MERCANTILE LAW CASES.

ENDORSING NOTES.

Persons, not parties to a note, who put their names upon it as endorsers, are presumed to have done so as sureties, and are liable in solido, unless they demand a division. The exception of division ia peremptory one, which must be specially pleaded; it cannot be supplied by the Court. When the exception is pleaded by one surety, it is competent for the plaintiff to prove the insolvency of the other surety.

In the Supreme Court of Louisiana. Robert McCausland vs. Lyons & Smith. Appeal from the late Third Judicial District Court, of the Parish of West Feliciana, SLIDELL, J. Per Curiam; Lyons & Smith are sued upon a note of the following tenor:

"On the first of April, 1843, we, or either of us, promise to pay to Robert McCausland, or order, the sum of $2,200, payable and negotiable at the Louisiana State Bank at St. Francisville, bearing ten per cent per annum from maturity until paid, it being for value received this first day of April, 1842. (Signed) P. B. MCKELVEY."

On the back of this note are the signatures of the defendants, "H. A. Lyons" and "Ira Smith."

The petitioner, who is the payee of this note, alleges that Lyons & Smith signed before the delivery of the note to him, and thus incurred the liability of sureties in solido. Lyons & Smith answered, admitting their signatures only, and pleading the general issue. The Court below gave judgment in favor of the plaintiff against the defendants each for his virile share, and from this judgment the plaintiff has appealed, and asks that the judgment be amended so as to condemn the defendants in solido.

Our first inquiry is, Under what class of contracts does the obligation contracted by Smith & Lyons fall? This is answered by several decisions of our predecessors and of this Court, which must be considered as settling the point in this State. By this irregular endorsement, Lyons & Smith bound themselves as sureties. (See Smith vs. Gorton, 10 L. R. 376; Laurence & Hill vs. Oakey, 14 L. R. 389; McGuire vs. Bosworth, 1 Annual, 248.) Such being the character of the contract, our next inquiry is, Are these sureties liable each for the whole debt, or is the liability merely joint?

By the article 2088 of our Civil Code, (which is taken literally from the article 1202 of the Napoleon Code,) it is declared that "an obligation in solido is not presumed; it must be expressly stipulated." The rule ceases to prevail only in cases where an obligation in solido takes place by virtue of some provisions of law, "ou la solidarite a lieu de plein droit, en outre d'une disposition de la loi." It is, therefore, necessary to consider the nature of the contract of suretyship, for the purpose of determining whether it falls within the exception contemplated by that article.

The rule of the Roman Law was, that if several persons become sureties for one and the same thing, every one of them is answerable for the whole. Si plures sint fidejussores, quotquot erunt numero singuli, in solidum tenentur. The benefit of division was not ipso jure, but might be demanded by a surety when his co-surety was solvent. Inter fidejussores non ipso jure deviditur obligatio ex epistola Divi Hadriana; et ideo si quis eorum ante exactum a se partem sine he rede decessuil, vel ad inopiam pervenerit, pars ejus ad cetererum onus respicit. Ut autem is qui cum altero fidejussit non solus conveniatur, sed dividatur actio inter eos qui solvenda sunt, ante CONDEMNATIONEM ex ordine postulari solet. text and notes of Domat, Surety, Book iii., tit. iv., sec. 2.)

(See the The French Code followed the Institutes and the Code of Justinian, not, however, without previous opposition on the part of those jurisconsults who desired to extend the rule of the article 1202 to the contract of suretyship, and require an express undertaking to impose a liability in solido. That Code was thus made

to harmonize with the Roman Law and the opinions of Vinnius and Donnean, which were adopted by Pothier. (See the history of the law on this subject, as given by Troplong, Cautionnement, sec. 281 et seq. Pothier, Obl., sec. 416.) The latter considers the principle of solidarity as inherent in, and derivable from, the nature of the contract. Il est de la nature du cautionnement de s'obliger a tout ce que doit le debiteur principal; et par consequent chacun de ceux qui le cautionnement, est cense contracter cet engagement, a moins qu'il ne declare expressement qu'il ne s'oblige que pour partie; c'est la raison qu'en rapporte Vinnius. He then alludes to the exception of division accorded by the Emperor Hadrian, and says it was adopted in the practice of France.

