term of service of the directors does not control the duration of such appointments. It is proper to add that there is nothing in the by-laws of the bank limiting .the duration of the .place of note clerk, and his appointment itself was genoral.

■ The views which we have stated are not merely expressive of our own convictions, but rest upon high judicial authority. The subject was considered in the case of Anderson v. Langdon, 1 Wheaton, 91. A number of persons had associated themselves and formed a company for the purpose of encouraging the manufacture and use of domestic merchandize. By the articles which they adopted for their government the directors were to be chosen annually; and the .affairs of the company were to be carried ou under the .control and

superintendence of the board thus elected. -They were to appoint an agent and such other officers as might be requisite, who were to hold their offices during the pleasure of the board, and to give bond for the faithful discharge of their duties. The company having proceeded to elect directors, one McLeod was appointed agent by them, in February, 1810, and gave bond in favor of the then directors, with Anderson as his surety, conditioned for the faithful performance of his duties according to the terms and meaning of the articles of association, etc. Fie continued in service without any new appointment till June, 1812, when he was dismissed ; and having gone out in arrears to the company, the suit was brought against the surety to recover the amount due. Among other matters of defence, it was pleaded that the agent was appointed on the 13 February, 1810, and thar, for one year from the time of such appointment, and duringthe time the plaintiffs acted as directors, he had faithfully executed and performed his duty. To this plea it was replied that he had continued in office for more than one year under the appointment, etc., to which the defendant demurred. In argument the case of the Commonwealth v. Fairfax, was cited, where the words “so long as they shall continue in office ” in the condition of a sheriff’s bond, were considered not to extend to a second and new appointment. Chief Justice Marshall, in delivering the unanimous opinion of the court, said: “ The case of the sheriff’s bond is very different. The commission of sheriffs in Virginia is annual: of course his sureties are bound for one year only. It is true the directors of the company are elected annually, but the company has not said that the agent shall be for one year only; his appointment is during pleasure. The sureties do not become sureties in consequence of their confidence in the directors, but of their confidence in the agent whose sureties they are.”

In the case of the Union Bank v. Ridgely, the suit was upon a cashier’s bond, who had been appointed without any specific duration of his office having been fixed. By the charter, the directors were to be appointed annually, a portion by the State and a portion by the stockholders. Not more than eleven directors in office -were eligible for the next succeeding year; and no director having served for three years successively, could be eligible for the two succeed, ing years thereafter. As breaches of the bond, embezzlements were assigned at various times between the date of the bond, March, 1805, and the year 1819. It was then urged in a very elaborate argument, that the cashier was one of the servants under the directors, to enable them to execute the bnsiness of the corporation : that the business of the corporation was to be managed by these directors, until the first monday in July, 1805, and no longer, provided the new electiou took place on that day; that as the president and directors were appointed for a limited time, aud to perform certain duties, and the cashier was a deputy or servant under them to aid in the performance of their duties, his appointment could not endure longer than that of the appointing power; that they could give no greater power to their servant, the cashier, than they themselves had ; that the law might authorize them to appoint for a longer time ; but as it did not profess to confer such a favor, the question must depend upon the general doctrine of principal and deputy. But these propositions were urged ineffectually, and were distinctly negatived by the court, after a careful analysis. See 1 Harris and Gill’s Maryland Reports, p.432. It was held that the cashier’s office was limited only by the duration of the charter, subject to the removal of the incumbent by the directors, as occasion might require, and that he was not necessarily an annual officer.

The same doctrine was maintained in the case of the Dedham Bank v. Chickering, 3 Pickering, 340, There the cashier’s bond was conditioned, for the faithful performance of his duties “ so long as he shall continue in office.” It was dated in April, 1814. The entry of his appointment was that: “At a meeting of the directors, on the 25th March, 1814, Oliickering was chosen cashier of the bank; ” so that no duration was expressed. By the charter the directors were chosen annually. The defalcation occurred in ,1823. It -was held that the words of the bond were general, that there was nothing in it to show that a restriction was intended, and nothing in the records or regulations of the bank indicating that the office was annual.

Much stress has been laid by counsel upon the expressions used in the fifth section of the charter, which is in these words:

“ That in their first meeting, the directors shall appoint by ballot one of their members for their president, and he shall continue in office during one whole year. Whenever a vacancy shall occur, either through a change of residence by leaving the State, death, resignation, bankruptcy, or any other cause, prior to the last monday of January, in every year, directors shall have that vacancy filled up by a stockholder, having the qualifications required by this law to be a director, and the acting directors shall appoint all such officers, agents and servants, as are necessarily appurtenant to the operation of the said bank; and shall allow to each of them, as well as to the president, such salary or compensation as they may think proper.”

