
    Winchester v. Ory’s Syndics.
    A subsequent transfer of notes with notice and delivery, will bold against a prior pledgo and transfer by notarial act, without actual delivery, although due notice had beon given.
    The pledgo of a claim or note on another person, must be by notarial act. with actual [429] delivery of the thing pledged; and if it bo a negotiable note must be indorsed. Without such transfer and delivery the rights of third parties are not affected
    Appeal from the court of the second district, for the parish of St. James, the judge thereof presiding.
    This is an action in which the plaintiff seeks to recover a dividend of part of the proceeds of the estate of the ceding debtor, for the syndics, arising on several notes of the insolvent, held by plaintiff.
    These notes were originally held by Michel Bergeron, who had indorsed for the insolvent and become liable in a large amount. Bergeron having transactions with one Prevost and Jules Balloc, transferred and pledged all his right to said notes by public act to Prevost; stating in the act that they were on file in the clerk’s office, hut promises therein to deliver them as soon as possible. Prevost, soon after, transferred all his right and interest in said act of pledge to the widow Balloc, and notice thereof was given to the syndics of Ory, the original debtor, who had in the mean time made a cession of Ms property for the benefit of his creditors. This last transfer and notice took place in November, 1836. In the spring of 1838, Bergeron transferred to the plaintiff the very same notes by private act, which was shortly after-wards’ duly recorded^ and notice of the transfer given to the syndics. The plaintiff as the attorney and transferee of the notes took them from the clerk’s office, into his own possession.
    Soon after these proceedings, a tableau was filed by the syndics, and a dividend of $3958 was set apart on account of these notes. The question is, which one of the transferees is entitled to the dividend? The district judge gave it to the plaintiff. Prom judgment in his favor the syndics appealed.
    
      Miles Taylor for the plaintiff.
    
      Ca/non contra.
   Mokpiiy, J.

delivered the opinion of the court.

In 1833, Michel Bergeron paid, as indorser for J. B. Ory, notes to [430] the amount of $12,833 ; having subsequently borrowed $5550 of one Maurice Prevost, Bergeron made out his promissory note for the amount to the order of and indorsed by Jules Balloc, payable in 1835, and as collateral security he executed in favor of Prevost a notarial act pledging and transferring to him the notes he held against Ory, who had failed in the mean time. These notes were not delivered to the pledgee, but it is mentioned in the act that they were on file in the district court in and for the parish of St. James; and Bergeron promised to deliver them up as soon as possible. In 1835, Prevost transferred all his right under this act of pledge to the widow of Jules Balloc, and of this the defendants were notified in November, 1836. Some years after this, to wit, on the 2d of March, 1838, Bergeron, by a deed under private signature which was afterwards recorded, transferred and delivered these same notes to Winchester, and. the transfer was notified to the syndics of Ory on the 6th of the same month. In April following, a tableau of distribution was filed by the latter, allotting to Bergeron $3958 25 as a dividend on these notes, and on the 26th of May, they paid this amount to the attorney of widow Balloc. This suit is brought to recover this dividend on the ground that it has been improperly paid by the syndics. There was judgment below for the plaintiff and defendants appealed.

The only question presented for decision is which of the two transferrees of these notes was entitled to receive the dividend declared on them ? It must surely be the one to whom the notes had been delivered. The circum stance that they were withdrawn from the clerk’s office on a petition of Winchester, acting as attorney for Bergeron, has nothing in it which shows any unfairness on the part of the former. There is no evidence that he had any knowledge whatever of the previous pledge to Prevost; although he signed this petition as attorney for Bergeron, it was no doubt understood that he was [431] to keep the notes, which had been transferred to Mm but a few weeks before for a valuable consideration. This transfer having been notified to the syndics, vested in the plaintiff Bergeron’s claim on them. The pledge executed to Prevost, whose rights under it were afterwards transferred to widow Balloc, was defective. The La. Oode, art. 3123, provides that “-when a debtor wishes to pawn a claim on another person, he must make a transfer of it in the act of pledge and deliver to the creditor the note or obligation whieh is the evidence of it and indorse it, if it be negotiable; ” without therefore such transfer and delivery the rights of third parties cannot be affected. This delivery is required to guard against what has happened in this very case. The defendants, with notice of this subsequent transfer to plaintiff, should not have paid to widow Balloc the dividend due on these notes without requiring their production. They must have known, as the testimony proves that they did know, that they could not safely pay to any one but the holder of the notes; moreover, the obligation of Bergeron, to secure which the pledge was executed, fell due in 1835; for aught that appears in this record it may have been paid by himself, for it is not produced nor is it shown by whom it has been paid.

It is therefore ordered, that the judgment of the district court be affirmed, with costs.  