New Orleans Republican., 1873-04-10
COURT RECORD,
WEDNESDAY. APRIL 9. 1873.

| WEDNESDAY, APRIL 9, 1873
| The several district courts adjourned to-
{ day to Saturday morning.
Supreme Court.
II. Il. Magruder and Samuel H. Lewis,
| after examination, were admitted to prac-
| tlce IN all the courts of the State.
| State of Louisiana ex rel. John N. Bon
neT Us. b. l.. Lynch.-Argued by counsel.
Superior Disrics Court.
State of Louisiana ex rel. A. p. Field, At
torney General, on information Of Gus
tave BOuligny VS.. Edward Fulton.-Peti-
tion filed in above entitled cases sets forth
that the defendant is intruding into the
office of -four inspector of New Orleans.
and prays for restraining ipjunctiOn.
E. Newgass vs. "a. Dubuclet.-In this case
on motion of the Attorney General the in
junction herein issued has been 80 modified
as to allow tax collectors 60 pay into the
treasury all warrants they may have re-
ceiyed up to dae, in payment of taxes.
Ezra HieStand vs. city OF New OrleanS.-~
Before Judge beaumont, Judge Hawkins
recused. Judgment for plaintiff against
the city for $25,64l 76.
Second Districs Court.
The SUGGESTIONS Of Caroline Davis, wife
of T. Mccarthy, David f. Morris, Charles
n. Wilson, Frank Quirk and Lewis Smith
were opened.
Fifth District Csurs.
Harris Richmond ct al vs. +. O. Minor
Decision by Judge CullOm:
This suit is based on a promlss0ry note
for 1919 "a, made payable to the order of
Arnold Weber, who indOrsed it in blank
and signed by "F. o. Minor, captain com
manding company 1t comes up now on
an exception taken by defendant, in which
he pleads, first, no cause of action, and sec
ond, he AYERS that the petition is illegally
drawn, and contradictory upon its face, in
this that the prayer thereof is for judg-
ment against respondent, personally, where
as the note declared on and filed with said
petition appears to have been made by F..
o. Minor in q representative capacity, i. e.,
as captain commanding company. He,
therefore, prays for the dismissal of the suit.
In support of this exception he cites the
case of Nicholson vs.. Chapman, l A,
222, in which the court said that the
word appended to the indOrser's name is
notice that the note belonged to the estate.
and that it can not be indorsed without an
order of the court, and the purchaser is
bound. at his peril, TO ascertain whether
such order exist" Notes belonging to
succession are not negotiable by the syndic
or administrator, without an order OF the
court, and hence as every one is presumed
TO know the law, the word syndic was no
tice that had no right. as such, TO transfer
the note. it was not presumed that the
court had authorized him to dispose of it,
and the transferee was bound to examine
for himself. He also cites the case of Gao
Ion VS.. Matherne, in An, 496, where they
held that, "A note which shows Oh Its face
that il was given by a married woman, is
sufficient notice to any one to put him on
inc ury as TO whether it Injured to her sepa-
rate use, before he discounted it, or whether
the authority of her husband could be dis
pensed with" The reason Of this de-
csion is so similar to that in the case of
Nicholson We. Chapman, just cited. in that
the law in both cases prohibits such trans
actions, except under specified crcum-
stances, and the courts can not presume in
either case that the conditions under which
the law prohibits them have been Ohvia.ed
by compliance with its necessary require
meDts. Every one knows that a syndic is
a representative, and that representative.
commissioned by the court, can not indOrse
the paper he holds as such, so as to convey
a valid title thereby without an order OF the
court. So, too, every one knows that mar
ried women are not authorized, except in
particular cases, to sign promissOry notes,
and therefore in both cases there is, from
the very nature Of our laws, notice to all |
persons that such persons are not independ- !
emily authorized to sign and transfer prom
issory notes. Counsel also refers to Par |
sons on Notes, vol. |, y. 81, ct seq., and !
notes. That author says "lf an agent of |
an Incorporated company make d note be- |
ginning L PROMISE etc, and sign it a b,
agent of - company, it is quite we'll set |
tied that the company, not the agent, will |
be liable on the note. And the same rule |
applies portion to the case OF public off |
GERS or agents appointed to discharge pub |
lie trusts and duties" He also cites the |
opinion of Chief Justice Swift, in Huyey vs. |
Magill e Conn. Reps, p. 6S0j. whore the |
defendant, being the agent OF corpora.
ton, gave note in the torn above gwen, |
the judge said: when an agent. duly au-
thOrIZed, subscribes an engagement i'll such !
manner as 10 manifest an interest not 70 |
bind himself, but to bind the principal, !
then it is clear that the contract can not be |
binding personally. The intention must be
taken from the whole instrument taken |
together. We are bound to give effect to |
every word if possible: and the only way |
to give this word any effect is to make the
note binding on the company" Shaw. C.. |
j laid it down as rule, that "where the |
person signing processes not to bind him
self, but adds the name of another to indi-
cate his capacity or trust in which he acts. |
or where the 81 signature indicates that he is
performing merel Y ministerial function,
giving authenticity to the act, promise or
all the cases cited there was a principal
who could bind himself, either a corpora
ton or a natural person. In this instance
there is no one who stands in the attifude
Of principal except the defendant. This
military company is not a corporation.
It can not sue or be sued, because
40 name has been given it legisla-
lively. The name is OF the very essence
,f it constitution, without which it
,an perform no corporate functions what
'over. See Smiths Mercantile Law, edition
If 1857, page III. Where corporations
,xist by Legislative acts the courts take
judicial notice of them. 1t is not custom
iry to incorporate military companies, and
therefore they can have no agents except |
uch as may represent the persons com |
posing them in their individual capacities.
suppose in this case the plaintiff lad iusti-
uted his suit against the company, what
lame would he give it in his petition! |
Upon whom could the service have been
egaIly made! Would not an exception
aiken to the liability Of the companv for
want Of incorporation be maintained with |
mt hesitation by the court! In this case
he defendant has not disclosed who his |
principal is, and he can not escape rrsp0n- |
ihility. See Parsons on Notes ami Bills,
}. lO5 See alsU Story On Agency see. I55; |
.lso sec. $50
The whole doctrine proceeds upon the |
,lain principle that he who is capabIe ct |
and does not contract in bis
'wn name, although he is the agent Of an
ther who is incapable OF contracting, in. /
ends to bind himself since n no oil |