If the legislature had intended that the clerks and servants of the bank should be appointed annually — that the duration of their office should be for one year only, it is surprising that this should have been left to mere implication. They had expressly provided for the annual appointment of directors in the section preceding. In this very section the office of president was expressly made an annual office. The lawgiver seems to us to have considered the subj ect of legislative limitation material only with regard to those who were to govern and control the institution, leaving the matter as to the agents and servants of the corporation to the discretion of the governing power, who were, in this very section, authorized to make by-laws for the better administration of their affairs. Of these agents the cashier is a very important one, and we find provision is made in the charter with regard to his bond ; but nothing is said as to the duration of his office; no qualifications, as in case of directors, are prescribed ; and no provision, as in their case, that he is to hold over in case no election is made on the day fixed. Yet the same clause which grants the power to appoint the cashier, provides for the appointment of clerks. As regards appointment, they all stand on the same footing.

The expression “ acting directors ” does not appear to us to aid the construction contended for. These words are equivalent to, or at any rate are not more favorable to the defendant than, the expressions in the charter of the Bank of Maryland — “the directors for the time being shall have power to appoint a cashier, and such other officersand servants, etc.” In Ridgely's case, already cited, these words were commented upon, and it was very properly held that they must be understood as meaning only that, whenever for any reason the appointment of a cashier should be necessary, the then board of directors should be authorized to appoint.

■ It is said, however, that, in this case, there was a reappointment of Duplessis : and the counsel rely, to show this fact, and as indicative also of the construction put by the directors themselves upon the charter, upon an entry in the minutes of the board under date of 3d March, 1841. It is in these words : “ Mr. Reynes moved that the officers and clerks of the bank be confirmed in their respective situations, which was agreed to unanimously.” This resolution is fully susceptible of being construed into an expression of the will of the board that the clerks and servants of the bank should continue; as an approval of past appointments, and not a new appointment. Such is, indeed, the fair import of the language, and the opposite interpretation is strained. If, however, it could be treated as an appointment, and not as an approval, .if was an unnecessary and superfluous act. Duplessis would have remained in office without it, and it cannot be considered, especially under the broad expressions used in ¿he bond, as destroying the liability of the surety. In the case of the Dehham Bank, already cited, three successive “ rtelections ” of the cashier, expressly so denominated on the minutes, took place. But the point was considered, and disregarded.

We find nothing in the authorities cited at bar which conflict with the view we have taken as to this point of the defence. They are easily distin-

guishable from the case before us. In the case of The Liverpool Water Company v. Atkinson, 6 East. 507, the bond commenced by a recital that the principal had agreed to collect and receive the rents of the company from time to

time, for twelve months from the date thereof, and the condition was, if the defendant should from time to time and at all times thereafter, during the com. tinuance of such his employment, use due diligence, pay over, etc. The defalcation occurred after the expiration of twelve months. It was held that the obligation was confined to the period of twelve months mentioned in the recital; and very reasonably, for the surety reading the whole instrument would naturally understand that he was to answer for his' principal for that specified period. So in Lord Arlington v. Minicke, 2 Saunders, 411, the bond recited that the plaintiff had appointed P. to be his deputy postmaster, for six months. The generality of the condition for fidelity, during all the time he should continue deputy postmaster, was held to be governed by the recital. In the Wardens of St. Saviour’s v. Bostock, it was admitted by the replication that the principal’s office, that of collector of parish rates, was an annual office. 5 Bos. and Pull. 177. In the United States v. Kirkpatrick, the commission of the public officer, in conformity to the provision of the act of Congress, was, by express terms, limited to continue to “ the end of the next session of the Senate and no longer,’' and the bond in question was given with express reference to that commission. Hence the court held that, its obligatory force Was confined to acts done while that commission had a legal continuance, and could not go beyond it. There was in that case also a new commission, different in date and nature. The case of the collector of poor and church rates, in 2 Bingham, 32, (Deadly V. Evans,) was also the case of an annual office, so fixed by law. So'also in Bigelow v. Bridge, 8 Mass. 276, the office of the principal, a county treasurer, was annual by statute.

In conclusion, we remark, that we concur with the plaintiff’s counsel in the opinion that the defendant could not have misunderstood the terms of the bond ; and must have considered himself as becoming responsible for Duplessis’ honesty, as long as the bank should think proper to employ him, in the capacity designated in the instrument. This is the plain and natural construction of the language used.

II. The next ground of defence taken by Ledoux is, “ that he is discharged from all liability to the plaintiffs, because the bank, although called on by the defendant to take legal steps against Duplessis, refused to do so, and allowed him to abscond.”

