Porter, J.
delivered the opinion of the court. The petitioners state, that they are the beneficiary heirs of the late David Hodge.
That, on the 12th August, 1789, Laurent Segur, of the city of New-Orleans, mortgaged to Gilbert St. Maxent, property adjoining said city, for the sum of $72,000.
That, on the 26th February, 1791, Gilbert St. Maxent, being indebted to David Hodge in the sum of $4075. 50, mortgaged to him the first payment of the debt due by Segur.
That Thomas Durnford, as agent of Hodge, accepted the said mortgage from Maxent, and by thus undertaking to act for the mortgagee, engaged to do every thing that would render the contract operative and valid; and particularly, to give notice of it to Segur.
That the heirs of Segur have sold a part of the mortgaged property to Gallien Preval.
That the said heirs refuse payment of the [119]*119portion hypothecated to Hodge, in the mortgage given by their ancestor to St. Maxent, on the ground of want of notice that any part of the debt was mortgaged or assigned; in consequence of which, the whole amount was paid to St. Maxent, the original mortgagee.
And that David Hodge, departed this life, on the 2d August, 1791, leaving Thomas Durnford his executor; who, soon after, commenced an action against the estate of the said G. St. Maxent, on the said mortgage or assignment.
By reason of which premises, the petitioners pray, that the heirs of Segur may be condemed to pay the said sum of $4075—that Durnford be also called to answer the petition; and if it shall appear, that the estate is exonerated, by reason of any default in giving notice, that he be decreed to pay the same with interest; and lastly, that Gallien Preval may be made a party, and that he have notice of the claim now set up.
To this petition, the heirs of Segur pleaded that the act of transfer or assignment, was never notified to their ancestor, and that he paid in his life time, the whole amount of the mortgage debt, to St. Maxent.
Durnford set up the following grounds of defence.
[120]*1201st. A general denial.
2d. That the defendants were not heirs of Hodge.
3d. That the mortgage was not taken for any debt due, or demand of Hodge, but for the benefit of sundry persons, mentioned in an annexed account.
And fourth, that the defendant was appointed executor, with Robert Dow and others—that no final settlement of the said estate has yet been made, and that it is supposed to be insolvent.
With leave of the court, the defendant afterwards pleaded the prescription of one, two, three, four, five, ten, twenty, and thirty years.
Preval, the purchaser of the mortgaged property, answered and averred, that the matters and things now in dispute, had already been decided in the case of Thomas Durnford vs. Laurent Segur, where judgment was given for the defendant.
It seems to have been conceded, in, the argument, that the defence, set up by the heirs of Segur, has been fully sustained by the proof. The objection, that the persons named in the petition, are not heirs of Hodge, was also abandoned. We have, therefore, only to [121]*121inquire, whether a good cause of action has been established against the defendant Durnford.
The plaintiffs insist, they have a right to maintain their action against him, because, he acted as agent of Hodge, in accepting a mortgage or transfer of a claim on Segur. That by thus undertaking to act for another, he engaged to do every thing to render the agreement, entered into by him, valid and operative; and that notice to the person, whose debt was assigned, was necessary, in order that the transfer should have that effect.
The instrument of writing, by which this agency is said to be evidenced, was passed on the 26th February, 1791; and it is therein stated, that Maxent, being indebted to Hodge in the sum of $4075, for which he holds obligations, due at several times—the former declares, that he mortgages to the latter, an equal quantity upon the $72,000 that Segur owes him, to be taken out of the first instalment of that debt.
Then follows the clause, which is the most material in this case.
“ Y estando presente à su otorgamiento Don David Hodge, digo la acceptaba à su favor para
[122]*122usar de ella siempre y quando le convenga, y así lo otargaron y firmaron siendo testigos Don M. Gomez, Don Celestin Lauvergne, y Santiago LeMaire, vecinos y presentes.—Thomas Durnford para David Hodge, Gilbert Antonio St. Maxent."—And being present at the making of this act, Mr. David Hodge says, he accepts it in his favour, for to use it, when and where it may be necessary, and thus he approves it, and signs it. The witnesses being Miguel Gomez, Celestin Lauvergne and Santiago Le Maire.—Thomas Durnford, for David Hodge, &c.
The expressions just quoted, connected with the testimony taken in the cause, that Hodge was affected with the palsy, some months previous to his death, has given rise to much discussion, between the counsel who have argued this cause. It is insisted on the one side, that it is evident, from the statement of the notary, announcing the presence of Hodge at the making of the instrument, that he was in fact there, and that Durnford signed for him, not as agent in the transaction, but merely to supply a defect, created by his infirmity. While on the other, it is urged, that the signature of the defendant announces the quality under which he acted—that the de[123]*123claration of the notary, that Hodge was present, is not inconsistent with a constructive presence through his agent, qui facit per alium fecit per se:—that if Hodge had been there and disabled by bodily weakness from affixing his name to the act, the conclusion of it would have been different, as the law makes it the special duty, in such cases, of the notary to state the causes which prevented the party from signing. Febrero addic. part. 1, cap. 19, § final.
