text:
    Joseph Ripka v. D. N. Pope.
    Where a promissory noto is made payable at a particular place, in an action against the-maker, it is not necessary to allege or prove that a demand of payment was made at the place designated in the note, to enable the plaintiff to recover. The want of such demand, if any injury to the defendant has resulted from it, is a matter of defence for the defendant.
    APPEAL by plaintiff from the Fourth District Court of New Orleans. Strawbridge, J.

      W. C. Denegre for appellant.
   The judgment of the court was pronounced by

Slidell, J.

This action is brought on three promissory notes, made in Pennsylvania. The defendants are the makers, and the plaintiff is payee. In one of them no place of payment is designated; in the two others is the expression, “ payable at the Philadelphia Bank.” No averment was made in the-petition, nor was it proved at the trial, that the two latter notes were presented at any time, at the Philadelphia Bank, nor to the makers any where before suit. The district judge gave judgment for the first note; but directed a non-suit as to the other two, stating that the settled rule in this State is, that presentment at the appointed place is a condition precedent.

That several decisions of our predecessors support the decree of the district judge is undeniable. We are not aware that the precise question has ever come before this court. It now becomes our duty to say, whether we will adhere to what has hitherto been deemed the rule upon this subject in this State.

The point is one whieh has been much discussed. In England, for a long time, the state of the law upon it was uncertain. The Court of King’s Bench had, for some years, adopted the doctrine, that where a bill was accepted, payable at a particular place, it was not necessary to aver in the declaration and prove a presentment at such place, but that it must be considered matter of defence. The Court of Common Pleas was in the habit of holding otherwise. The question at last came before the House of Lords, in the noted case of Rowe v. Young, 2. Brod. and Bing. 180. The opinions of the twelve judges were taken and laid before the House. Eight judges out of the twelve sustained the doctrine of the King’s Bench. The judgment, however, was reversed. That the decision of the Lords did not satisfy the public mind, may be inferred from the fact of the passage soon thereafter, of the act 1 and 2, Geo. 4, c. 78, in which it was recited, that the rule which it sanctioned was inconvenient in practice. See Chitty, p. 396. The history of the English law on this point is stated at length in the elaborate opinion of the Supreme Court of the United States, in Wallace v. McConnell, 13 Peters, 36.

In the United States also,-the question has been the subject of much discussion ; but there is a vast preponderance of authority in favor of the doctrine maintained by the majority of the twelve judges. Mr. Story, who disapproves it, admits that in America, that doctrine prevails, if not universally, at least to a great extent.

The received doctrine in America,” says he, “ seems to be this, that as to the acceptor of a bill of exchange, and the maker of a promissory note, payable at a bank or other specified place, the same rule applies ; that is, that no presentment or demand of payment need be made at the specified place, on the day when the bill or note becomes due, or afterwards, in order to maintain a suit against the acceptor or maker; and, of course, that there need be no averment in the declarations in any suit brought thereon, or any proof at the trial of any such presentment or demand. But that, the omission or neglect is a matter of defence on the part of the acceptor or maker. If the acceptor or maker had funds at the appointed place, at the time, to pay the bill or note, and it was not duly presented, he will in the suit be exonerated; not indeed from the payment of the principal sum, but from the payment of all damages and costs in that suit. If, by such omission or neglect of presentment and demand, he has sustained any loss or injury, as if the bill or note were payable at a bank, and the acceptor or maker had funds there at the time, which have been lost by the failure of the bank, then and in such case, the acceptor or maker will be exonerated from liability to the extent of the loss or injury so sustained.” Story on Promissory Notes, § 228.

The state of the law in this country, upon this point, down to the year 1839, was elaborately considered in the case in 13th Peters, by Mr. Justice Thompson. He there shewed, that in New York, the most highly commercial State in the Union, what may fairly be termed the American doctrine, had been considered settled for thirty years. He cited also the opinions of the Courts of Appeal in Virginia, Maryland, New Jersey, and Tennessee, to the same effect; and added (which however shows that the Louisiana cases had not been brought to his notice,) that the court was not aware of any American case where a con;trary doctrine had been asserted and maintained.

Looking to the state of the law since 1839, in the various appellate tribunals of the other members of this Union, so far as we have been able to ascertain them, we find a continued general adherence to the doctrine. See Payson v. Whitcomb, 15 Pick. 216. Otis v. Berton, 10 N. Hamp. 433. Bond v. Storrs, 13 Conn., 412. Silver v. Henderson, 3 McLean, 165. Titler v. Beckley, 2 Watts and Ser. 458. Montgomery v. Elliott, 6 Alab. 701. Armistead v. Armistead, 10 Leigh, 512. Evans v. Gordon, 8 Port. 346. Washington v. Planters' Bank, 1 How. Miss. 230. Cook v. Martin, 5 Smedes and Mars. 379. Sumner v. Ford, 3 Pike, 389. Butterfield v. Kinsie, 1 Scam. 445. Armstrong v. Caldwell, 1 Scam. 546. Cited in United States Digest Supplement, vol. 2, verlo Promissory Note.

The arguments which have been adduced by the advocates and opponents of this doctrine, it is not necessary now to recapitulate. They are familiar to the profession, and may be found in the opinions of the twelve judges, in Rowe v. Young, in Lord Eldon’s opinion in the same case, of Mr. Justice Thompson, 13 Peters, and of Justice Story in his Treatise on Promissory Notes, &c.

Without presuming to suggest on which side the weight of reasoning advanced by so many able minds prepond erates, we may at least, without impropriety say, that the arguments in favor of the American rule, have been almost universally successful in producing conviction ; and that the doctrine so uniformly maintained, after so long a probation, may be fairly considered as well adapted to the practical purposes of commerce and the ends of justice.

