The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-05-01
THE COURTS.
united states circuit Court.

L
| OPEN COURT TO APPOINT MASTERS TO DETER
MINE SOME OF THE CLAIMS.
| Yesterday morning the great Gaines case "as
considered In chambers to consider some ms s.
by which settlement OF the numerous ciailne
| should be effected.
J. Mcdonnell, Eco, took occasion to say that
| plaintiff had frequently been reported as uesl-
rous OF adjusting her claims by hDeral co..p aa
misses with the parties involved: Delenua t NV NV
not have the means OF carrying the case up othe
Supreme Court of the United States, ana ne
wished TO know If any proposition would now oe
made by PLAINTIFF counsel. 10 wmcp, We are
given to understand, there was no reply
IN OPEN COURT.
Mr.. Mcdonnell filed motion on behalf OF hve
Of the defendants, asking that masters IN
chancery should be appointed to examine ih. 9
the improvements on the land in litigation, ana
audit the accounts between the plsintlh. 1he
court took the motion under csnsioeratloh'
The Louisiana National Bank vs.. the new or-
leans Savings Bank.
Judge Woods presiding TINS was an , escep-
ton on the plea OF res jtdicdtd raised by DEFEND
ants. The opinion Of the court, orally given, was
about as follows:
"a case on the same facts originated in the su-
perior District Court of New Orleans under the
| title of the Louisiana National Bank We. Citizens
plaintiffs claimed that they had paid t27OO to
defendants on check signed by the cashier OF
the Bank of Mobile. The signature was found
to be genuine, but it was discovered that the
| figures had been ralseu lTOu u UucH
| sum, say $G5 or $50, to s270O.
Defendant called the New Orleans Savings
Bank (Which filed its answer in warranty, as the
agent of the Bank OF Mobile. The State court
decided the matter IN favor OF plalntlii, but the
Supreme Court of the State reversed the judy
ment. -
Suit is now instituted by the plaintiff vs. The
New Orleans Savings Bauk in the Circuit Court
| Defendants raised the plea oil res JudtcdtG
The question to be determined is whether the
case made In this petition 10 the same as that
made in the p tition before the State court, or
whether the proceedings in the latter court should
be bar to this suit.
The opinion OF the court IL that the present
cause OF action is not the same, the difference
being that in this suit it is alleged that the New
Orleans Savings Bank indorsed and thus guar
anteed the genuineness OF the check. IL is q
different cause aud against different party.
This opinion had no reference to the merits OF
the case but the plea OF res judicdtd cannot hold
II IL true the State law makes the warranty
real defendant to a suit-a real defendant OF
what2 OF tho case brought against the real de-
fendant.
E. D. Morgan va. J. A. RI y or, Trustees, vs.. the
N. O. Mobile and Tex Railroad Com
pany and others.
The report of the special master in this cause,
relative to the xsmns alton OF the books vouchers
and accounts Of compainants, was confirmed.
Fifth District Court.
THE LIABILITY OF BANK CASHIERS sURET1Es.
Most of our readers will remember that some
time ago one Wagner, cashier of the Ieutonla
National Bank, alb conded with y large amountof
that institutions funds, and it WAS supposed
sought Texas as place of refuge.
There was considerable correspondence about
adjusting the deficit, between the bank aud Wsg-
ners friends. but naught came OF II, and civil
suit against the sureties on the esrsy cashiers
bond were sued individually.
The lab lily of sureies on cashiers bonds has
not hitherto been definitely settled in this State,
especially with regard to drafts accepted aud
checks casbed; but now in the decision given be-
low, and for the reasons enunclated by the Judge,
there will be less doubt in the future. All Of our
banking institutions are inerestei in the matter,
and rs the case was sort OF cause ce9etfe IN
financial circles, we give the decision In full.
Judge Rogers read the following reasons for
judgment Monday morning.
Teu.ona National Bank va. J. M. Wagner ct
al.-No. 5557.
On the various points submitted In this case D.
exception aud determined by my learned brother,
after careful consideration, the Court concludes
they should not be considered again In passing
upon The merits of this cause.
After the ympletion OF the bond it YVES deter
mined by the board of directors OF the bank to
cancel the bond OF Chas Pothof, who, as dl-
rector Of the bank, was prohibited by law from
signing the bond. This WAS done with the con-
sent of Wagner and the bank; the other sureties
we're not Notified.
fonda ts, Oertllng, became substituted for Pot
hoff In the bond.
The real question is did this fact OF the dis
charge or reease of Pohof vt'iate the bond and
operate discharge to the other suretiee?
This case has been presented to the Court by
counsel with great care and ability, and have
given much time to consideration Of the points
} suggested aud the authorities to which have
been referred.
There can be no question that an alteration Or
change in an instrume mt which affects the labili-
ties OF the parties to the ms rumsnf, or reieases
one surety without the consent Of his co-surety,
yit Of }ha hand hut lnnppHa ir,
the nature Of the instrument and the ma ure u
the obligations assumed.
The authorities relied on by defendants ali
sustain this theory, but it will be seen from ex-
animation thai they are decisions upon obligations
joint and several in their nature, where each
party was bound for the entirety either by con-
vention or operation OF law. Under such con-
} tract the party who pays has recourse against
, his cosmetics, and can force contribution.
There are the obligations to which the articles OF
the Code cited by def ndant refer
l In the case before the court, thu sureties have
stipulated and determined the extent OF their
liability, not for the full amount OF the bond nor
, for equal portions, but iu certain determined and
, specified amounts-some for greater amounts
than the others. No matter how extensive the
, defalc alton in excess OF the amounts Tor which
, they bouad themselves, they could not be held
} responsible. Although the suretles have APP
peared aud bound themselves in the same act, |
am Of the opinion that it has the same erect II
they had executed their obligations as individuals
in sep rate and distinct acts. The obligation Is
several and privty exists between the CO sure
e lies. G. y. 2O73-20o4.
r. is also coutended that the discharge OF Pott-
T hoff affects the motive which induced the de-
, PENDANTS to bind ,hemselves-that as Potthof
was all officer of the bank, he could the better
care for the interests Of the suretes, and enjoyed
opportunities t. supervise the acts OF the cashier.
under our law, sureties who bind them
selves for principal who obliges himself
to we'll and faithfully discharge his
, duties, guarantee the int gritty OF the
officer. 1t is their confidence in his fidelity and
ability that induces them to undertake the bond,
not m strust and dependence upon the vigil
lance of another to detect wrongs against which
l they assure the employer.
= In my opinion the bank acted in this matter as
promptly as could be required, certainly as
promptly as prudence and regard for personal
rights required. 1t is nv opinion, therefore,
: that the release Of Potthof did not change the
liabiI Of fha nth md gar a.