We agree with the plaintiff in his construction, and shall, therefore, proceed to examine the main question in the cause, whether it was the duty of Durnford to give notice of the assignment.
The petition in this case, charging in express terms, that Durnford was attorney in fact of Hodge, and there being nothing in the evidence which contradicts this allegation, we dismiss all consideration concerning his duties as negotiorum gestor, and his responsibility as such.
Viewing him in the light of an attorney in fact, there has been no proof given, that the power extended any further than to execute the instrument on which his name appears.
[124]*124It would be presuming strongly, indeed, to conclude, that because a man acted as empowered agent in a particular transaction, that he therefore undertook to go on and do all other things connnected with, or arising out of it. In the case of the negotiorum gestor, who interferes where the interest of the principal does not positively require it, there is a good reason for requiring him to do every thing which is a dependence of the affair he commences.
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Porter, J.
delivered the opinion of the court. The petitioners state, that they are the beneficiary heirs of the late David Hodge.
That, on the 12th August, 1789, Laurent Segur, of the city of New-Orleans, mortgaged to Gilbert St. Maxent, property adjoining said city, for the sum of $72,000.
That, on the 26th February, 1791, Gilbert St. Maxent, being indebted to David Hodge in the sum of $4075. 50, mortgaged to him the first payment of the debt due by Segur.
That Thomas Durnford, as agent of Hodge, accepted the said mortgage from Maxent, and by thus undertaking to act for the mortgagee, engaged to do every thing that would render the contract operative and valid; and particularly, to give notice of it to Segur.
That the heirs of Segur have sold a part of the mortgaged property to Gallien Preval.
That the said heirs refuse payment of the [119]*119portion hypothecated to Hodge, in the mortgage given by their ancestor to St. Maxent, on the ground of want of notice that any part of the debt was mortgaged or assigned; in consequence of which, the whole amount was paid to St. Maxent, the original mortgagee.
And that David Hodge, departed this life, on the 2d August, 1791, leaving Thomas Durnford his executor; who, soon after, commenced an action against the estate of the said G. St. Maxent, on the said mortgage or assignment.
By reason of which premises, the petitioners pray, that the heirs of Segur may be condemed to pay the said sum of $4075—that Durnford be also called to answer the petition; and if it shall appear, that the estate is exonerated, by reason of any default in giving notice, that he be decreed to pay the same with interest; and lastly, that Gallien Preval may be made a party, and that he have notice of the claim now set up.
To this petition, the heirs of Segur pleaded that the act of transfer or assignment, was never notified to their ancestor, and that he paid in his life time, the whole amount of the mortgage debt, to St. Maxent.
Durnford set up the following grounds of defence.
[120]*1201st. A general denial.
2d. That the defendants were not heirs of Hodge.
3d. That the mortgage was not taken for any debt due, or demand of Hodge, but for the benefit of sundry persons, mentioned in an annexed account.
And fourth, that the defendant was appointed executor, with Robert Dow and others—that no final settlement of the said estate has yet been made, and that it is supposed to be insolvent.
With leave of the court, the defendant afterwards pleaded the prescription of one, two, three, four, five, ten, twenty, and thirty years.
Preval, the purchaser of the mortgaged property, answered and averred, that the matters and things now in dispute, had already been decided in the case of Thomas Durnford vs. Laurent Segur, where judgment was given for the defendant.
It seems to have been conceded, in, the argument, that the defence, set up by the heirs of Segur, has been fully sustained by the proof. The objection, that the persons named in the petition, are not heirs of Hodge, was also abandoned. We have, therefore, only to [121]*121inquire, whether a good cause of action has been established against the defendant Durnford.
The plaintiffs insist, they have a right to maintain their action against him, because, he acted as agent of Hodge, in accepting a mortgage or transfer of a claim on Segur. That by thus undertaking to act for another, he engaged to do every thing to render the agreement, entered into by him, valid and operative; and that notice to the person, whose debt was assigned, was necessary, in order that the transfer should have that effect.
The instrument of writing, by which this agency is said to be evidenced, was passed on the 26th February, 1791; and it is therein stated, that Maxent, being indebted to Hodge in the sum of $4075, for which he holds obligations, due at several times—the former declares, that he mortgages to the latter, an equal quantity upon the $72,000 that Segur owes him, to be taken out of the first instalment of that debt.
Then follows the clause, which is the most material in this case.
