New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-02-24

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COURT RECORD.
McsDAY, FEBRUARY %. 1871
United States Circuit Court.
Presentation. W. B. Wood, circui
Judge; Hon. f. II. Durell, district judge.
United States vs. j. Z. Hadnot at also
trial.
Supreme Court.
+. b. Cruttschnitt, Of Orleans. was at
united to practice.
The court adjourned to March >.
First District Court.
ISFoRMATIoNs FILED.
Assault and Undergraduates Stafford
Isaac Williams, Reuben Holmes. Josep
Silvan.
Assault with dangerous weapon-IIer
rietta Johnson
Larceny-Randolph Brown. e. kirkland
James White, Aieck Smith, William Brown
Henry Sirez, Frank Lewis, Benjamin
Meyers.
Burglary-Henry Ray, alias job nson.
Entering dwelling house, etc.-Henr,
Duyal.
TRUE BILLS.
State VS.. Philip Hoe!zel.-Knowingly re
Ceiving stolen goods.
State VS.. Peter Keveney.-Assauls and
Sattery.
ARRAIGNED.
State VS.. A. C. Billings.-Murier. Plea OF
not guilty and counsel assigned.
JURY
Three hundred jlrymen ordered to be
Summoned for the next panel.
SENTENCED.
State VS.. Pierre Ricbard.--As5ault and
battery: s. tineo
on TRIAL.
State VS.. George Mayer.-Murder.
Second District Court.
Succession of Edward Caldwell opened.
Fifth District Court
Tho following decision was given by
Judge CullOms
William Bogef vs. Teutonia National
Bank.-On the ninth day OF December.
1873. the plaintiff drew check on the Teu.
tonia National Bank for 1864 IS. which it
refused to payo BOgel had had an account
current with it for some time, during which
the aggregate transactions amounted to the
rise OF $l43,700. 1t appears by an account
on file that on the seventeenth day of Octo.
Der. 1873 there was balance on deposit in
Bogels favor of 1854 &c. This is Bogel's
account. On the nineteenth Of June. 1871,
the following note was made:
New ORLEANS, june ~. 1871.
Sixty days after date promise to pay TO
60 the order of William Bogel, six hundred
dollars, at the Teutonia National Bank,
value received. j. NJ. WAGNER.
Endorsed: WILLIAM BoGEL.
j. M. Wagner was, during all this time.
cashier of the bank, and also acted gener.
ally as the agent of BOgel.
When the note became due he was still
cashier. 1t was not protested. Bogel was
temporarily absent from the city; but his
dOmicile and place of business were here,
where notice of protest should have been
served. The banks rendered accounts from
time to time, but made no entry of tho
eharge against Bogel for the note above
mentioned. Wagner. after some months
delay. instructed the bank to charge Bogel
with the amount OF SAID note, and it was
accordingly done. Another account was
then rendered to Boge, and Wagner's note
was charged therein to him. The note it.
self, with other checks which Bogel had
drawn on the bank, was returned to him,
He kept it several months without notifying
the bank that he objected to Its being
charged to him. and without offering to re.
turn it.
In the meantime Wagner's misconduct as |
cashier had begun to become apparent. and |
not willing to meet the results thereof. he |
absconded. After his departure, Bogel |
drew the check now before me, and which |
FOR non-payment was duly protested. |
d'yaendo, as well as the pleadings on file,
1T was contended by defendants counsel |
that Wagner being the general agent of |
turn from the North, directed the bank to
charge the note of 5000 to him, it was bind
ing on him. 1t was also maintained that
Bogels failure to object to it, and his long
retention OF the note amounted to acuui-
escence in the charge, and a waiver of the
want OF protest On the other hand, it was
argued that the rendition of three cOnsecu-
va a,,l hn1,
which no entry was made of Wagner's note,
was proof that the bank had never re.
garded him as being liable for it.
III was also contended that the want of
protest released him from any liability for
the payment thereof, and that, although
Wagner was his general agent, he was not
authorized to charge him on his bank ac.
count with the amount of his individual
lote. As to the last point, | may here re- |
mark that, according to the general tenor
If authorities the authority OF an agent to
eceive notice of protest for the principal | ,
must be shown to be clearly such as en-.
tiles him to do so. Cross VS.. Smith.
iaule and Sew. ID and 552. Louisiana |
state Bank VS.. Ellery. \ 5 81. The same
'rinciple was held in Montillet VS.. Duncan. ,
| NJ. 53l.
The failure to protes, was. of course, ,
atal to the continued liability OF Bogel. but
S agent. could Wagner bind him by order.
~ the bank to charge his account with the !
ote! No. G. G. art. 1897. sec. !. The
ower mus: be express and special to {
uthorizc an agent TO contract a loan
r acknowledge debt" The moment I
he bank failed to protest that instant a
Soges was legally released. and owed {
othing.
Touching the question raised by counsel j
Dr. defense as TO the effect of Bogei's long |
Hence after the note had been charged TO f
i'm, and his retention of it as a voucher Il
ithout Offering to return it to the bank, | {
N at some loss to conclude. This perpleX. | t
y is attributable solely to the fact already p
entioned-that the bank had on three oc. a
lsions after the note should have been | a
rendered a balance account to | j
Dgel without making any mention of it, II
uiing all this time it is evident Bogel was | d
It liable. and l think it would require a d.
reich of authority for Inc to say that Sc
s silence, when there was absolutely Is
legal obligation. was equivalent.
der the circumstances, TO a renewal
his acknowledgment of indebted
IS on account of the note. The aban. =
nment of right is never presumed 'e
emo faeile prdesumit,T donare." See M
n. Digest, page 49,, Nos. s and 9, and au.
,rities there cited. Such is the language
the Supreme Court with reference to To
sumptiOns, which, it says. should under
circumstances be weighty. precise and
sistent, and such the maxim having its or
ndation in human nature. The case is, en-
nth tho y,taintfH