New Orleans National Bank v. Wells.

HOWELL, J. The New Orleans National Bank, organized under the laws of the United States, and acting, as alleged, through its president and directors, sues the defendants in solida as principal and sureties for twenty thousand dollars, and the principal for $6,007.70 additional, as the defalcation of said principal on the following bond:

Know all men by these presents that we, John S. Wells, Thomas Henderson and James H. Mehaffey, all residing in New Orleans, in this State of Louisiana, are jointly and severally bound to the president and directors of the New Orleans National Bank in the sum of twenty thousand dollars, to be paid to the said president and directors, for which payment well and truly to be made we and each of us hereby bind ourselves, our executors and administrators firmly by these presents; dated in New Orleans on the 20th day of February, in the year 1871. Whereas, the abovebounden John S. Wells has been appointed paying teller, to continue in office during the will of the present or any future board of directors of said bank, now the condition of the above obligation is such that if the said John S. Wells shall well, truly and faithfully do and perform all and singular the duties of said office of paying teller, and shall well and truly perform any and all other duties which may be assigned him as one of the clerks of said bank, and shall render a faithful account of the moneys and effects committed to his charge or under his control, and generally shall save the said president and directors of the New Orleans National Bank harmless from or on account of any negligence or misconduct of him, the said John S. Wells, then this obligation to be void, or else to remain in full force and virtue.

To this action the defendants filed the following exception: "Now into court come the defendants, and for peremptory exception founded in law, plead that the petition discloses no cause of action against the exceptors; that the bond sued on is not given in favor of the party plaintiff in this cause, and, therefore, she

New Orleans National Bank v. Wells.

cannot stand in judgment, as will be more fully shown by authority on the trial of this exception. Wherefore, your exceptors pray this their exception in law be sustained, and the suit be dismissed with costs, and for general relief, etc."

The exception was maintained and plaintiff appealed.

As we understand the position of the defendants, they insist that the bond was not given to the bank, because by its terms it is in favor of the president and directors, to protect them, and not the bank, against the misconduct and unfaithfulness of the paying teller. This we think erroneous. The language of the bond makes it very clear to us that the paying teller was employed for and in behalf of the corporation, and not the president and directors as individuals distinct from the corporation, and the bond was taken as a guaranty of his fidelity to the institution. He was to have charge of and account for the money and effects of the bank, as paying teller, and perform such other duties as might be assigned to him as one of the clerks of the bank, not the money and effects of the then or any future president and directors, or discharge duties personal to them. These officers in taking the bond were acting for the bank and as the bank, and were exercising the powers conferred by the act of Congress.

"From the circumstance that a corporation is an intellectual being, it follows that they cannot personally transact all they have a right legally to do, as has been above observed; wherefore, it becomes necessary for every corporation to appoint some of their members to whom they may intrust the direction and care of their affairs, under the name of mayors, presidents, syndics, directors, or others, according to the statutes and qualities of such corporation." R. C. C., art. 438.

"These attorneys or officers, by contracting, bind the corporations to which they belong in such things as do not exceed the limits of the administration which is intrusted to them; their act is supposed to be the act of the corporation." Art. 439, second clause.

The expression, therefore, in the bond, "shall save the said president and directors of the New Orleans National Bank harmless from or on account of any negligence or misconduct of him the Baid John S. Wells," could apply only to their official capacity, acting for and representing the bank, and was necessarily intended. to be and was in law a bond or obligation in favor of the bank. To

State of Louisiana v. Holmes.

have taken it in favor of themselves individually would have been bad faith and without legal effect under the circumstances. The matter is so plain to us that we cannot see how it can be considered that the contracting parties intended to make an obligation in favor of any other than the bank, a corporation acting through its proper officers, and for its interest.

It is, therefore, ordered that the judgment appealed from be reversed, the exeeptions overruled, and the cause remanded to be proceeded in according to law, costs of appeal to be paid by appellees.

Judgment reversed.

STATE OF LOUISIANA V. HOLMES.

(28 La. Ann. 765.)

License - retail merchant - druggist.

Where a license is required to carry on the business of a druggist, one cannot sell drugs and medicines under a license as a retail merchant. (See note, p. 113.)

THE opinion states the facts.

