
    
      MUSSON vs. BANK U. S.
    
    Appeax, from the court of the first district.
    a power to check u .person-
    of goods sold on commission, placed ⅛ bank to hi-Townac-count, cannot be viewed as a deposit belonging to the owner of the goods.
    But if the vendor, on his death bed, declares that the money belong to the owner, and orders a blank check to be given him for it, this will be such evidence of the property in the owner of the goods that he may maintain an action for it.
    Germain Musson, testamentary executor of James Johnson, an inhabitant of Pittsburgh, instituted the present suit against the bank of the United States, to obtain the surrender cf certain monies there deposited by James Smith, deceas-1 J ed, which funds, he alledged, to be the property of his testator. Maunsel White, curator to the estate of James Smuh, intervened and claimed those monies as belonging to the estate which he administers ; and pending the contest between these parties, Samuel Smith, calling himself the testamentary executor of both James Smith and James Johnson, came into court and demanded that the money in dispute be delivered to him.
    The district court gave judgment, in favour of the plaintiff, Musson, for the money deposited and a sealed packet—White, one of the intervening parties, alone appealed.
    The facts, as they relate to the appellant and Musson the appellee, were these :
    Johnson, who had come to New Orleans with a quantity of flour, being obliged to go to Natchez on some business, left seven hundred barrels of it in the care of James Smith, his uncle, with instructions to sell them. Smith sold them» Johnson returned to New-Orleans not Ions: after- ° Both Smith and Johnson died here within a few days of one another, without settling accounts.—*Smith, who died first, being on his death bed, declared to Michael de Armas, notary public, that although he had already made a last will, he wished to make another, “ on account of some money which he had, belonging to his nephew Johnson, and which he had deposited in the United States bank, under his own named’ On being advised that a check on the bank would be sufficient, he desired the notary to write and siga one for him, leaving the sum in blank, “ as he could not recollect the amount he had in bank, belonging to his nephew. ” The check was drawn and delivered to Johnson, who was then sick himself and died shortly after, without ever filling the blank. Germain Musson, having filled it, called at the bank for the money and was refused.
    Porter, for the plaintiff'.
    The plaintiff contends that, as executor of Johnson he is entitled to the money and the packet, by virtue of the check drawn by Smith, because the money deposited,, and that in the packet were the proceeds of Johnson’s property sold by Smith as his agent.
    White has no claim thereto, for at the time of the trial of this action in the district court, he was not the legal curator , of Smith, nor I;a§ ht ever been since. His functions had lone; before ° ceased, more than a year and a day having elapsed since his appointment
    It is admitted, that the check was good in Johnson’s hand«, and that if he had filled up the blank, the plaintiff, his executor, would have been entitled to recover ; but it is contended, that he did not transmit to his executor the power of filling it up, that the power expired with hint.
    The power and right to receive the money did not expire wi h Johnson, for it was a vested right and, therefore, passed to his executor.
    In general, powers are revocable either by the act of the party, or the operation of the law; but there are exceptions to this principle. A mere naked power of attorney is revocable, but a power coupled with an interest is irrevocable. 2 Esp. Rep. 564, 1 Caine's cases, 15, Judge Kent's opinion j 1 Caine's Rep. 379 To the examples put in these cases, may, with propriety', be added those bills of exchange, checks and orders ; these are evidences of powers coupled with an interest, which the death of either drawer or drawee does not revoke.
    The money claimed abundantly appears from the record to be the proceeds of a quantity of flour sold by Smith for Johnson’s account : the plaintiff is, therefore, entitled to recover it f. u vermore on agency. 275—285. bee particularly lord Ellenborough’s opinion, 284.
    
