Louisiana State Insurance Company v. Louisiana State III, N. S. 610.

Bank.

A bank is not relieved from the obligation of due diligence, in the case of a note received to be collected, by the removal of the maker's domicil out of the city.

*

FIRST District.

MATHEWS, J., delivered the opinion of the court.

This is an action commenced by the Insurance Company against the Bank, in which damages are claimed from the latter as a remuneration for a loss occasioned to the former, by negligence and misfeasance of the officers of the bank, in the collection of certain notes which were placed in their hands by the insurance company, and which they undertook to collect. Judgment was rendered for the plaintiffs in the court below, from which the defendants appealed.

This case is similar in principle to that of Montillet v. United States Bank, and Crawford v. State Bank, 1 N. S. 214, 368, 708.

The correctness of those decisions was admitted in argument by the counsel for the appellants, who contends that there is one fact in the present case, which distinguishes it from those cited, and ought by its operation to release his clients from all responsibility, which might otherwise have arisen from negligence and mismanagement in the undertaking. This is the change of domicile of the maker of the notes from New Orleans before they became due. This suit is a sequel of that brought by the same plaintiffs against Shamburg, decided as shown by the report in 2 N. S. 511. In that case they failed to recover from Shamburg, the endorser of the notes in question, on account of the negligence of the agents of the bank in not making a demand of payment from the maker, in the manner required by law. It is contended in favor of the bank, that its officers are justifiable towards the plaintiffs in not having made this demand, in consequence of the removal of the maker of the notes from the city before they fell due. In support of this justification, it is alleged that the bank never undertakes to collect money on notes or bills, when the collection requires operations out of the city of New Orleans, and that the implied contract and consequent obligation to collect ceased, on the removal of the maker of the notes, especially as this fact was known to the owners. In answer to these arguments, it is said by the counsel for the appellees, that the bank could have released themselves

* Judge PORTER took no part in this opinion, being a stockholder of the bank.

[Louisiana State Insurance Company v. Louisiana State Bank.] from this obligation, to collect, under the implied contract, only by returning the notes to the owners, after the fact of the maker's removal became known to them. Further, that they were led into error by the protest made by the notary who acted for the bank, because that instrument declared that a legal demand was made, and notice had been regularly given.

That the officers of the bank knew of the change of domicile by the maker of the notes before they became due, the evidence of the case abundantly shows. The knowledge of this fact is not so clearly brought home to the appellees; and even if it were, it ought not to change the situation of the parties, so as to release the defendants from their obligation to take all legal steps to collect the notes which they had undertaken. Their duties as agents, could have ceased in no other way, than by a return of the notes to the owners, or an explicit declaration that they would no longer act for them.

The erroneous conduct of the notary, in making a mistaken or false protest, certainly had a tendency to injure the plaintiffs; by it, it seemed that every thing had been regularly and legally done, which was necessary to charge the endorsers. They were thus lulled into security, and of course took no means to do that which they supposed had already been well done by their agents. Admitting this to be true; it is contended by the defendants that they ought not to be made responsible for the misconduct of the notary; being a public officer, he ought to answer directly for his conduct; that a protest could only be made by a notary, and when the bank placed the notes into his hands, its officers had fully and faithfully executed their

trust.

In the case of a foreign bill of exchange, the dishonor of which can only be evidenced by protest, this argument would be entitled to great weight. But inland bills and promissory notes do not necessarily require protests by notaries; a demand of payment, refusal and notice to drawers and endorsers may be proved by any competent witness. In the present case we deem it proper to consider the notary as the agent of the bank, because they did by him, that which they might have done themselves.

The appellees claim interest on the amount of the notes from the date of the demand of payment and protest; now no demand was made. The present action sounds solely in damages for negligence and misfeasance in the officers of the bank; it is perhaps true that a fair criterion to ascertain the amount of damages, is the loss of the plaintiffs, occasioned by the misconduct of the defendants, which is alleged to be the sums specified in the notes with legal interest from the day, on which they ought, regularly, to have been protested. If it had been so adjudged in the court below, we would perhaps not have disturbed the judgment. The contest may, as the cause now stands on an appeal, and being a suit for damages, be considered as among those little things which the law does not regard; de minimis non curat lex.

