William A. Bartlett v. The New Orleans Canal and Banking Company, 1 Rob. 543

Bullard, J. This is an action against the New Orleans Canal and Banking Company, to recover the amount of certain hank notes, together with twelve per cent interest thereon, since the general suspension of specie payments, in October, 1839. The notes in question were presented for payment by a notary public, on the 1st of February, 1842, .who demanded the principal together with the interest, as above stated, which was refused as to the interest, but the principal was tendered in legal coin, and refused.

There was judgment for the plaintiff for the principal sum, but without any interest or costs, and he has appealed.

The clause of the charter, under which the plaintiff claims the interest, declares: ‘That the said company shall not at any time suspend or refuse payment in current money of the United States of any of its notes, hills, or obligations, or of any money upon deposit; and if the said company shall at any time suspend or refuse payment as aforesaid, the holder of any such note, bill, or obligation, or the person or persons entitled to demand and receive such moneys as aforesaid, shall he entitled to receive interest thereon, from the time of such suspension or refusal, until the same shall he fully paid, at the rate of twelve per centum per annum.’ Act of 5th March, 1831, sec. 20.

It is admitted that the bank suspended specie payments on the 19th of October, 1839. We must regard every note issued by the hank, as'a distinct promise to pay a given sum on demand ; and the charter supplies the penally, so far as it relates to the hill holder, in case of contravention by postponing, or suspending, or refusing to pay in specie, to wit, an interest at the rate of twelve per cent.

If the whole were written on the face of the note, as it exists in contemplation of law, it would appear quite manifest, that the penalty, or damages, or interest could not he recovered without a demand, and failure to pay on the part of the hank, and that only from the putting in default. Such is the general rule, and the words of the charter do not make this an exception. It is only on demand and refusal, that the hank is put in default, as it relates to particular notes.

But it is contended on the part of the plaintiff, that the hank, by a general suspension of specie payments, committed an active violation of its contract, and was in default ipso facto ; and he relies on

article 1928 of the Code. The

article preceding, defines what is an active violation of a contract. It consists in doing something inconsistent with the contract; and a passive violation consists, in not doing what was covenanted to he done. The

article relied on then provides, that when there is an active violation of the contract, damages are due from the act of contravention, and the debtor need not be put in default; and the succeeding

article declares, that when the breach has been passive only, damages are due from the time the debtor has been put in default. According to these

definitions, it would seem that the non-performance of what was covenanted, that is, not paying in specie, was merely a passive violation of the contract, unless a general notice, beforehand, of the intention of the hank not to pay, is to he considered as an active violation. If the neglect, or refusal to pay in specie, be only a passive violation, it is difficult to understand, how the mere announcement of an intention on the part of the hank not to pay, can he regarded as an active violation.

It does not appear, hut that these very notes would have been paid, if sooner demanded, as was offered to he done, when they were presented by the notary in the present case. There is another reason, why the plaintiff should not recover hack interest. It does not appear, that he was the owner of the notes, at the time that specie payments were suspended. They may have belonged, at that time, to persons who did not choose to enforce the penalty, or they may have been issued by the hank itself on the very day they were presented for payment by the notary.

Such a construction would make the accessary independent of the principal, and authorize the recovery of interest by a person, who does not show himself entitled to the capital. We cannot suppose that the legislature intended to burden the whole circulation and deposits of a hank with an interest of twelve per cent, whether demanded or not. On the contrary, we think, it depends upon the will of the bill holders and depositors, to exact the penalty, or not, and that their intention to do so, must be evidenced by a demand; and that the interest will run only from such demand and refusal. Judgment affirmed,