The facts material in the consideration of this point are that, on Sunday, the 29th October, 1843, the first discovery of a deficit in Duplessis’ account was made by the cashier. A part only of the deficit ($2,600,) was discovered. On the day following, when Duplessis came to the bank, the cashier told him of this deficit, when he appeared surprised, and said he would settle his account. The cashier waited, and at twelve o’clock of that day Duplessis left the bank without settling his account, returned before three, and then left the bank and never returned. The cashier communicated the discovery on the same day to the president, and a special meeting of the board was called for tuesday morning, when the cashier was directed to make a thorough examination of Duplessis’ account, which examination was not finished till friday night, the 3d November. On tuesday, the 31st October, the cashier, by order of the board, addressed a letter to Ledoux, through Hall, the agent of Ledoux, then abroad, slating that he had discovered that Duplessis was a defaulter, so far as ascrtained, to the amount of $2600, and that if, upon a thorough examination then in progress, a further responsibility should be discovered it would be immediately communicated. This letter appears to have been handed to Hall on the day of its dato ; and on that, or the following day, Hall called on the cashier and enquired if Duplessis, had been arrested, and was answered that he had not been. “ Witness (Hall) in substance stated, he thought it the duty of the bank to arrest him, and unless the bank had him arrested, he as agent of Ledoux, did not feel authorized to pay the amount. Witness then offered the cashier to pay the amount of the defalcation then claimed as agent of Ledoux, if the bank would take steps to have Duplessis arrested. The cashier said he did not think it his duty, or that of the directors, to have Duplessis arrested, but that a special meeting of the board would be called that evening for the purpose of submitting witness’ proposition to them. At the next interview, between the 31st October and 4th November; 1843, he saw the cashier again, who said that the matter had been submitted to the board, who stated “that they had nothing to do with it.” The witness also deposed that, “ Ledoux, being absent, witness was not aware whether or not the signature to the bond was genuine; and in offering to pay the defalcation as then claimed, he stated to the cashier that any thing he witness would do, would be subject to the ratification of the signature to the bond by Ledoux”; that he offered to draw a check the same day, or the day after the letter was received; that he was told some days after by Duplessis’ brother that he was still in town. Duplessis absconded, but on what day does not appear. There is no proof that he left any property. On the 4th of November another letter was addressed to Ledoux, stating that although the investigation was not completed, a deficit to the full amount of the bond appeared.

The defendant relies on article 3030 af the Civil Code, which is the same as article 2037 of the Napoleon Code, and upon the opinions of certain of the french commentators and tribunals as to its just intendment.

Under the roman law it seems that, the refusal of the creditor to sue upon the request of the surety would not operate the surety’s discharge. “ Si fidejussor creditori denunciaverit, ut debitorem ad solvendam pecuniam compelleret, vel pignus distraheret, isque cessaverit: an possit eum fidejussor doli mali exceptione summovere ? Respondit non posse.” L. G2, ff. De Fidejuss. “Although it be the interest of the surety thdtthe creditor should recover payment from the debtor, yet he cannot oblige the creditor to sue him for it. For the creditor may defer the discussion of the principal debtor without losing the security which he has taken by having another'pcrson bound for the debt.” Ilomat, book 3, tit. 4, sec. 2, art. 5.

If we look to the litteral language of art. 2037 of the Code Napoléoni and the corresponding article of our Code, it would require an act of the creditor to discharge the surety: “Tlie surety is discharged when by the act of the' creditor the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.” The subject, however, has given rise to much controversy. The distinction has been raised between a positive act and an omission. The high authority of Potbier and Toullier is in favor of the opinion that the creditor is affected by positive acts, and not by a simple omission, while some other distinguished commentators hold him liable in certain eases at least of omission, such as the neglect to make a seasonable reinscription of a mortgage. Without adopting either of these conflicting theories in their full extent, we are of opinion that, under the circumstances of the present case, there has not been such an omission, as would authorize us to consider the surety discharged.

The surety was promptly notified of the defalcation. If he desired to have» Duplessis arrested under the act of 1840, it was fully in his power to have obtained anprder of arrest, by paying the bank. The bank had done nothing as regards Duplessis to disqualify itself from exercising the right of arrest. It cannot be said that, by reason of any thing which had" occurred, the surety oh paying would have found himself incapable of exercising any right which the bank had ever possessed. The omission charged is the mere omission to exercise a l-ight of action dt suit, to which, in the particular case, the law accorded the auxiliary remedy of a restraint of the debtor’s person. The argument is, that if Duplessis’ person had been taken, he would either have given bail or remained in prison : that if he had given bail and then departed, the bail would have been bound, and a new surety thus acquired, the benefit of Which would have accrued to the defendant; that if he had, on the contrary, not chosen or been able to give bail, incarceration might have induced him to disgorge what he had embezzled, or some portion of it. But we cannot destroy the contract of the parties upon these vague probabilities. The chances were within the reach of the surety ; and it was. his duty, if he desired to avail himself of them, to pay, and take the weapons of the law into his own hands.