Our Code has adopted this principle; and so far as our present inquiry is involved, has substantially followed the law of Rome and France. After quoting articles 3018 and 3019, C. C., the Court proceeds:-"The contract of suretyship under these provisions of law is of a mixed character. The obligation of each surety is to pay the whole debt, but this solidarity is tempered by the right of division. This right, however, rests in facultate. The surety has the right to demand the division; but until the right is exercised, the obligation is solidary. In the present case there has been no demand of division by the sureties. They were attacked by the plaintiff as debtors in solido, and pleaded the general issue. The exception is a peremptory one, which must be pleaded specially; and this has not been done in the court below, nor even in this court. Dividitur obligatio inter plures fidejussores per exceptionem duntaxat, non ipso jure. It is not an exception which can be supplied by the Court. It is obvious that it presents a mixed question of law and fact. Suppose that Lyons or Smith had pleaded the exception of division; the plaintiff might have met the plea by proving the insolvency of the other surety." (See Troplong, Caut. sec. 297, and the authorities there cited. Merlin, Report., verro Caut. sec. 4, No. 2.)

The judgment below was therefore reversed, and judgment rendered against Henry A. Lyons and Ira Smith in solido for the sum of $2,200, with ten per cent interest from April 4, 1843, and costs in both courts.

DECEPTION IN THE PURCHASE OF MERCHANDISE, AS TO ITS OWNER.

Where A. purchased merchandise in the shop of B., and the former acted in such a way as to deceive the public with regard to the ownership of the property, and to entrap the sheriff who entered the premises to make a levy in virtue of a fi. fa, against B., all the surrounding appearances being deceitful and violently opposed to the naked assertion of the parties that A. was the owner, the selling himself, acting as salesman, his sign remaining on the outside of the shop, the boxes and packages marked with his name in full, or by his initials, the purchaser's name appearing nowhere, and he neglecting to exhibit his bill of sale or mercantile books to the sheriff, who, when sued for the value of the goods and damages for illegally seizing them as the property of B., brings them into Court to abide the decision; held, that the sheriff was properly decreed to restore the goods to A., reserving to him his right to sue the sheriff for whatever damages, if any, the goods may have sustained while in custody.

In the Supreme Court of Louisiana. New Orleans, March 26, 1849. James P. McDonald is. John L. Lewis, Sheriff. No. 606. Appeal from the Third District Court of New Orleans. (His Honor, Chief Justice Eustis, dissented from the opinion of the majority of the judges. His opinion is given infra.) SLIDELL, J., Justices Rost and King concurring. Per Curiam: The Court below was of opinion that the plaintiff had proved a bona fide purchase of the goods from Tillotson. I do not feel entirely convinced upon that point; but I will give the plaintiff the benefit of the District Judge's opinion, and assume that the sale was real and in good faith. But what are the facts, so far as the sheriff is concerned? This sale, it is said, was made on the 16th February, 1847, upon which day the written bill of sale purports to be signed. Tillotson, the vendor, an embarrassed debtor, remains in the shop, acting as salesman, down to the time of the seizure. The sheriff's deputy goes on the 9th April, 1847, to the shop, finds Tillotson there, and demands payment of the amount of the execution. Tillotson tells him he cannot pay. The officer replies, "Then I must seize the goods here." Tillotson answers, "They are not mine." The officer retires, and in a little while returns, and threatens again to seize. At the second visit, McDonald comes into the shop

while the officer is parleying with Tillotson. They both tell him Tillotson has sold the goods to McDonald; but all the surrounding circumstances contradict the naked assertion of the parties. Tillotson's sign is still on the outside of the shop; the boxes and packages are marked with his name either in full or by his initials; McDonald's name appears nowhere. The attorney of the plaintiff in execution insists that the alleged sale is a mere pretense, and that the officer should proceed. The plaintiff not exhibiting his bill of sale, nor his books, and proffering nothing but his naked assertion, the officer seizes the goods and takes them away, and then this action is brought. The plaintiff's title is produced for the first time at the trial of the cause, and then the sheriff brings the goods into court, and says he is ready to deliver them immediately if the Court should so direct.

