New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-06-05
COURT RECORD.
WEDNESDAY. JUNE 4, 1873.
superior District Court.

Superior District Court.
Reuben White and Laban C. Tomkies We. Louis
lana Levee COmpany.-Petition set forth that
David J. Elder of whom petitioner executors,
contracted with defendants 70 construct levees
in CaddO. That he proceeded with the WORE
from the twenty first Decem ber 1871, to the sixth
of December, 1872 when he died. Petitioners
completed the contract, BY constructing 23,812
cubic yards thirty cents. That the estate is in
solvent and prays for judgement OF $40 60.
John T. Hamlin VS.. Board OF School Directors
Suit for repairing Fisk and Franklin schools TOR
$3.50.
First District Court.
State vs. John Galleway.-Larceny. Solle prose
qui entered.
of habeas corpus. Dismissed and accused re-
manded to prison.
State Vs. William Davis.-,Larceny Jury failed
TO agree, and mstIial entered.
State vs. Edward Adams.-Larceny. Verdict,
guilty.
J. R. Beckwith VS.. James E. Zuutz.-Suit for S 500
for fee in assisting in defense of defendant hen
sued for damages tor an assault and battery. Yer
dict for plaintiff for &250.
Fifth District Court.
Eshty-six Jurors out of the $50 summoned an,
swered to their names. Attachments were issued
for the others.
J. NJ. Lupery VS.. the Bank of America The
plaintiff alleges that ne despOsted pTomisso1y
note made By Jean Aurianne for 5000, bearing
eight per cent per annum interest, with the Bank
Of America for collection That SAID note was 10.
.
eightee tn day of April AID. 1870, the third day Of
grace on said note expired; that the bank placed
appointed notary OF said bank to collect or pro-
test III default OF payment That the notary left
the notice of protest in the hands OF one Jean
Laribeau, who was the indorser thereon; that the
bank did not exercise that prudence, care and eau
ton in ascertaining the whereabouts and identity
ofthe real indorstr which the nece OF the case
required. That the notary neglected bis duty IN
the premises, and that the bank IS responsible.
Thendorser has been sued, but this court released
protest. Hence the petitioner prays for Judgment
against the bank for 5000, with eight per centum
per aDnum interest thereon from April Is, 1867;
also for 81, cost of protest, and s29 costs paid
the clerk of this court in the suit OF plaintiff VS..
Jean Laribeau. The bank pleads the general de
NAL and for further answer says, that Joseph
Cuvillier, the notary mentioned, has
ever been an officer in good repute for skill, eype
rience ard fidelity in the discharge of the duties
years employed by respondent TO execute
protests and perform the other acts required
TO fix the liability Of parties to protested
in the premises the bank is not liable as
charged 1t prays to be hence dismssed with
costs 1t is admitted that il is incorporated-that
Joseph Cuvillier is the notary of the bank. There
is no .pue about these facts but the contest
grows out OF their legal consequences the plain
t ifs counsel relies upon the d. cisOn in Ettine vs..
where the court declared that where an agent,
acting in the of his 1n
in the discharge of some duty incidental to his sit
uation, does any act, causing damage to another
the corporation will be resp ,nsible:', alter
where he acts of his own free will, without refer,
ence to his functions as an agent The court
refers to Wallins We. Shreveport ; A.. 600 the
necessarily rest upon the nature of the duties
to be performed by the agent. There is a very
wide difference in the functions of agents. and
While we have general laws which define them
and which Fl K the liabilities of the principal, Still
those liabilities must be made to depend entirely
OIL such facts as sre peculiar to the functions OF
the agent. For instance, an Overseer, or cOnduc
tor OF railroad, is supposed to act under the con
slant dire non of his principal and OF course, the
responsibility follows. or at least the onus il
thrown the principal TO show that acted out
side the scope of his employment. But the notary
beng a sworn officer although the agent of the
bank in certain sense only that is for the pur
pose of protesting, etc, acts under the SANCTION
and the Obligations of his oath as a commissions,
State officer, and not under the direction OF tht
bank. 1890.
