Same Case — On an Application for a Re-hearing.

The defendant’s counsel have presented a peti*177tion for a re-hearing at the same time that they are pleased to imagine that such applications are listened to by us with reluctance. In this they are certainly mistaken; for we always pay the most respectful attention to such applications, believing them tobe dictated by a sense of professional duty on the part of counsel, although sometimes indicating an excessive professional zeal, and making too little allowance for an honest difference of opinion.

One ground for asking this re-hearing is, that the court entirely overlooked a plea, on the part of the defendant, that proper parties had not been made, and that Black, the maker of the new note, ought to have been made defendant. It is true this was not noticed, because no reason was given why he should have been cited by the bank as defendant. Such a proceeding would have been absurd in the plaintiffs, who had refused to recognize him as their debtor, and who had no judgment to ask against him. His note was brought into court to be given up to the defendant, Kernan. Perhaps the defendant would have been'authorized to cite Black in the case, as his personal warrantor'; but between the plaintiffs and him there was no priority of contract, and the defendant did not ask to have him made a party.

Upon the merits, it appears to us that the doctrines of agency as it relates to cashiers of banks, as laid down in Story on Agency, page 103, are applicable ; and that the release of a debtor in an act of ownership, which a cashier is not authorized to perform under his general administrative powers. The acquiescence of the board in other transactions of the kind would prove nothing, unless it were shown that in those cases, as in this, the transferee of the stock and maker of the new note, was notoriously insolvent. If in the other instances the new obligor was solvent, no inference can be drawn from the assent of the directors being given tacitly, or their acquiesence in the act of the cashier.

Re-hearing refused.

The plaintiffs, as Commissioners for liquidating the affairs of the Clinton and Port Hudson Rail Road Company, allege that the defendant is indebted to that institution in the amount of his note for $3200, with interest, payable to their cashier. That the defendant, after the note had become the property of the bank, induced the cashier to take the note of one Charles Black, who was notoriously insolvent, for the same amount of money, in lieu of his own note, and thereby got pos*175session of his own note, under the pretext of selling and transferring to said Black fifty shares of the cash stock of said institution, which were pledged for the payment of said note, but which, at the time of the transfer, had become worthless. They allege that said transaction was unauthorized by the Company, and not warranted by the charter, and was a fraud upon the Company. They annex to their petition the note of said Black, to be returned to the defendant Kernan. They pray for judgment for the amount of the note first given, with interest and costs.

The defendant first answered by a general denial, and then pleaded, as a peremptory exception, that proper parties had not been made, and prescription.

The facts alleged in the petition are substantially proved. The note sued on was given and secured by a pledge of stock. The note of Black was taken in lieu of it, on a transfer of the stock to him, and the defendant released by the cashier alone, without the express consent of the Board of Directors. There was, therefore, a novation, if the cashier was competent to give the consent of the corporation to the contract by which one debtor was released and another accepted in his place.

It is clear that neither the charter nor the by-laws confer such authority on the cashier; and it only remains to enquire, whether its exercise has been sanctioned by usage and the acquiescence of the Directors.

Some of the witnesses testify that similar transactions had been made by the cashier without the authority of the Directors, but with their knowledge. The cashier at that time testifies, that he notified both parties that the Board disapproved the transaction; and a copy of a resolution of the Board to that effect is in the record. It is shown further, that Black voted as a stockholder after the transfer to him of the stock by Kernan.

The evidence is far from satisfying us that the cashier had any authority to bind the corporation, by a release of a debt due to the bank, either derived from the charter or sanctioned by usage. His powers are administrative only. A mere transfer of stock so as to entitle the transferree to vote at a meeting of the stockholders, does not require the consent of the corpo*176ration; but that is a very different thing from the release of the obligation of the original stockholder to pay his note secured by a pledge of the same stock. The plea of prescription is not sustained.

We conclude that the court erred in giving judgment for the defendant.

The plaintiffs claim interest at the rate of ten per cent per annum. Their right to recover any rate of legal interest above five per cent, in the absence of any stipulation, depends upon the charter of the bank. The 8th section of the act of 1834, entitled An act to amend the act incorporating the Clinton and Port Hudson Rail Road Company, (See acts of that year, page 114,) declares that they shall not receive more than eight per cent per annum on any loan or discount. It is true the 17th section of the same act provides, that the mortgages for stock and loans granted by this act shall bear ten per cent after maturity, until paid. But we understand the last provision to apply to subscriptions for that part of the stock to be secured by mortgage. We conclude that eight per cent is the rate of legal interest, arising ex mora, on a note given for money loaned, this being a loan upon a pledge of cash stock. 2 La. 61.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed; and it is further adjudged and decreed that the plaintiffs recover of the defendant, John Kernan, the sum of $3200, with interest at eight per cent from the maturity of the note, and the costs in both courts.