It seems to me, if we hold the sheriff liable in this case as a trespasser, when he was willing to restore the goods, it would be a great hardship upon the public officer, and would be, in reality, enabling a party to take advantage of his own wrong. The plaintiff, even if he was a real purchaser, acted in such a way as to deceive the public, and this deliberately, and for his own supposed interest. When Tillotson's clerk was obout leaving the shop, shortly after the sale, he asked McDonald whether he was to erase Tillotson's name from over the door. McDonald replied "that he would let it remain-that it would be of some advantage to him." It seems to me such a course of conduct should be discouraged. It holds out the vendor in a false light to the public, and gives him a false credit. In the case before us, it led the public officer into an error, the consequences of which the plaintiff now seeks to impose upon him.

I think the plaintiff was bound in good conscience to give the officer something more than his naked assertion, thus violently opposed by all the surrounding appearances. Why was not the bill of sale shown, and the plaintiff's books, upon which he now relies?

The position of a sheriff is one of great responsibility. If he refuses to make a levy, and the plaintiff in the suit can show that the goods found in the possession of the defendant in execution, were in truth his property, he is entitled to recover his debt pro tanto from the sheriff. And it seems that in an action against the sheriff for a false return of "nullabona," it is sufficient to put the sheriff on his defence, for the plaintiff to show that the defendant in execution was in possession of property sufficient to satisfy the execution. Magne vs. Lyman, 5 Wendell, 311. I do not find any textual provision in our laws authorizing a sheriff to demand a bond of indemnity, and I have doubts whether he has a legal right to do so. If, on the other hand, he is to be held liable as a wrong doer, for taking property which the owner has been surrounded by deceitful appearences which entrap the sheriff, his double responsibility becomes grievous to a degree that appears to me unreasonable. I think very great weight is to be given to what was said in argument by counsel, respecting what is properly characterized by the chief justice as a defect in our jurisprudence. At common law, when the sheriff is met by the assertion of an adverse title, he may impanel a jury to inquire in whom the property is vested, and their return will excuse him in an action of trespass. Bacon's Abridg. verbo sheriff. Bailey vs. Bates, 8 Johnson, 143. With us a sheriff has no such power, and ought not to be held with the same severity, to a party whose conduct was imprudent, and well calculated to deceive the officer.

If this case were tested by the rules and principles of the common law, which has been invoked in argument by the plaintiff's counsel, I incline to the opinion that the sheriff would be permitted to return the goods upon payment of costs and mere nominal damages. I question if the action of trespass would lie in such a case; for, to sustain that action, it seems the taking must be unjustifiable. Hence it is declared, by respectable authority, that if a sheriff take the goods of A. under a writ of fi. fa., after he has committed an act of bankruptcy, and afterwards the goods are assigned under a commission of bankruptcy, an action of trespass does not lie against the officer, although the goods do by relation become the property of the assignees, from the time of committing the act; for, as

the officer might not know that A. had committed an act of bankruptcy, or that an assignment of the goods would be made, and as it was his duty to execute the writ, it would be unreasonable to punish him as a wrong doer. Bacon's Abridg. verbo Trespass. So if A. mix his corn or money with the corn or money of B., so that they cannot be distinguished, and B. takes the whole, trespass does not lie, as there was fault on the part of A.-Ib. And so I should think a party would not be entitled to bring an action of trespass against the sheriff who had left his goods in the possession of the defendant, in execution, in such manner as to give him all the appearances of ownership.

Then, if the taking was not unjustifiable, the plaintiff would be driven to an action of trover; and I find it asserted by the same author, that in some cases in that action, it is allowed to bring the thing into court. "But herein," he remarks, "this distinction is to be observed; if trover is brought for a specific chattel of an unascertained quantity and quality, and unattended with any circumstances that may enhance the damages beyond the real value, but that its real and ascertained value must be the sole measure of damages, then the specific thing demanded may be brought into court. But where there is an uncertainty, either as to the quality or quantity of the thing demanded, or there is any tort accompanying it, that may enhance the damage above the real value of the thing, and there is no rule whereby to estimate the additional value, there it shall not be brought into court." So in Browne on Actions, it is said, "If the defendant return the goods, the plaintiff will only recover such damages as he has actually sustained; but he is, at all events, entitled to nominal damages, as the return of the goods does not cure the conversion, but merely goes in mitigation of damages; and if there be a dispute as to the quantity of the goods converted, and the plaintiff refuses to receive back the portion offered, the court will, upon application for that purpose, stay the proceedings on delivery of such portion of the goods, and payment of costs and damages; and if the plaintiff refuse to accept such terms, will permit the defendant to deliver up the goods, the plaintiff to pay the costs incurred subsequently to such delivery, in the event of his not recovering in respect of some other articles than those delivered up, or more than nominal damages in respect of those delivered up."-Browne on Actions; Trover, p. 425.

