Field v. Rogers , 26 La. Ann. 574 ( 1874 )

Wyly, J.

John L. Williams was convicted of embezzling four thousand dollars from the plaintiff, Jesse R. Ponder. His attorney, A. P. Field, obtained a new trial and an order for his release on a.bond for $2500. On the sixth May, 1867, he was released on bond, the defendant, Wilbam N. Rogers, going security. In order to get Rogers as security on the bond, Mrs. Williams, the wife of the accused, deposited with him as collateral security $2500 cash. Shortly after his release,. Williams left the State, with a view not to appear at the trial and answer to the charge against him. His wife, who remained a few days-after he left, was anxious to get the prosecution settled or compromised, Ponder having employed counsel to assist in the prosecution. In order to accomplish the object she was willing to give up the $2500 deposited by her with Rogers, agreeing that whatever remained after settling with Ponder, A. P. Field might retain for his services. She therefore made the following conditional assignment of her funds in the hands of Rogers:

“ New Orleans, May 14, 1867.

"Mr. W. N. Rogers, Gravier street:

“ Sir — Upon your release from the bond in the district court, given there by you for the appearance of my husband to stand his trial, you will pay over to Col. A. P. Field tue twenty-five hundred dollars given you by me as collateral security should he fail to appear when called on, and thisyvill be your receipt for the same.

“ MRS. C. WILLIAMS.”

Rogers was promptly notified of this assignment. Field subsequently effected a compromise with Ponder, agreeing to pay him out of said fund fifteen hundred dollars, and the prosecution was discontinued by the State. Rogers, however, refused to pay over the money, and on August 22, 1867, Field and Ponder brought this suit against him and also Williams and wife. Rogers alone was cited, and for answer pleaded the general issue. Williams and his wife having left the State could not be cited. They are, therefore, not before the court. There was judgment in the court below dismissing their demand as of non-suit, and the plaintiffs have appealed.

From the evidence we are satisfied that Rogers had the twenty-five hundred dollars belonging to Mrs. Williams on deposit at the time he was notified of the conditional assignment of May 14, 1867; and from that moment the funds belonged to the plaintiffs, subject to the condition expressed in said assignment. Edwards v. Daley, 14 An. 384 ; Marshall v. Morehouse, 14 An. 690; Ayles v. Hawley, 9 An. 362. Therefore on the eleventh July, 1867, when the prosecution against Williams was discontinued, by reason of the compromise with Ponder, Rogers should have delivered the twenty-five hundred dollars to the plaintiffs because the condition, mentioned in the assignment, had happened, he was released from the bond by the discontinuance of the suit.

If Rogers parted with any portion of the funds deposited with him, after notice of the assignment, he did so at his peril. Whether the compromise with Ponder was the compounding of a felony or not, does not concern the defendant, Rogers, who is a.mere stakeholder or depositary. -Besides, the plea of immorality and other special defenses set up in the brief can not be noticed, the general denial being the only defense he saw fit to plead. Rogers could not, in his pleadings, set up defenses which belong to Williams and his wife; and for a greater reason he can not be heard suggesting them in his behalf.

It is therefore ordered that the judgment herein be annulled, and it is now ordered that the plaintiffs recover of the defendant, William N. Rogers, twenty-five hundred dollars, with five per cent, interest thereon from August 24, 1867, and costs of both courts.