
    No. 4676.
    Citizens’ Bank of Louisiana, for the use of the Phenix National Bank of New York v. John Baltz.
    This is a suit on a mortgage note drawn by defendant, and lost in transitu from How York to New Orleans, to which latter place it had been sent for collection. The Citizens’ Bank of Louisiana offered him a bond of indemnity if he would pay the note at maturity, which he declined. Under this statement of facts;
    Held — That the defendant is liable for the interest due on the note from the maturity thereof; for counsel’s fees, and for the costs of the act of mortgage. He could have avoided them all by depositing, or tendering a deposit of the amount of the note when it fell due, and thus putting the plaintiff in default. But he is not liable for the costa of advertisement for the recovery of the lost note, as he can not be made to pay for either the misfortune or the negligence of plaintiff.
    APPEAL from the Fourth District Court, parisli of Orleans. Lynch, J.
    
      A. Pitot, for plaintiff and appellant. Alcée J. Ker, for defendant and appellee.
   Morgan J.

Baltz owed a note, secured by mortgage, to the Phenix National Bank of New York

The note was sent for collection to the Citizens’ Bank of Louisiana. The note was lost.

When it matured, Baliz expressed a willingness to pay it, provided the note was presented, in order that he might thus cause the mortgage to be erased. The Citizens’ Bank offered him a bond of indemnity if he would pay the note. This he declined. Suit was instituted against him.

The only questions before us are: 1 — Whether he is liable for the interest due on the note from the maturity thereof. 2 — Whether he is responsible for counsel’s fees. 3 — Whether he should pay the costs of the act of mortgnge. And lastly, whether he should bo made to pay for the advertisement of the lost note.

To the three first questions we give an affirmative answer. He could have avoided them all by depositing, or tendering a deposit of the amount of the note when it fell due, and thus putting the plaintiff in default.

To the last question we say, no. He can not be made to pay for either the misfortune or the negligence of the plaintiff.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be amended by condemning the defendant to pay to the plaintiff eight per cent, interest on one thousand dollars from the nineteenth December, 1870, until paid, six dollars costs of copy of act of sale, and fifty dollars attorney’s fees, and that as thus amended the judgment of the district court be affirmed, with costs in both courts.

Rehearing refused.  