The power of our courts cannot be less than that of those of common law to mould the remedy to the justice of the case.

To these remarks I may add, that I am not prepared to say that there was such a legal change of possession as would perfect the sale against creditors, even supposing the sale to be real and bona fide. See Hoffman vs. Clarke, 5 Wheaton, 549.

In that case, which was trespass against a constable, for taking a horse alleged to belong to the plaintiff, by virtue of an execution against A., the plaintiff's brother, it appeared in evidence that the horse had belonged to A., who testified that he had sold him to the plaintiff before the execution, for a full price. Another witness, produced by the plaintiff, testified that the plaintiff and A. lived together, and that after the sale, the plaintiff kept the horse in the same stable in which A. had kept him. The court there said, the law, in order to make sales of personal property good against creditors, and to prevent them being deceived by appearances, requires that there shall be an actual transfer of the possession, so far as the nature and condition of the property will admit of it. The circumstance of the seller and buyer of the horse boarding together in the same house, furnishes no ground for dispensing with such actual change of the possession as will render it distinct and visible, so that it may become notorious. It was surely practicable for the plaintiff to have taken possession of the horse, by placing him in a different stable, and either feeding and taking care of him himself, or to have procured some third person to have done so. So here the plaintiff might have changed the sign, &c.

ROST, justice, and KING, justice, being also of opinion that the judgment should stand, it is therefore decreed that the judgment of the District Court be affirmed, and the costs of appeal be paid by the appellant. [The decree of the lower Court was, "That the plaintiff, James P. McDonald, recover from the defendant, John

L. Lewis, sheriff, the goods described in the bill annexed to the plaintiff's petition, reserving to said plaintiff his right to sue the said Lewis for whatever damages (if any) the said goods may have sustained from a want of proper care and attention, whilst in the possession of said Lewis. It is further ordered that defendant pay the costs of suit."] Elmore & King for plaintiff and appellant; John R. Grymes for defendant and appellee.

COMMERCIAL CHRONICLE AND REVIEW.

THE EASY STATE OF THE MONEY MARKET-QUOTATIONS OF AMERICAN STOCKS IN LONDON-EXPORTS OF THE PORT OF NEW YORK IN 1848-9-INFLUENCE OF THE FIRE AT ST. LOUIS AND THE CREVASSE AT NEW ORLEANS ON THE MONEY MARKET-PAPER MONEY THE MEANS OF TAXATION FOR WAR EXPENSES -CAUSE OF HUNGARY SUPPORTED WITH PAPER MONEY-CONDITION OF THE BANKS OF NEW ORLEANS -OPERATIONS OF EXCHANGE-CONDITION OF THE BANKS OF OHIO FROM 1835 TO 1849-COMPARATIVE CIRCULATION OF OHIO AND NEW ORLEANS BANKS-OHIO STOCKS IN LONDON AT PAR, ETC., ETC.

SINCE the date of our last number, money has become very abundant; so much so, that it has found lenders "at call," on good security, at 4 per cent per annum. The specie in the vaults of the Atlantic banks has increased to an important amount, while the receipts from California have, in some degree increased, reaching $310,000 at the mint. The exports of the country, both produce and stocks, have been large, and exchanges indicate a continued balance in favor of the city, both from interior and abroad. The state of Europe has been such, in its political aspect, as to impel capital towards those countries in which it is most secure, and the demand for United States stocks, as well as for those of the individual States, in those markets in which, a few years since, they were regarded with derision, is evidence at once of their improved character, and of shaken confidence in the debts of those governments then considered safe. In a former number, we compiled the quotation of stocks in the London market, according to the circulars of an eminent house. We have brought down those prices, in order to show the progressive advance:

QUOTATIONS OF AMERICAN STOCKS IN LONDON-BARING'S QUOTATIONS.

United States New York Pennsylvania Ohio
6's, 1868.

5's, 1860.

February.

5's.
63 a 65

Massachusetts Louisiana 6's, 1860. 5's, sterling. 5's, 1850.

.....

This is an important rise in government stocks. The improvement, from the close of January to the close of May, was 5 a 6 per cent, with an accumulation