In Boutte v. Martin, 16 La. 136, the point in question was considered. The suit was against two sureties on a note, and Judge Martin there said : “ The defence of the appellant was that the plaintiff had neglected to sue the principal in the note, although earnestly urged to do so, and that he had indulged him with a prolongation of the day of payment. The first plea was correctly disregarded. It is an idle one. The creditor generally requires security to avoid suing the debtor; and the surety cannot require, before the creditor resorts to him for payment, that he should sue the principal. If he wishes the principal to be sued, he must pay the debt, and then exercise the rights of the creditor, to which payment subrogates him; or proceed according to art. 3026 of the Louisiana Code to be indemnified by the principal debtor.” See also the case of Cougot v. Fournier, 4 Rob. 420.

It is said that the defendant had not sufficient information to justify him, in foro' conscicntim, in making the affidavit for arrest, even if he had paid the bond. The argument seems to us unsound. The bank gave him prompt information of the discovery of irregularities in the clerk’s.accounts. They informed him that a thorough examination was in progress; they notified him, as soon as it was ascertained, fhat the defalcation exceeded the bond. It is not pretended that there were any other sources of information' than the books and records of the bank, nor that the defendant, ifhe had-applied for permission, to examine them, would have met a refusal. Such an examination, which in law the bank would have been bound to permit, would have afforded him the same means to take the oath conscientiously, as the cashier or president possessed.

If, under the evidence, wo could discover indications of a fraudulent connivance at the escape of" Duplessis, the case might perhaps present a different legal aspect. But the testimony does not authorizethat inference. It is negatived by the prompt notice given to the surety-

In the consideration of this question we have examined- the authorities of the-eourts of common law and chancery. Under that jurisprudence it would seem, according to some of the authorities, that the neglect to sue, even upon a request en pais, would be a good defence; but with this qualification, that it must be shown that the surety has been injured, and that at the time of the request the principal was solvent, -and subsequently became insolvent. The reluctance with which the doctrine, even thus guarded and qualified, has been adopted in some courts of the Union, may be ascertained-by reference to affew noted cases. In King v. Baldwin, 2 Johnson, Cha. Cases, 561, Chancellor Kent, in a very elaborate opinion, held- that a surety was not discharged by a demand enpais upon the creditor to sue the principal. Bis decree was after-wards reversed in the Court of Errors, but, under what circumstances, maybe seen by the report of the case in 17 Johnson, 385. In Warner v. Beardsley, the chancellor, with the result of whose opinion the court unanimously concurred, thus comments upon the reversal of Chancellor Kent’s opinion : “Though Chief Justice Spencer afterwards succeeded in this court, 17 John. 386, in reversing, the decree of the chancellor, it was in opposition to the votes of all the other justices of the Supreme Court who took part in the decision. The decision was made by the casting vote of the president against the opinions of ’some of the most distinguished lawyers in the State, who were then members of this court as senators. It also stands in opposition to the decisions of most, if not all, tlie States in the Union,, where the question has arisen.” After thus reluctantly acceding to the opinion of the Court of Errors in King v. Baldwin, as a- binding authority, he observes : “ I am not, however,, disposed to carry its principles any further, or to, extend it to. cases in which the facts are materially different. Tobring.a case within that decision, it is necessary for the surety to show that the principal was solvent at the time he requested the creditor to proceed and collect the debt, and was within the jurisdiction of the State, and that the creditor,, without any reasonable excuse, neglected or refused, to proceed until the principal debtor became insolvent and unable to pay.” 8 "Wendell, 199.

It must not be forgotten in the* consideration of this subject that, our Code has made a very liberal provision for the surety, and has put into his. hands very enlarged means of self-protection. “ Article 3026. A surety may, even before making any payment, bring a suit against the debtor to be indemnified by him: 1st. When there exists a lawsuit against him for payment. 2d. When the* debtor has become a bankrupt, or is in a state of insolvency. 3d. When the* debtor was bound to discharge him within a certain time. 4th. When the debt has become due by the expiration of the term for which it was contracted. 5th. At the expiration of ten years, when the principal obligation is of a nature to last a longer time, unless the principal obligation, such as that of guardianship,'be of a -nature not to 'be -extinguished before a determinate time.”

A very liberal interpretation of this provision wasgivenin Cougot v. Fournier, 4 Rob. 420. There Fournier -was the surety of a curator who had administered unfaithfully; and, having converted the funds of the -estate to his own use, made a cessio bonorum. The surety resisted a suit upon the bond, upon the ground, that the plaintiff ought to have opp'osed the surrender made by'the curator to his creditors, as the claim was for a sum of money deposited in his hands in a fiduciary character; that such an opposition would have deprived'the curator of the benefit of the-insolvent daws, and prevented his discharge ; -and thatthe plaintiff’s failing'to make the opposition ought to have-the-effect of discharging the defendant from all responsibility as surety. But the court-said, the surety, under art. 3026, was clearly competent to make the opposition' himself, and to avail himself of all the objections that could have been made by the creditor. They also observed that the effect of the-surxender did not go further than to discharge the debtor from imprisonment.

