New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-06-07
THE COURTS.
Eighth District Court Important Decis-
ion by Judge Dibbie-The Chatfa-

inn by Judge Dibbie-The thatfa'
moo ga Railroad Conference.-The.
r C. Mahon VS.. A. Dubuclet; Joseph
Hernandez, Patrick Frizzell, Intervenors.-
Judge Dibble Yesterday morning rendered
the following decision IN this case, giving
Judgment in favor of the intervenors
The plaintiff alleges that he was holder
and owner of two certain State warrants.
une for $l523 80. and the other for Sl523.
These warrants were drawn by the Auditor
upon the treasury, in favor of }. ii. keefe,
and by him indorsed. They were numbered
respectively 202o and 2U2o, ana were uateu
ayaiv I3 1860.
Petitioner AYERS that in the month of
-, 1870, he permitted George Nj. Wick
life, then Auditor, to have possession OF
these warrants, for the purpose OF assisting
him in his defense against certain charges
preferred against him in the Legislature;
that this possession was only temporary;
that Wickliffe had no interest IN the war,
rants and yet that he fraudulently and
fe!oniously detained them from petitioner.
The plaintiff then set forth that he had
good reasons for believing that the war
rants. so stolen from him, had been pre-
scented TO the State treasury, and We're
about to be paid; wherefore, he asked that
the warrants be sequestered IN the hands
of the persons presenting them, and from
the State Treasurer and he prayed that
after due proceedings had, he be decreed to
be the owner, and to be entitled to the pos
session of the warrants.
writ of sequestration issued, and the
warrants were seized in the hands of the
State Treasurer, made defendant. He
subsequently set aside the writ and took
possession of the warrants upon giving
bond.
Patrick FrizzeH and Joseph Hernandez
respectively filed petitions of interyen-
ton, the former claiming to be the owner
of warrant No. 2O25, and the latter of war
rant No. 2026.
Each intervenor AYERS that he bought the
instrument in the market overt for valua-
BILE consideration, and without notice of any
claim of the plaintiff thereto.
On trial, it was shown that the plaintiff
owned the warrants that he loaned them TO
Wiekliffe in January, 1870; that Wicklitfe
never returned them.
Plaintiff, however, made no publication
of his loss. He gave notice to the Treas
urer. and in November, 1870. obtained an
order of injunction against the payment of
the missing checks.
On the part of the intervenors, it was
proven that they bought the warrants in
the ordinary course of trade for a full con-
sideration, and that they had no notice
of the claim of this plaintiff or of any
fraud.
Provision was made by an act approved
March 10, 1870, to fund the floating debt of
the State. These warrants were entitled to
he paid out of the fund. The board of
iiquidators required that all evidences of
debt should be presented to the Auditor to
be examined accordingly. 1t appears from
the testimony that when these intervenors
bought they first required that the war
rants should be certified as correct by the
Auditor.
The question of law involved in this case
-. %l..N.o 81 I
cred as personal property in contemplation
of our Civil Code or whether they are to
be treated by the commercial law, and
whether (he commercial law considers them
IN the nature of negotiable instruments,
passing title by delivery when Endorsed in
blank.
The Civil Code provides that the pos
SCISSOR of a movable thing which has been
lost or stolen shall only acquire a perfect
title after prescription of ten years: if,
however, the pOssessor of the stolen thing
bought it at public auction, or from a per
son in the habit of selling such things. the
owner upon recovering it, shall be obliged
to refund to the possessor the price he gave,
If he has possessed it for over three years.
C. C.. 1906, 1907, 3508, 3509 j R., l6.
But if these instruments come within the
the commercial law, they will be governed
thereby. The code does not treat of the
peculiar rules of that system, and vet an
article of the code expressly takes CONNER
cial paper out of the rules established in the
articles above cited; ''all effects negotiable
or transferable by Endorsement or deliv-
cry" are prescribed in five years. C.. c. 1910
The trainers of our code intended to leave
commercial jurisprudence as it was before.
IN harmony with that of other commercial
nations, and an article of the code inconsis-
tent with this presumption Will be disre-
garded.' r., 124, An, 2l0.
an my opinion warrant drawn by the
auditor of Public Accounts upon the State
Treasurer Endorsed in blank by the payer.
is transferable by delivery, and if acquired
in good faith for a valuable consideration,
property passes with possession.
The form of these warrants is prescribed
ny law. The Auditor certities that sum
of money is due by the State to some per
son for something, and he directs the Treas
9Irer to pay to that person or order the said
sum, and to charge the sum appropriated
for that purpose. Revised Statutes section
tS3.
The evidence of several brokers, taken in
This case. is to the effect that these instru.
anents are regularly dealt in as commercial
securities; that they are daily bought and
sold in open market, and pass, if regularly
Endorsed in blank, by simple delivery.
Such customs of trade, if general, make
she law of commerce. The courts are as
st had been enacted in the form of a statute. !
Council for the plaintiff cite the case of |
Samuel Smith & Co. VS.. the State Treasurer, |
lately decided by the Supreme Court of our /
State, as sustaining their position in this |
controversy. But that case differed in sew
eral respects from this. The Auditor had |
issued warrant for the payment OF certain
forged coupons presented to him. The |
payee sold the warrant to Smith & Co. The
Auditor subsequently discovered the fraud
and gave notice to the Treasurer not to paw
Mandamus was applied for to compel the
Treasurer to take the warrant.
The inferior court took the position that
because the Legislature had enacted laws
making warrants receivable for taxes, and
thus invited the public to deal in them and
because of the character of the Auditors
certificate under seal, the State was estopped
from setting up the invalidity of the instru-
ment in the hands of the plaintiff who, the
court thought, had acquired for valuable
consideration, and without notice of fraud
The Supreme Court did not sustain this po-
sftr0r, and expressed the opinion that the |
holdersO the instrument were not entitled |
TO those special rights and immunitles which |
the law merchant ascriDes to the bona tide !
holders of promissory note or bill of ex- |
change.
But there are numerous decisions to the |
effect that instruments of this character. |
not strictly regarded as commercial paper, |
are vet transferable by Endorsement and |
delivery.
In the case of John Baldwin VS.. Charles |
Edv. 9 Howard $50. the Supreme Court |
of the United States decided the legal point
which | have been discussing in this suit |
The court held, with dissent, Mr.. Justice
IaUey rendering the decision, that war