“ Y estando presente à su otorgamiento Don David Hodge, digo la acceptaba à su favor para
[122]*122usar de ella siempre y quando le convenga, y así lo otargaron y firmaron siendo testigos Don M. Gomez, Don Celestin Lauvergne, y Santiago LeMaire, vecinos y presentes.—Thomas Durnford para David Hodge, Gilbert Antonio St. Maxent."—And being present at the making of this act, Mr. David Hodge says, he accepts it in his favour, for to use it, when and where it may be necessary, and thus he approves it, and signs it. The witnesses being Miguel Gomez, Celestin Lauvergne and Santiago Le Maire.—Thomas Durnford, for David Hodge, &c.
The expressions just quoted, connected with the testimony taken in the cause, that Hodge was affected with the palsy, some months previous to his death, has given rise to much discussion, between the counsel who have argued this cause. It is insisted on the one side, that it is evident, from the statement of the notary, announcing the presence of Hodge at the making of the instrument, that he was in fact there, and that Durnford signed for him, not as agent in the transaction, but merely to supply a defect, created by his infirmity. While on the other, it is urged, that the signature of the defendant announces the quality under which he acted—that the de[123]*123claration of the notary, that Hodge was present, is not inconsistent with a constructive presence through his agent, qui facit per alium fecit per se:—that if Hodge had been there and disabled by bodily weakness from affixing his name to the act, the conclusion of it would have been different, as the law makes it the special duty, in such cases, of the notary to state the causes which prevented the party from signing. Febrero addic. part. 1, cap. 19, § final.
We agree with the plaintiff in his construction, and shall, therefore, proceed to examine the main question in the cause, whether it was the duty of Durnford to give notice of the assignment.
The petition in this case, charging in express terms, that Durnford was attorney in fact of Hodge, and there being nothing in the evidence which contradicts this allegation, we dismiss all consideration concerning his duties as negotiorum gestor, and his responsibility as such.
Viewing him in the light of an attorney in fact, there has been no proof given, that the power extended any further than to execute the instrument on which his name appears.
[124]*124It would be presuming strongly, indeed, to conclude, that because a man acted as empowered agent in a particular transaction, that he therefore undertook to go on and do all other things connnected with, or arising out of it. In the case of the negotiorum gestor, who interferes where the interest of the principal does not positively require it, there is a good reason for requiring him to do every thing which is a dependence of the affair he commences. It is of the very essence of such contract, that there should be something done for another, without the order or knowledge of the person for whom it is transacted; consequently, the person interested, has not the means of taking those steps, or making those arrangements, which may be rendered necessary, by the change made in his affairs. Under such circumstances, it is a wise provision of the law which compels the negotiorum gestor, to do every thing which is necessarily dependant of the business he commences : to finish what he has begun. Without such an obligation, every man in the community would be at the mercy of ignorant, and officious friends. But this reason has not any application to the attorney in fact, who [125]*125acts under the order of the principal; the latter knows, what he has directed his agent to do; his attention is awake to demand an account of what has been done; and he has the means of taking, himself, all measures consequent on the change produced in his affairs, by the conduct of the person who acts for him.
We see, therefore, no ground whatever, for holding, that Durnford was obliged to give notice of this mortgage. There is no evidence before us, that he was the general agent of Hodge—or that, in the present instance, his mandate extended any further than accepting the mortgage from St. Maxent.
This view of the case, renders it unnecessary to decide, what degree of care is required of the attorney in fact. The counsel has referred us to Pothier, on the contract of mandate, where it is stated, that he who accepts, gratuitously, an office of friendship for another, is obliged to bring to the discharge of it all the care, and all the skill, which the performance of the duty he has asumed requires; and that he is responsible for the slightest fault—Pothier, traité du contrat de mandat, n. 46, 47, 48. When the case does occur, it will be, [126]*126perhaps, seen that these principles of the Roman law from which Pothier draws his doctrine, have not been adopted to their full extent in Spain, see p. 5, tit. 12, l. 20, 21; ib. 7, 32, 2.12 Martin, 84.
And we are to be understood not to express any opinion on the question raised in argument, whether the defendant is not liable, by reason of not having collected the money, in his capacity of executor. The petition does not allege responsibility in that character, and the evidence has been taken under an exception. Besides, we are of opinion that if the defendant’s conduct,as executor,is to be made the ground of recovery, that a single act of his administration cannot be selected as the foundation of a separate suit. That the action ought to be to compel him to render an account of every thing he has done in that character. To sanction any other course would be to authorise a suit for each act done by him as executor, which would unnecessarily lead to a great multiplicity of actions. Febrero, p. 1. cap. 1, § 6. no. 95. Curia Phil. Com. Terreste, lib. 2, cap. 11, nos. 1 & 19.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.