If, however, this court were permitted, in disregard^ of'the opinion-in Boulie v. Martin, to consider the refusal to procure the arrest of Duplessis-as affecting the liability of the surety, to what extent coujd it possibly be affected ? 'Certainly only to the extent that the surety-could establish injury. This results very clearly from the analogy-of the-law on -the subject of discussion. Overlooking the faot that Ledoux was bound in solido, and not-expressing any opinion as to his right of discussion, let us suppose that he had, upon baiDg sued, claimed the right of discussion ; what would have been his duty and his right in such case.? His duty would have been to point-out to the creditor the property of the principal debtor, and furnish a sufficient sum to have the discussion carried into-effect. Civil-Code, 3016. What his right would then be, is shown by the succeeding article : ■“ When the security has pointed out property in the manner directed in the foregoing article, and has furnished a sufficient sum to have the discussion affected, the -creditor is, to the amount of the property pointed out — Jusqu'á concurrence des Mens indiques — responsible to the security for the insolvency of the principal debtor, provided it has occurred through remissness in commencing proceedings.” We hold -it to -be clear that the measure of relief for the omission, could not go beyond the injury sustained. See Troplong, Cautionnement, § 572. Here we have no proof of actual injury. The case is left upon conjecture, as already noticed. A large portion of the embezzlement took place months before. Non constat, that any thing could have been extracted of the last embezzlement; no tangible property of Duplessis is shown ;' and even that-bis person was not, at the trial of this cause, within -the jurisdiction of the court, does not appear.

I-II. The next ground of defence isr “That Ledoux has been discharged from all liability on the bond, in consequence of the gross neglect of the plaintiffs to perform the conditions expressed -and implied which were incumbent upon them, and which formed theconsideration of his contract as surety.”

In support of this point the defendant relies upon-the by-laws of the bank, and the testimony of the cashier. These by-laws require the cashier to take charge of the cash, daily to examine the settlement of the cash accounts of the bank, and, in case of material disagreement, to report the same at the next meeting of the board; to lay before the. board, at each of their meetings for discount, a general statement of the accounts of the'bank. They also require, as to -the directors, .that -a committee of three shall visit monthly the vault in which the cash and other effects shall be deposited; cause an inventory to be made of the same, to be compared with the books, in order to ascertain whether they perfectly agree therewith, and shall report the result of such examination to the board. A semi-annual balancing of the books was also directed, the settlement to be examined and certified by a committee of the board.

It is not pretended that the cashier ever discovered any irregularity in Duplessis' accounts, before the 30th October; or that any report had been made by him before that time, which ought to have excited the suspicion of the directors. But it is contended that, if the cashier had discharged his functions with proper minuteness and accuracy, he would have discovered the frauds of the clerk. If the cashier did neglect his duty, and the directors knew it, the argument derived from the alleged remissness of the cashier might require .consideration. But the .mer,e fact of a want of due vigilance on the part of the cashier, unaccompanied by knowledge .on the part of the directors, seems to us .entitled to no weight. It cannot he said that if ope servant of a bank neglects his .duty, and by his carelessness permits another servant of the bank to commit a fraud, the surety of the fraudulent .seryant shall be thereby discharged. We shall, therefore, consider the point with reference to tjre conduct of the board .of directors.

We think it satisfactorily proved that the frauds of Duplessis might have been discovered at an earlier period, if minute and searching .vigilance had been exercised by the monthly and semi-annual committees. “ It would require much labor,” says the cashier, “to examine .the items ,of ¡the accounts thoroughly, but if .that were done a deficit could be found out.” He adds that, he •supposes, in .this case, that the committee were imposed upon by false entries. There is also reason to suppose that the clerk introduced into the bundles of notes fictitious notes., or perhaps papers labelled to represent them. In his books the frauds were attempted to be covered up.by forced balances.

The enquiry into the effect of the facts above stated upon the legal rights of .the parties resolves itself into two branches; of which the first is, whether •those by-laws of the bank,are to be.considered as entering into the contract of the surety. They certainly are not referred to expressly in the-bond. It was conditioned for the faithful performance of Duplessis’ duties. There was no express qualification that the surety would be bound only in case the directors should vigilantly discharge their duty according to the by-laws of the bank. As between these parties we feel bound .to say that, the by-laws are directory to the managers of the .institution, .a.nd do not form, a part of the contract with Ledoux. See Angelí & Ames on .Corporations, and the authorities there cited. The question then remains whether, under the terms of the bond itself, .and the general principles .of law as affecting the contract, the absence of minute .vigilance o.n the part .of the directors unaccompanied by fraud, discharges the surety,