[Louisiana State Insurance Company v. Louisiana State Bank.] However fair and legal the judgment may be, it is a hard case on the defendants.

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

Duncan, for the plaintiffs.

Grymes, for the defendants.

Saulet v. Dreux's Syndics. III, N. S. 615.

FIRST District.

A judgment reversing that by which a syndic was appointed, does not avoid acts done by him in the meanwhile.

The law has not fixed the number of days during which the sale of an insolvent's goods is to be advertised.

Mayner v. Rollins. III, N. S. 618.

FIRST District.

A contract made double, in fact, but with no mention made of it, is good as a beginning of proof, à plus forte raison than would be a contract not made in as many originals as there be parties.

EASTERN DISTRICT, JUNE TERM, 1825.

Flood et al. v. Shamburgh. III, N. S. 622.

Where the rules of court do not require a replication, all means of defence are left open to the plaintiff.

The widow who accepts the community, may be sued in the district court.

The wife who has taken an active part in the community, or has not made an inventory, cannot renounce.

What is full value in money for a note, is a question of law.

Usury may be committed by agreeing to take the legal rate of interest, on a larger sum than that really lent.

FIRST District.

PORTER, J., delivered the opinion of the court.

The petitioners state that in the beginning of the year 1823, the late William Flood being in want of money applied to defendant for various sums, which were lent him and which he repaid with usurious interest; that among other transactions he gave his note to defendant on the 6th of January, 1823, for 10,000 dollars, on an usurious loan, and made a mortgage without any consideration for the same sum of 10,000 dollars. That the defendant has frequently and publicly declared, that the estate of Flood was indebted to him in both the amount of the note and the mortgage, and that he would institute suit on both, and claim the sum of 20,000 dollars, with interest and costs.

They further state that by reason of these allegations they have

[Flood et al. v. Shamburgh.]

been hindered from selling, and disposing of the estate, or settling the demands against it. That they have frequently and amicably requested the defendant to present his claim, which he refuses to do, but continues to boast of his demands, and prevents the petitioners paying one James Erwin who is a creditor of the estate.

The prayers of the petition are:

That the defendant may be ordered to set forth distinctly the nature of his claims against the estate of Flood.

That he may be ordered to institute suit thereon within ten days from the service hereof, or on making default, that it may be declared the estate is not indebted to him.

That the mortgage may be declared null and void.

That the defendant may be condemned to pay the petitioners, the sum of 24,000 dollars, for his unjust boasting.

That he may be condemned to refund and pay 2000 dollars received by him for usurious interest, between the 1st of January, 1815, and the 1st of January, 1824.

That he may set forth in his answer all the circumstances attending his transactions with the deceased.

The answer denies, that the defendant did ever jactitate or boast, he had a claim against the estate of William Flood for 20,000 dollars, or that he had refused or delayed to bring his suit on the note due him, or in any manner impeded the settlement of the estate; but that on the contrary, he and one James Erwin filed a petition in the court of probates, praying to be paid the amount really due; and afterwards filed another to the like effect against the widow as curatrix of the minor children. That these proceedings were stopped in consequence of an agreement made with the executors, that they would deliver notes received for the sale of property of the estate, which agreement they have failed to comply with. Judgment is therefore prayed by way of reconvention, for the sum of 10,000 dollars, with interest and

costs.

The answer proceeds to deny that the consideration of the note and mortgage is, or was usurious, or that the deceased paid him illegal interest, between January, 1815, and 1824. That the note was given for money loaned to Wm. Flood in his lifetime at a year's credit, and that the mortgage was given to secure the same. It concludes by praying judgment against Mary Flood who has accepted the community, and against the minor heirs.

The cause was submitted to a jury on special facts; upon their finding the court below gave judgment in reconvention against the plaintiff, for 8800 dollars, with interest at ten per cent., from the 6th of January, 1824, until paid, and costs of suit. The defendant appealed, and the plaintiffs have prayed the judgment should be amended in their favor.

The first question necessary to be decided is, the legality of the judgment in reconvention in reference to the plaintiffs, who are minors, and who have necessarily accepted the succession with the VOL. III.-16