      Last!}'-, White is not now the legal representa* tive of Smith’s estate, his functions of curator living ceased, at the expiration of one year and one day after his appointment. Civ. Code, 180, art. 142—144.
    Moreau, for the intervening party appellant.
    The check did not transfer any property. It is not intended to be denied, that a paper signed in blank, after it has been filled up, binds the subscriber, provided it was filled by the person to whom it was given, or by his directions, while he lives. The party is bound, because the delivery of the paper implies a power given to the person who receives it, to fill it up in the manner agreed upon.
    A blanc seing (a blank paper signed) is a paper subscribed at bottom, by him who intends to bind himself, or give a discharge or release, according to the discretion of him to whom lie delivers it, giving him power to Jill it up as he sees fit, according to their agreement. 1 Fer-riere, 215.
    According to this definition, a power, given by he who signs, to him to whom the paper is delivered, is always implied: and all powers from their nature, are personal and end with the life of either of the parties; at least, with that of him to whom the power is given. Johnson did not then transí mit to his executor the power which he received from Smith.
    A distinction is attempted to be made in the present case, on the ground that the power was coupled roith an interest. We must not confound what creates, with what extinguishes a debt. If I acknowledge to owe a sum of money, I certainly give to my creditor the right of claiming it; a right which he will transmit to his representative, at his death. But if I send him a power of attorney, in order that he may convey or cause to be conveyed to himself, a tract of land, which I designate or which he may select among those I own, in payment of what I owe him, will it be contended that, on his dying, without the conveyance having been made, the power will pass to his representative? Certainly not.—For the power was personal and expired with him.
    Further there is not, in the present case, any acknowledgement of a debt. Smith did not acknowledge that he owed any particular sum, nor did Johnson declare that any such was due him. Neither did he say, that all the money deposited in bank belonged to Johnson. The check did not give any priviledge to Johnson’s estate over any of the creditors of Smith.
    A right of revendication is claimed on the pre-tence, that the money deposited never ceased to belong- to Johnson. The money is assimilated b J to a deposit made by Johnson in Smith’s hands.
    js¡0 evidence of a deposit can be discovered on the record, Johnson gave Smith a quantity of flour to sell for him The latter sells it, and places the money in bank or elsewhere: nothing appears ' f a request from Johnson, that the proceeds of the flour should be deposited in bank for him. This transaction does not, in any manner, differ from ordinary consignments.
    The Spanish law recognizes two kinds of deposit, the regular and irregular. The regular is that of one or more of those things which are not counted, measured or weighed, except money, when it is put in a purse, bag or box, seal cd or locked, and delivered to the depositary, not to be used by him, but to keep it, under an obligation to íeturn the thing itself, not another like it, and if it be money, the very same pieces, and not others of the same weight, fineness or value, Jebrero, Juicios, 2, 3, 3, $ 2, n. 200. This author adds in the same paragraph, that in case of an union of creditors, concurso, and of a regular deposit, the depositor preserves the right of claiming the thing; because in such a case, neither the property nor the use of the thing are transferred to the depositary; both remain in the person of the depo-itor, who may claim it either by the action de deposito or that de revendicatione which are anterior to all.
    
      The irregular deposit is that which is done of pieces or things, which are commonly counted, measured or weighed, as wheat, wine, oil, which are not delivered to the depositary, wrapped up or sealed, or with other marks, establishing their identity, because the depositary is not forbidden to use them, provided he restore them or others equal in goodness, quantity and species, in weight, measure or number ; for the depositor, in such a case does not retain the property or dominion, which passes to the depositary. Id. n, 201.
    It is true, Febrero grants a priviledge to him, who has made an irregular deposit over the chirographary creditors of the depositary; but in order that this may take place, the agreement to deposit must appear by an authentic act. Id. n. 198.
    The ordinance of Bilbao allows only the right of revindication to the owner of goods delivered to be sold on commission to a merchant who fails, in certain cases, where the whole or part of the goods yet remain in bales, and in that state of entirety, which enables the creditor to identify them, and when they are sold on a credit and unpaid. Art. 27 Es? 28, chap. 17. It is no were held that he may claim a preference on the proceeds of the sale, even when found in the insolvent’s possession.
    