M. J. Cunningham, district attorney, for plaintiff and appellee.

Wm. M. Levy and C. F. Dranguet, for defendant and appellant

TALIAFERRO, J. The district attorney of the seventeenth jud cial district, acting upon a written notice furnished him by the tax collector for the parish of Natchitoches, dated September 27, 1875, brought this suit against the defendant, alleging that, during the year 1875, the defendant was doing the business of a druggist in the city of Natchitoches without a license from the State, and that he is liable for the druggist's license of fifty dollars and the penalties prescribed by law for failure to pay the license. He prayed that an injunction issue restraining the defendant, Holmes, from selling drugs and medicines in the city and parish of Natchitoches, and from prosecuting the business of a druggist until he

State of Louisiana v. Holmes.

pays for and takes out the license therefor of fifty dollars, as prescribed by the revenue laws of the State, and for citation and judgment against the defendant for fifty dollars as a druggist's license for the year 1875, and the penalties prescribed by law for having been engaged in the business of a druggist during the year 1875 without such license and for costs of suit. An injunction was issued as prayed for, but was dissolved on bond. The defendant answered, denying that he has been doing the business of a druggist during the year 1875 and liable to pay the license required by law from persons engaged in the business of druggists. He avers that in the sale of certain articles, which are also sold by druggists, he did not compound drugs or medicines, or administer them, or connsel or advise their use as medicines; that they are articles generally used and sold by all country merchants, and not especially for medicinal use, or by the advice of physicians, and that under his merchant's license he had the right to sell the articles claimed to be drugs. He prays to be dismissed with his costs. Judgment was rendered against the defendant for fifty dollars for having been engaged during the year 1875 in the business of a druggist without a license, and for the penalties incurred by him in so doing. The injunction restraining him from pursuing the business of a druggist without license was perpetuated. A motion for a new trial was overruled, and the defendant appealed.

It was admitted that the defendant had been during the year 1875 selling without license the following medicines in unbroken packages as he receives them from the wholesale dealers in New Orleans: Quinine in one ounce, half-ounce, and quarter-ounce bottles; patent pills of all kinds; patent bitters of all kinds; castor oil, laudanum, paregoric, peppermint, spirits of nitre. Further admitted, that defendant breaks the packages received by him and retails by the ounce or otherwise as desired by customers the following medicines: Calomel, blue-mass, epsom salts, borax, gum camphor, and powdered sulphur. Admitted further, that defendant does not compound medicines or fill physicians' prescriptions, and that the medicines specified are generally sold by country merchants.

The defense in this case is placed mainly on the argument ab inconvenienti, and upon general custom. It is argued that in districts at a remote distance from towns and cities the practice of medicine would be of no beneficial use, unless country stores, under

State of Louisiana v. Holmes.

their merchant's license, were permitted to sell such medicines as the defendant in this case sold, and which are looked upon by the whole civilized world as staple commodities; that the practice of selling medicines in this way by country merchants is universal throughout the land; that this practice has grown into a custom from a long series of actions constantly repeated, and has acquired the force of a tacit consent. It is contended that under the fifteendollar license required from each wholesale or wholesale and retail merchant, and every retail merchant, according to act No. 14 of March 5, 1872, second division of section one, the defendant is entitled to sell medicines as it is admitted they are sold by him; that medicines thus sold by a retail merchant form part of the goods he is permitted under his license to sell, and that he cannot on that account be reckoned in the category of druggists and be required to pay the druggist's license of fifty dollars.

It is not our province to consider the policy of the usage or custom referred to, yet we may be allowed to doubt whether this universal vending of medicines by persons for the most part ignorant and incompetent in such matters is not productive of as much evil as good to the community at large. A brief and clear definition of the term "druggist," by a standard lexicographer, Dr. Webster, is that "druggist properly means one whose occupation is to buy and sell drugs without compounding or preparation." The term therefore has a much more limited and restricted meaning than the word "apothecary," and we find little difficulty in concluding that the term "druggist" may be applied in a technical sense to persons who buy and sell drugs. A man may be a druggist in the sense of being a purchaser and vender of medicines, whether he have a license as a druggist or not, although he cannot legally deal in drugs (buying and selling) without a license. It was because the defendant pursued the business of buying and selling drugs during the year 1875 without procuring the license required by law; that is, by procuring a proper diploma and paying fifty dollars for it. Act No. 14, acts of 1872, seventeenth division of section one.

The reasoning of the district attorney on the subject, we think, has much force, and we are inclined to adopt it. He says: "Defendant claimed the right to sell these medicines under his license as a retail merchant. It is true that merchant means a dealer in merchandise, which general term has a very extended meaning, covering all articles of commerce, including medicines; yet it will not be denied