Forsyth v. Martin

The judgment of the court was pronounced by Eustis, C. J, The plaintiff, who resides in Kentucky, alleges that he forwarded for collection to Lonsdale 4 Co. of New Orleans, two certain drafts, for $1,000 each, drawn at Louisville, on Martin 4* Co., a commercial firm of New Orleans, payable ten days after sight; that the drafts were left at the counting-house of the said Martin 4' Co. for their acceptance, and that they fraudulently and illegally retained the same and refused to give them np. He prays for a writ of sequestration, and that they have judgment for the drafts, and.for general relief. The defense is, that Lonsdale 4* Co., who were the debtors of the defendants, were the owners of the drafts sued for; that they were specially endorsed to their order by said plaintiff; that said Lonsdale 4' Co. presented said .drafts for acceptance, whereupon, the defendants, the drawees, being willing to accept and pay the same, did immediately accept the same, and, waiving the delay or time, gave to said Lonsdale Sf Co. credit upon the said demands due by them as aforosaid ; by means whereof said bills were extinguished by • compensation. A supplemental petition was afterwards died, by which judgment was asked against the defendants for the amount of the drafts, interest and costs. There was judgment for the plaintiff, and the defendants have appealed. It appears that these drafts were left for acceptance at Martin Sf Co’s couuting house, and their retention of the drafts to meet the debt due by Lonsdale 4" Co. is attempted to be justified. The law on this subject is stated to be, in works of authority, that, in every case of a presentment for acceptance, the drawee }s entitled, if he require it, to have twenty-four hours to consider whether he will accept the bill or not; and it is u.sual, in such cases, for the holder to leave the bill with him during that period- If there is any trust which above all others ought to be held sacred by men of business, it is this. The drawee retaining the bill, for the purpose of determining on its acceptance, holds it on deposit, the violation of which the law .considers as a species of theft. Our insolvent laws deprive the debtor in actual custody of their relief, who shall have disposed of funds entrusted to him under the title of deposit. I Moreau’s Dig. p. 547. Pothier, Traite de Dépdt, § 43. The Code, art. 2207, which allows compensation, whatever may be the causes of the debts, expressly excludes its operation on a demand of restitution of a deposit. It is clear, then, that if the bills did belong to Lonsdale 4‘ Co., Markin 8f Co, had not the semSjance of right .lo retain them. [517] But, it is said that the plaintiff cannotjteegver, because he is not the owner of the drafts. ■ On the attempt of Martin, Sf C.o. to retain the drafts, Lonsdale Sf Co. refused to hold the drafts on their own account, and, as the agents of the plaintiff, brought the present action, which we think they had a clear right to do, under the circumstances. The prosecution of this suit on th.e part of the plaintiff is a ratification of this act, the authority of the attorney on record not having been drawn in question. True it is that the drafts are endorsed to the order of Lonsdale ¿y Co. by the plaintiff, and have not been re-endorked to him 'by Lonsdale Sf Co., and for a very excellent reason, that the defendants kept the drafts themselves, and prevented the parties from putting the instruments in proper legal form for the recovery of the debt by the plaintiff. We can never permit a party to take advantage of his own wrong, nor put his adversary in a worse position by a gross dereliction of duty. Nemo ex suo delicto meliorem suam conditionem facere potest, ff. 50, 17, 134,1. The payment to the plaintiff of the amount of these drafts, will be a good and valid discharge to th.e .defendants; which is all they can require in this ease, Judgment affirmed.