      If the depositary uses the things deposited, the contract of deposit ceases to exist, being merged in one of loan When money, or other things which are consumed in the use, is given you in pledge, with a convention that you may use it, if you want it, this convention does not prevent the existence of a contract of deposit, as long as you make no use of the thing : but when the thing deposited will be consumed, by the use which you are permitted to make of it, the contract of mutuum will dissolve that of deposit, which cannot exist when the thing which is the object of it is consumed. Pothier, Depot» v, 11.
    Lastly, although more than one year elapsed, since White’s appointment of curator to Smith’s estate, he retains the right of claiming the funds left by the deceased, in the bank.
    It is true, that the administration of a curator to a vacant estate, or absent heirs, ceases at the expiration of the year which follows their appointment. Civ. Code, 181, art. 144, like that of a testamentary executor. Id. 247, art. 173. But are we to conclude that the time runs against these persons, when by an obstacle beyond their control, as a law suit, or the unlawful withholding of the estate, they are prevented from possessing, and consequently administering it ? Cer-iainly not. This results from the provisions of the law. Curators to vacant estates are, within the year and a day, give an account of their administration to the parish judge. Id. 181, art. 144 The curator must have administered, before he can render any account. The object of the curator’s appointment is the liquidation of the estate, and would be defeated, if by law suits or otherwise, he could be prevented during the year from obtaining the possession of the estate, and he could not administer it, after having overcome these obstacles, if they lasted during a year.
    This objection has been started in regard to testamentary executors, and it is held that the year runs only from the time of their obtaining possession of the estate. Custqms, says Pothier, have confined the powers of the executor to a year and a day, in order that the heir may not, during too long a time, be kept from the enjoyment of the estate, under a pretence that the execution of the will is not yet completed. Although they speak of the year after the decease, yet, the time only runs from that when the exe-, cutor did or could obtain possession of the estate, If contestations arise, the time only runs from their termination. Donations, 5, 1, 4.
    There is such a parity of reasoning, between the case of an executor and that of a curator, that the same principles must be applicable to both. ^ie Preseni> the property in bank constitute? the whole estate to be administered in New-Or, leans. The year after his appointment had hard, jy begun, when the present contestation arose®
    Will it be said, .that the whole curatorship ceased by the appearance of Smith’s heir ? The curator has a right to deipand the delivery of the estate to hirn, notwithstanding the appearance of the latter, who must receive from him the proceeds of the estate : and the functions of the cu, rator end only by the rendition of his accounts, which the heir has a right to demand. Civ. Code, 181, art. 142. He has claims on the estate which cannot be destroyed by the heir: he has a right to retain his commission and legal charges, and it is only to the balance, which the heir may have nny right.
    The packet deposited in the bank, appears to contain $400 in bank notes. It might have contained $10,000. Should the court determine, as we believe they will, that the blank check, filled up by Johnson’s executor, does not make the ?um there written, a part of the estate of the latter, no claim can be made by the plaintiff to this distinct packet, which ivas the object of a regular deposit, and was to be returned unbroken. It is clear, that Smith did not contemplate, when he ordered a cheek to be given £o Johnson, that the cashier, in order to pay it, should violate the seal of the packet.
   Deseigny, J

delivered the opinion of the court Both parties admit that if Johnson himself had filled the blank of the check, the transfer of the property would have been complete, and his testamentary executor would have aright to receive the money. Any question therefore as to the regularity of the check is put at rest by that admission.—But it is contended that the right to fill the blank of the check was personal to Johnson, and did not pass to his representative.

This is probabh a case, the like of which we would in vain search for ; it must be decided according to general principles, by analogy —Men will sometimes place such confidence in others as to trust them with a blank paper bearing their signature, to be filled by the trustee according to agreement, or with an obligation, part of which is written, and part remains to be written by the person so trusted. In all such cases it is evident that a power to fill the blank is given to the trustee by the subscriber, and that such a power is exclusive and personal, and cannot be transmitted to any body else, without the consent of him who gave it; for nothing would be more absurd th m to permit any person to exercise a right, which was granted to a particular individual from an implicit confidence in his probity and 1 virtue.

ft is not to be expected that much may be found in law books upon this very unusual mode of transacting business, which now and then, when men, in the simplicity of their manners, could rely on each other’s honesty, was indulged in. Ferriere, however, in his doctrine de droit, vo. blanc seing, speaks of it as follows ; “ Blanc seign is a paper signed at the bottom by him who intends to bind himself, give acquittance, or compromise at the, discretion of the person whom he entrusts with such blanc seing, giving him power to fill it with what he may think proper, according to agreement.”— This power, we say, is personal, and, as ajl other powers, dies with the attorney.