Ledoux bound himself for -the ho.nesfy of Duplessis, and he has been unfaithful. To say that the obligee has not exercised as rigid a surveillance over him as .there might .have been, ,is .to interpolate in the instrument a clause •which the .parties did not adopt for themselves, and give it effect as though it .had been, not.a guarantee that Duplessis should.be honest, but a guarantee that he.should be honest if .closely watched. If Duplessis had offered such a bond when he was appointed note clerk, can it be supposed for a moment that it would have beep accepted ? Clearly not. The language of Chief Justice MaJ'shall, in the .case already cited on another point, is very pertinent here.: “ The sureties do not become sureties in consequence of their confidence in the directors, but of their confidence in the agent whose sureties they are.” See also The Trent Navigation Company v. Harley, 10 East., 40. Angell & Ames on Corporations, 317. 2 Metcalf, 241. United Stales v. Kirkpatrick, 9 Wheaton, 737.

We have considered this case at length, because such an examination was due to the importance of ¡the subject, the very elaborate ,manner in which it has been presented by counsel, and the yerdiet of the jury, who found for the defendant. We have been unable to concur in the-verdict, and our deference to the finding of a jury cannot be carried so far as to overthrow our own clear convictions as to the law and facts, both of which it is our province to examine and pronounce upon. We must attribute the verdict toan erroneous conception'of ¡the legal effect o,f a want of ex,act and searching vigilance on the part of the cashier, and perhaps of the directors; ¡and probably, the refusal to have Duplessis arrested contributed to turn their minds in favor of the surety, whose case is certainly unfortunate. We have expressed' .our views upon all these matters; and, in conclusion, may ¡add ¡that Duplessis. would not have received the trust which he has violated, unless his honesty had been guarantied; and that in justice the burden of his misconduct must fall upon the party whose guarantee .obtained for him the confidence .of his employers.

It is, therefore, decreed, that the judgment of the.eou,r,t bejoyv in favor of Amaron Ledoux bearev.ersed; and that the plaintiffs recover .of the said Amaron Ledoux the sum of $12,000, with interest thereon from the 25th October, 1844, until paid,, w.it.h] costs of the proceedings in the court,belojy,.and of this appeal.


text:
    Cartwright v. McMillen et al.
    Where on a suspensive appeal taken by the plaintiff from a judgment rendered against him, the condition .of the bond was, " that the appellant shall prosecute his appeal, and shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied out of the proceeds of ¡the sale of his estate, if he be cast on the appeal, otherwise that the sureties shall be liable in bjs place,” and the judgment on appeal merely decrees the appellant to be the slave of the appellee and gives the latter her costs, the sureties in the appeal bond cannot be made liable, in an action on the bond, in damages, for any injury sustained by the master .from tfie loss of the services of the slave. The terms of the bond do not cover such a loss, and the liability of ¡the suretv .c.annot be extended. In such a case the judgment would be satisfied by delivering the slave and paying the costs; and the sureties cannot be made liable for .the non-delivery of the slave, without having previously been put in default.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Preston, for the appellant.

      Reynolds, Van Matre and Randall for the defendants.
   The judgment of the court was pronounced .by

Slidell, J.

The plaintiff alleges that, in 184J, a judgment was rendered in his favor, in a suit brought by his slave Lewis against him for his freedom; that Leíais took a suspensive appeal, giving bond with McMillen and Nichols, as his sureties, in the sum of $1200; that, in 1844, the judgment was affirmed by .the Supreme .Court; that nevertheless the slaye did not surrender himself in execution of the judgment, and could not be found until 1846, When he was arrested and delivered to petitioner; that in consequence of McMillen and Nichols having become sureties in the appeal bond, and the said Lewis having been thereby enabled to absent himself, he has sustained damages to the amount of $1200, being the amount of the loss of the slave’s services from 1841 to 1846, for which the defendants are liable in solido.

The suit is clearly upon the appeal bond, and the liability of the sureties must be tested by the terms of the bond. Its recital and condition are as follows: “ Whereas the above bounden Lewis, a free negro man, has this day filed a petition ofappeal from a final judgment rendered in favor of the defendant with costs in the suitof the said Lewis against Jesse Cartwright,in the first judicial District Court of the State of Louisiana, on the 21st day of June, 1841; now the condition of the above obligation is such, that the above bound Lewis, f. m. c. 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 the sale of his estate, real or personal, if he be cast in the appeal; otherwise that the said Duncan McMillen and Nathan Nichols, sureties, shall be liable in his place.” The guarantee given by the sureties was, that the judgment which might be rendered against the appellant should be satisfied. Wbat was the judgment? Jt affirmed, with costs, the judgment rendered by the court below. It, therefore, finally decreed that Lewis was the slave of the appellee, Carlivright, and and gave eosts.

