New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-05-20
THE COURTS.
Fourth District COurt-Interesting Deci-
sion by Judge Theard.

sion DIV Judge 1neafu.
On Saturday the tenth day of December
last. two swindlers doing business in this
city under the name of Clayton, Williams q
Co. made at short interval two depes-
its of forged checks in the Louisiana
State Bank, amounting to about twenty
thousand dollars. After etfecting the first
deposit they drew from that bank on their
own check the sum of five thousand dollars,
which was paid without any suspicion of
fraud. Encouraged by their success they
attempted to draw a second check for ten
thousand dollars. But the officers of the
bank becoming alarmed postponed its pay
ment until the following MONDAY, in order
to ascertain from the banks on which they
were drawn if the checks deposited by
Clayton, Williams & Co. were good.
Between three and half-past three o'clock
on Saturday evening the runner of the Lou
isiana State Bank was sent to the various
banks, who declared verbally that the
checks were good, and would be paid at
the exchange on Monday morning Two of
the checks, one on the Hibernia Bank and
the other on the Germania National Bank,
were certified in writing to be good. But
the forgery having been discovered, these
two banks now refuse to honor their certiti-
cation.
The object of this suit is to enforce the
payment of these two checks certified to be
good. not to their full amount, but simply
TO recover the net amount of which the
Louisiana State Bank has been defrauded,
viz S46S5'40; and it is necessary to add that
the cause of action is founded not only on
the certitication of the bank, but on the
ground that by their negligence in not dis
covering in due time the forgery, the Lou
isiana State Bank was unable to cause the
arrest of the guilty parties.
1t is commended on behalf of plaintiff that
the Hibernia and Germania Banks are
estopped from denying their signatures; that
their certltcatlOn is equal to their bank
notes; that they are bound to know the sig
nature of their depositOrs; and that for the
purposes and guarantee of commerce they
can not be listened to in their Defense which
sets up that the loss sustained by the Louis
b lana State Bank had already occurred when
they enormously certified as good the checks
sued on.
To such a doctrine, which is the arbitrary
one laid down In Price VS.. Neal, Burrows,
1854. | can never yield. The modern iuris-
prudence is more liberal, and a distinction
has generally been made between the cases
in which the acceptance of the drawer or
the certifcatien of the bank has caused a
pecuniary loss to the. holder, and those in
which the situation of the latter has re-
manned unchanged up to TIE time of the dis
covery of the forgery. Sec Morse on Banks,
p. 28S. ct seq, IA A. 45S ..s -.
can well understand that if the holder
of a check presents it to the bank for GER
tifcation, and upon the faith of such Ger
titicatiOn a party purchases the paper in
good faith and for value, it would certainly
be inequitable to allow the bank to deny
the genuineness of the drawers signature.
But if the situation of the holder remains
unchanged, if he is yet in possession of the
forged check, and if no loss has resulted to
him in consequence of the certifcation prier
to the discovery of the forgery and the
notice thereof, can it be said with reason
that the bank is bound anyhow!
In the case before me. the evidence leaves
no doubt i'll my mind that the loss sustained
by the Louisiana State Bank had already
occurred when the Hibernia and Germania
oanks We're called upon to certify the
forged checks drawn on them.
IL the forgery had been discovered at the
time of presentment; IT, consequently, the
tellers of these banks had refused to certify
the same, then the loss would have irrevOc-
ably been fastened on the Louisiana State
Bank. But the forgery was not discovered
the checks were certified. Can that acct
dental fact change the pecuniary situation
of the parties Can the act of the tellers,
an error accidentally or unknowingly com
mitted, resulting from the pressure of work
or fatigue. a moment of negligence or mat
tention-can that error, | say, transfer to
the bank the loss already sustained by the
holder! 1t may have been the law of Lord
Mansfield in the last century, but present
the question to the forum Of conscience and
wait for the answer.
The first ground of the present action, |
viz: that the Hibernia and Germania banks !
are estopped from denying their liability,
resulting from the certiicatiOn Of the |
checks, is. therefore, untenable.
But the evidence sustains the second. |
ground, tOwit: THAT if said Hibernia and |
Germania banks had used proper skill and |
care, and had detected and denounced the |
said forgeIies at the time when said checks |
were presented for certifcation, the Louis |
lana State Bank would have been warned |
of the fraud practiced on them, and would |
have had ample time and opportunity 10
have protected themselves from loss by |
arresting the persons and attaching the |
property of Clayton, Williams & Co.
This allegation is proved beyond doubt. !
The checks were certified between three
and halt-past three. One of the most skill
full bank detectives, Smith lizard, was at
half-past three, at the Canal Bank. next
door to the Louisiana State Bank. He |
could have been informed of the fraud. and
he certainly would have arrested the two
thieves, who, at halfpast four, were quietly
counting their money at their store, at
about half dozen squares from the scene
of their exploits.
The certification has therefore thrown the
Louisiana State Bank off its guard. 1t was
disarmed by the announcement that the
checks were good. Its suspicious immedi-
ately disappeared, and the consequence
was that the thieves escaped on Sunday,
and that the Louisiana State Bank was
placed in the impossibility of recovering
its loss. For this reason, and no other, the !
Louisiana State Bank is entitled to iudg-
ment as prayed for against the Hibernia
and Germania banks
Eighth District Court-Decision by Judge
Dibble.
We present below the opinion of Judge
Dibble, refusing to grant to the Board of
State Assessors writ of mandamus upon
the Auditor to compel him to issue warrants
in their favor for compensation in collecting
the one per cent State tax.
State Of Louisiana ex rel j. G.. GOlding
ct ais, VS.. James Graham, State AUDITOR
The REALTORS were members of the Board of
State Assessors for the parish of Orleans
during the year 1867. They aver that by
the provisions of act No. So of 1865, their
annual compensation as assessors was fixed
at three per centum on the amount of taxes
on property, gross receipts, etc. They claim
that they are entitled to receive the said
percentage upon the amount of the one
per cent tax levied by act No. ia, of 1868,
approved September %, 1868, the rolls of
1867 being used as the basis of this tax.
They allege demand and refusal, and pray
for the writ of mandamus to compel the
Auditor TO issue warrants or certificates of
Indebtedness for the amount claimed. forty
four thousand and sixty six dollars and
tOrty-tOur (S4i,O66 44) cents. The respondent.
by the Attorney General, sets upon record
matters of defense in the return, but the
case must 20 off upon the plea of prescrin