dissenting. Not having been able to come to the same conclusion as to the facts which this singular case presents, which my brethren have thought themselves bound to adopt, it is incumbent on me to give the reason for my opinion, which I will comprize in as short a space as possible. The defendants have endeavored to establish that the bonds in question were pledged and not sold to Casañera, and the verdict of the jury, which was in favor of the plaintiffs for $60,000, is qualified by the opinion, that the bonds were pledged.
There are certain facts connected with this defence, which have satisfied me that it has no foundation in truth:
I. We have a formal certificate, under the hand of the London house, F. da Lizardi Sf Co., attested by two witnesses, that the bonds were sold to Casañera, in the year 1837. It is attempted to weaken the effect of this instrument by limiting it to the six bonds bought by Casañera, but its meaning is too clear. It evidently relates to the bonds in the possession of Casañera, at the time of the' certificate. Else why is this clause appended to the certificate — “ and we further certify and declare, that we have paid unto the said Marquis de Casañera, through the medium of his agents in this city, the dividends which have made on saii bonds, until the present time, and that, to the best of our knowledge and belief, the said Marquis da Casañera is still the owner and proprietor of said bonds, and that he has them at the present time in his power and possession.”
II. If the bonds were pledged to Casañera for a loan, even the amount of which we are left to conjecture, its duration, and the onei'ous terms on which it was said to be contracted, necessarily imply that the lender should have some security for its reimbursement. Whether we test the validity of this pledge by our own laws, or those of France, as we have the means of ascertaining them, the security of Casañera was not worth the paper on which it was written. Against third persons and creditors of the defendants, Casañera could not have retained one of these bonds for an instant The delivery of the bonds, as stated in the counter letter of the 24th April, 1837, and the letter addressed to Casañera of the same date, gave him no privilege on the bonds, nor any means of protecting himself from loss, in the event of a breach of trust, accident, or insolvency of the Lizardis, That a man, such as Casañera is represented to be by the defendants themselves, would have loaned so large a sum, for such a length of time, without security, under the circumstances represented,! cannot believe, and I therefore dissent from the opinion of the jury, that the bonds were pledged, and adhere to the opinion of the defendants themselves, given in their certificate of the 13th Feb., 1843, that, in the year 1837, they sold them to Casariera.
III. It has been thought material to aver and place on record, that one of the two partners of the house of F. da Lizardi Sf Co. of London, and an active member of that firm, had no knowledge whatever of the transactions with Casañera.
*292IV. It appears that there is no trace of this transaction on the books of either tl10 London or Paris house. What reason can be assigned for this omission ?
I have reluctantly come to the conclusion that the whole affair was a stoekjobbing operation between the Lizardis and Casañera, which they dared not avow, and of which the instinct of self preservation induced them to leave no record. Although the Lizardis sold the bonds to Casañera, it by no means follows that he bought them for himself. He was also a banker; he had friends, probably customers at a distance, as the Lizardis had — “ Soy poseedor también, mios y de algún otro amigo, de 300 obligaciones,” says Casañera to his nephew, in his letter of the 25th F eh-, 1843.
I think the plaintiffs’ case is fully made out. A clearer case of fraud is rarely presented to a court of justice. The conduct of the parties throughout is indefensible, and without palliation or apology.
As to the amount for which the defendants are liable to the plaintiffs, I acquiesce in the opinion of my brethren.