A satisfaction of this judgment involved two things, and nothing more: 1st. That Lewis should surrender himself to his master as his slave. 2d. That the costs of the suit should be paid. The judgment merely ascertained a question ■of property; it .did not determine what damages the owner had incidentally incurred by the litigation carried on .against him by his slave. Take an analo-» gous case: Suppose the slave Lewis had wrongfully been taken from Cartwright by a third person, that Cartwright should sue such person, and there should be judgment for Cartwright, decreeing him to be the owner of the slave. From this the defendant takes a suspensive appeal, and the judgment is affirmed. The sureties in such an appeal, upon a bond expressed as the present bond, would be considered as satisfying their bond by delivering the slave, and paying costs.

It is true, as argued by Cartwright's counsel, that the appeal arrested the execution of the judgment, and prevented him from enjoying the services of the slave; but the terms of the bond do not cover such a loss. We must take tlie obligation as it is, not as it might have been, or as the court might have ordered it to be made. The liability of the surety must not be extended.

Such being the extent of the obligation, the next question is, how it was to be enforced. We do not consider it necessary to say whether the creditor was bound to issue, and attempt to execute, a writ of possession, before he could reach the surety. Concede that a formal action by judicial process was not indispensable in a case of this sort, which is certainly peculiar, still we think Cartwright was bound to put the sureties in default, by calling upon them to put him in possession of his slave. It is not proved that this was done. We also remark that Cartwright took the matter into his own hands before the final action of the Supreme Court. He actually regained possession of the slave, who subsequently escaped from him, without the fault of the sureties.

The case might, perhaps, be .considered as standing upon a different footing, as regards the costs which were adjudged by the Supreme Court. It might be said that the sureties were directly liable for them, because Lewis, being a slave, could have no properly upon which the judgment could be executed, and consequently that an execution for costs against the principal would have been a vain formality. See Alley v. Hawthorn, An. 122. Civil Code, 175. Butitisun'necessary to decide the point, as the costs of the former suit are not claimed, nor proved in this.

We have considered this case with reference to the liability of the sureties upon the appeal bond, which is the basisof the action. What would be the liability of the parties upon the sequestration bond given in the case of Lewisv. Cartwright, is a question not before us.

Judgment affirmed.


author: Slidem,, J.

text:
    The Planters’ Bank of Tennessee v. Byrne.
    An attachment must be dissolved, where a bond has not been given *' exceeding by one-lialf the amount which the plaintiff claims,” as required by art. 245 of the Code of Practice. And where the amount claimed is a sum, with interest at a rate named, from a certain date, the amount of the bond must exceed by one-half the principal and interest due at the com. mencement of the action. Where a certain sum is claimed with interest, but neither the rate of interest, nor the time from which it ran, are specified, the claim for interest may be disregarded in fixing the amount of the bond.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      C. A. Jones and L. Gibbons, for the appellants.

      T. A. Clarke, for the defendant.
   The judgment of the court was pronounced by

Slidem,, J.

\ On motion, the court below dissolved the attachment issued in this case. The correctness of this judgment is the only question before us.

The numerous points presented by the appellee in support of the judgment, have been ably, and some of them, perhaps, conclusively met by the appellants. But there is one of them that has not Been satisfactorily answered, and upon which the judgment must Be sustained.

The Code of Practice requires that, the attaching creditor, as a prerequisite to obtaining the writ, must give a bond in favor of the defendant for a sum exceeding by one-half the amount which he claims,- with a surety, etc., as a security for the payment of such damages as the defendant may recover against him, in case it should be decided that the attachment was wrongfully obtained. See C. P.245, etc. t

It was reasonable that, the amount of the bond should be controlled by the amount of the debt sworn to, because it is to that amount that the property of the debtor may be summarily wrested from his possession. It was also just, to extend the required security somewhat beyond that amount, in consideration of the expense and injury to which the defendant might be exposed by the direct consequences of the proceeding, beyond the mere value of the property attached. The law contemplates the provision of a full and ample indemnity.

This prerequisite must be strictly construed and rigidly enforced. The remedy by attachment is an extraordinary one; dispossessing the party of his property, before his indebtedness is judicially ascertained, upon the ex parte showing of his adversary. Hence it has been repeatedly held that, the legal prerequisites must be fully complied with, under pain of nullity. 3 Rob. 233. 3 La. 18.

In the present case the amount stated in the affidavit for attachment was, “ $2270 71, with interest as set forth in the foregoing petition, and costs.” Recurring to the petition, which must be taken as controlling the affidavit, and ascertaining the amount claimed for interest, we find that back interest was demanded for about eight years at six per cent per annum. The writ of attachment followed the affidavit, and commanded the sheriff to seize for an amount sufficient to discharge the debt and interest. The defendants property was, therefore, taken from him without such a previous provision for his indemnity as the law required ; for the aipount of the bond given was $3500, while it should have been for a much larger sum, in order to exceed by one-half the amount claimed as due at the inception of the suit. See Graham v. Burckhalter, 2 Annual, 415.