See Revised Statutes sections 2503 252l and 1927
His duties are regulated by law and the banl
had no power TO interfere with him in dischargirl
them. SOtaries as other law ofcers, such al
clerks of courts, sheritts constables and Others
are installed Office for the purposes of bushes
and of government. All persons must tIansac
their business through them whenever the author
ity and the enforcing power of the government
are invoked. They have in many instances dis
cretionary power as to which among several OH
GERS they will apply to for the performance Of fuuc
lions deemed necessary to the enforcement of the!
rights. The bank, in this case was compelled t
invoke the services OF notary for the purpose o
protesting the note in question II could rot nav
j
| to employ proper officer II employed Mr.. Gu
villier, who for many years, has been notary o
| fine repute in this city.
The question here decided is: Did the bank do it
| duty thereby to the depostor! If yea, then j
owes the plaintiff nothing; If lay II is responsible
for the payment Of the u0te, with interest, costs
etc, as demanded.
| 1t has not been shown that the bank, in leavin!
| the note with Mr.. Cuvillier was chargeabe witt
| lack of that reasonable precaution 1.-THE absenc
| of which would create a responsibility which
| man of ordinary prudence would have exercise
! under similar circumstances IN the transaction Q
| his own business. On the contrary, 1t is yer.
satisfactorily shown that it not careless in tn
choice of its agent. Mr.. Cuvillier is well known t
all business men in this city as notary in good re
| pute and ss such worthy of the confidence tn
| bank repesed in him. Pabeus Us. Mercantile Bank
% Pickering, p; $50; Etna Insurance Company "
Alton City Bank, Is H., 2i3 1t is strong evidence
of due care ON the part of the bank that III thl
| case it selected the notary which it was wont t
employ for the transaction Of IT'S own business of
| 354. Warren Bank VS.. Suffolk Bank 10 Cushing
| Reports, p. 5a. Such evidence is ordinarily cor
| siGered conclusive on the question of due after
| ton care and prudence. See the case of Hyde We
| the Planters Bank, II L., p 500 Where the cour
held under very similar state OF facts, tina,
| where the defendants have exhibited that care
| attention and diligence which men of common prl
| dence bestOw on their affairs, they hay
done for the plaintiff all he would have done 70
the note in his own possession until its maturity.
| Greater diligence and greater prudence than
| here exhibited, it would be unreasonable an
| unjust to require" The true test Of prudence an
diligence in such cases in the selection of the sub
| agent or officer. If the bank has made choice 0
| one known to be competent and trustworthy
! nothing further can reasonably be required OF i
Such is the tenor OF the authorities on the subiec
| And when it had selected such officer as it is
| the habit of employing in its own business OF
similar nature the ODus is on Palntlff to show II
Iemies- in its selection. The court went SO "a
| as to hold that the official caracter of one dul
| commissioned by the government, afford prim
facie evidence eff satisfactory in the selection
Stacy VS.. Dane County Bank, II Wis Reports
629. The bank was, therefore, warI anted, and moi
particularly SO as the notary passes under til
| tongue of good report, in confdinS the duty
| protesting the note sued on to the attention OF VI
| Cuvillier notary, etc.
In the case of Baldwin vs. the Bank of LO1isian
| Slidel Judge, held that when bank in which
note has been deposited for collection, in case
non ynent places it for protest in the hands of
notary to whom its own business is uniformly Il
trusted it will not be responsible for the failure
the notary to protest the note or to notify II
| proper parties. Having shown the same care al
attention in the management OF business lntrustt
| to it which men of common prudence bestow
their own affairs. it is not answeTabe for the n
| glect of the notary" | am led by the fOregOlI
| reasoning and fully sustained by the authOrit
| cited, to opne that the bank has shown due di
| gence and care in the premises, and that it IS
| liable.
Were different rule to prevail, the banks won
| cease to become the depositaries of paper for CO
| lection, and thus deprive the entire mercanti
| and trading community Of one of the create
| facilities now enjoyed. The depositor and plant
| NAV have right of action for the loss sustal ne
| but l am convinced it does not lie against the ban
| 1t has performed its entire duty.
| The Jurors summoned to attend this court W
| be heavily fined in they fail to appear to re
| der jury service during the present month of JuI
The RaiIrOad Meeting.