But if the plaintiff cannot recover on the blank check, he contends that the estate which he represents is entitled to the money, as being by Smith’s confession, and according to the proofs exhibited, the money of Johnson himself.

That this money cannot be claimed as a deposit, as the curator of Smith’s estate contends, must be acknowledged at once, the transaction between Smith and Johnson has none of the features of a deposit. No such thing as money ^vas ever deposited by Johnson in the hands of Smith: he gave him flour to sell, and Smith converted it into money.

But we have to enquire whether the money 1 now in bank is the proceeds of that sale, and if so, whether the executor of Johnson has a right to take it ?

The evidence goes very far to shew that the money here in contest is the proceeds of the sale of Johnson's flour : but what proves positively this money to be Johnson’s property, is the acknowledgment of Smith himself, who, on his death bed, declares that the money, which he had deposited in the bank, belonged to his nephew Johnson. It is true that the expressions, which he uses, are that he wishes to make his will, “ on account of some money which he had belonging to his nephew,” this unaided by any other testimony would not signify absolutely that all the money deposited in bank by Smith was his nephew’s, but when we see that he ordered the sum to be left blank in the check, “ because he did not now recollect the amount he had in bank,” and that the check was so drawn on the advice of the president of the bank, it being communicated to him, that as the bank book was not settled, the check might be drawn in blank and afterwards filled up, when the amount in bank should be ascertained, there can remain no doubt that the intention of Smith was to give a check for whatever sum he had in bank, and that Ids acknowledgement, that he had money in bank, belonging to his nephew, amounts’ ^ # ° ° 1 to a declaration that the money, which he had deposited there, was his nephew’s.

In a contest between the representative of Johnson and the representative of Smith, tou hi ng their respective rights to receive this money* such a declaration must be conclusive ; for the question here is not, whether Johnson is entitled to take in preference to the other creditors of Smith, such creditors., if any, being not parties to this suit; but simply whether Johnson has a right to recover the money, which Smith himself acknowledges to be his.

The intervention of Samuel Smith as executor of Johnson, having not changed the situation of G. Musson as special executor for this particular business, there is no need of taking any notice of it.

As to the sealed packet deposited in bank by Smith, there is no evidence that he acknowledged it to belong to Johnson; for Michael de Ar„ rnas, the only witness who makes any mention oí it, after having stated, in the first part of his deposition, that the check had been drawn for the sum of S3240, and a small bundle, declares upon recollection, that the sum was not filled up but left blank, making it thus improbable that any thing should have been written after the blank. At any rate} there is not upon this particular sub-feet sufficient evidence to enable this court to de } _ _ cide that a sealed packet, deposited in bank by Smith in his own name, was the property of another person. This bundle (or rather its contents for it has been since opened) must be surrendered to the curator of Smith’s estate, vlaunsel Wchite, whose quality as such is not contested by any proper party ; Germain Musson, as executor of Johnson, having no interest to dispute it, and Samuel Smith having not justified himself to be, either the heir, or the executor of James, as he had alledged.

The judgment of the district court, therefore, though approved in all other respects, must be reversed on account of this.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed ; and this court proceeding to give such judgment as th-.y think ought to have been rendered below, do order adjudge and decree, that the sum of three thousand two hundred and forty dollars, deposited in the office of discount and deposit of the bank of the United States, by James Smith, be delivered to Germain Musson, the special executor of James Johnston, and that the contents of the sealed packet, which had been deposite-! in the same office by said Smith, be delivered over to Maunsel ^"te> curator of said Smith’s estate ; and it is further ordered, that each party in his respective capacity shall pay his costs, and one half of the costs incurred by the bank.  