The case of Pope v. Hunter, 13 La. 398, differs from this, because there the affidavit stated a certain sum as due, “besides interest, damages, etc.” The bond was properly proportioned to the sum named, and it was considered that the Words “ interest, damages, etc.” were to be disregarded, because neither the rate of interest, nor the time for which it ran, were stated. Upon inspecting the record of that case, we find that the writ of attachment was only for the sum specified, and was silent as to damages and interest.

Judgment affirmed.


text:
    The First Municipality of New Orleans v. Blineau et al.
    A resolution of a municipal corporation, directing a soap factory in a particular street to be' removed within a certain time, Unless put in such a condition as not to be a nuisance, and imposing a fine of $50 on the parties interested in the factory for every infraction of the resolution, in case',- after the time limited, complaint should be made by any three inhabitants under oath, that said factory continues to be a nuisance, is illegal, and cannot be en. forced. Stats. 7 JUne', 1800', s-1; 14 March, 1816, s. 1. Per Curiam-. A fine is a pecuniary punishment for an offence against the laws of the municipality. An Ordinance imposing a fine is a penal enactment; and must be general in its operation. An ordinance may impose' fine's on persons carrying on offensive trades in a certain street, or suburb, or district, where' they would be injurious to the public health; but an ordinance designating one individual, or one establishment, and subjecting the owners to punishment, is contrary to common right.
    APPEAL ffom a judgment rendered by & justice of the' peace in New Orleans.

      Morel and Preaux, for the appelants,
    cited stats. 8 March, 1836, and 14 March, 1846. Const, art. 128. 4 Blacks, p. 118. 10 Wendell, 101. 2Cowen,3I6,

      Roselius, for the appellant.
    The resolution should have been of a general character; directed against the defendants personally, it is illegal. Lex esi commune precept-urn. Jura non in singulas personas, sed generaliter conslilu-untur.

   The judgment of the court Was pronounced by

Eustis, C. J.

The council of the First Municipality of New Orleans, by resolutions approved by the mayor, directed the Blineau Soap Pactory, carried on by one of the defendants, in St. Anne street, in the suburb Tremé, to be removed within twenty days, unless it should be put in such a condition as not to be a nuisance; and ordered further that, at the expiration of said twenty days, on the complaint of any three inhabitants under oath, that the said factory continued to be a nuisance, the said Blineaii, or any persons interested therein, should pay a fine of $50, for each and every infraction of these resolutions. Cordier was condemned to pay a fine of $50, for violating these resolutions, and has taken an appeal to this court, under the 03d article of the constitution, which authorizes the Supreme Court to take cognizance' of the constitutionality and legality of fines, forfeitures, ond penalties, imposed by municipal corporations.

The power of the council of the municipality to impose fines for the violation of municipal ordinances is conceded, and the duty of the municipal government to maintain, by all lawful means, the cleanliness and salubrity of the city, and its possession of ample powers to that effect, are not questioned. But it is urged by counsel that, the imposition of a fine must be by ordinance ofa general character, operation, and effect; and that individuals cannot be affected by the passage of resolutions against them personally, as, it is contended, is done' in the present instance.

The case has been presented to us without any reference to any of the city ordinances imposing fines on persons committing nuisances of this description, 'The question made is, as to the right on the part of the council to subject the party to the fine by virtue of these resolutions. Waiving the distinction between resolutions of a municipal body and ordinances, had the council the power to impose a fine on the owners of this particular soap factory, or was it necessary to impose the fine by some general regulation ?

By the law of 1806, the city council of New Orleans was authorized to impose fines, not exceeding $100, for every offence against the by-laws and ordL nances Which they are empowered to make; and, by the law of 1816, authority is given to that body to pass such by-laws and ordinances as Stay be' deemed necessarj to maintain the cleanliness and health of the city.

A fine can be considered as nothing else than a pecuniary punishment for an offence against the laws of the municipality, which the by-laWs and ordinance's in fact are. An ordinance imposing a fine is, in every sense, a penal enactment,, and by its essence must be general in its operation. There could be no objec-» tion on the score of legality to an ordinance imposing fines on persons carrying on offensive trades in St. Anne street, or the suburb Tremé, or in any district in which they would be injurious to the public health;. but to designate one individual, or one establishment, and subject its owners to punishment, appears to us to be entirely inadmissible, and contrary to common right. We think the exception is well taken by counsel, to the legality of this fine. The exercise of a power like this assumed by the council of this municipality, Would be attended with most dangerous consequences. Indeed it has more resemblance to an imperial rescript, than a rule for the conduct of citizens under a government of laws, enacted by a body possessing mere powers of administration.

The judgment appealed from is, therefore, reversed; and judgment rendered for the defendants, with costs in both courts.

       Similar judgnionts were rendered, at the same time, in three other cases between the samo parlies. R,