Under such circumstances, what is the duty of this Court in deciding a question which does not rest upon legislation, but upon commercial jurisprudence 1 See Civil Code 1908. It is true, that we have, upon the one hand, the opinions of our predecessors, which are entitled to very great respect; but, on the other, we are met by a vast array of authorities, which are also American, and could not have been announced and persisted in during so many years, without a due consideration of those great interests of commerce, which may be said to be common to the entire Union. He who properly appreciates this community of commercial interests, must be gravely impressed with the practical importance of uniformity throughout the United States, in the rules which relate to so prominent a branch of the commercial law, as that which regulates bills of exchange and promissory notes. That importance becomes additionally impressive, when we contemplate the vast advances which our country is making, in territory and population.

Moved by these considerations, we believe that we are not unduly innovating upon the course of our predecessors, in now adopting a doctrine which has obtained the sanction of an overwhelming majority of the appellant tribunals of the United States.

We therefore are of opinion, that the plaintiff was not bound to aver in his petition, nor prove at the trial, that a demand of payment was made at the Philadelphia Bank ; and that it was matter of defence for the maker to show, that he was in attendance by himself or his agent, and ready at the place designated to pay the money.

There is an averment in the petition, “ that according to the laws of the State of Pennsylvania, the rate of legal interest is fixed at six per cent; and that, in case of promissory notes, where a day certain is fixed for payment, interest is allowed from the day of payment.” No proof of the laws of Pennsylvania has been offered, and under our laws regulating the subject of interest, we cannot allow the plaintiff more than five per cent, and that only from judicial demand, no earlier demand having been proved.

It is, therefore, decreed, that the judgment of the District Court be so amended, as that the plaintiff recover from the said Daniel N. Pope, the further sum of $488 93, and the further sum of $432 45, with interest on said sums respectively, from the 4th December, 1848, until paid, at the rate of five per cent, per annum, and costs in both courts.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    The State v. Henry Levy and Jacob Dreyfous.
    All persons are competent: to testify as witnesses in court, both in civil and criminal mat-' ters, except those who are expressly excluded. No incompetency has been declared by our laws with reference to free persons of color. They are competent witnesses in civil and criminal matters. C. C. 2260.
    Parol testimony of the freedom of a colored person is admissible, when the evidence shows the witness was born free. But if the witness had been bom a slave and afterwards manumitted the question would have been different.
    There may be an accessory after the fact to the crime of larceny, under the laws of Louisiana.
    Where the foreman of the jury changed the finding of the jury, from guilty as an accessoiy after the fact, to guilty, without consulting with the other jurors, it is such an irregularity as vitiates the verdict, and a new trial will be granted.
    APPEAL from the First District Court of New Orleans. McHenry, J.

      W. A. Elmore, Attorney General, for State.

      Roselius and J. M. Wolfe, for appellants.
   The judgment of the court was pronounced by

King, J.

The defendants were jointly indicted for larceny; and from a judgment rendered upon their conviction have appealed. The questions which ariscr are presented in two bills of exception, taken to the opinions of the judge on the trial of the cause. The first was to the admission of a free person of color to' testify against the accused, who are white persons.- We have been referred to decisions of the courts of South Carolina and Maryland, in which it has been held, that free persons of color are incompetent to testify in cases in which the' rights of white persons are concerned. It is urged that the rule is founded on the degraded condition of the African in the States where slavery exists,, and should equally prevail in this. The decisions to which we have been referred cannot be considered as authority in our courts. They appear to be based upon statutes which expressly prohibit free persons of color from testifying, not only in criminal, but also in civil cases, in which white persons are’ parties. No such prohibition exists here. In. South Carolina the principle of' exclusion has been carried still further. It has been there held, that free persons of color are incompetent witnesses in any case, in a court of record of that State; although both the parties to the suit be of the same class with themselves. Growning v. Devana, 2 Bailey's Reports 192. 1 McCord, 435. 1 Harris & Johnson, 750. Our legislation and jurisprudence upon this subject differ materially from those of the slave States generally, in which the rule contended for prevails. This difference of public policy has no doubt arisen from' the different condition of that class of persons in this State. At the date of our earliest legislation as a territory, as well as at the present day, free persons of color constituted a numerous class. In some districts they are respectable from their intelligence, industry and habits of good order. Many of them are enlightened by education, and the instances are by no means rare in which they are large property holders. So far from being in that degraded state which renders them unworthy of belief, they are such persons as courts and juries would not hesitate to believe under oath. Moreover, this numerous class is entitled to the protection of our laws; but that protection would in many instances be illusory, and the gravest offences against their persons and property might be committed with impunity, by white persons, if the rule of exclusion contended for were recognized. Their competency must be tested by our own laws on the subject and the received rules of evidence, which, we think, leave the question free from doubt. The general rule is, that all persons are competent to testify, both in civil and criminal matters, except those who are expressly excluded. No incompetency has been declared by our laws with reference to free persons of color. On the contrary, they are included in the article of the code which prescribes the qualifications of the competent witness in civil matters. C. C. article 2260. Certain classes of persons are deemed incompetent to testify in consequence of the legal presumption that it would be unsafe to rely on their testimony. On that ground, those who are deficient in understanding, or who are insensible to the obligations of an oath, or are interested in the cause, are excluded from testifying. The provision of our code, which makes free persons of color competent witnesses in civil matters, is a legislative declaration that they are obnoxious to none of the disqualifying objections which, under the general rules of evidence, exclude witnesses. ít is a recognition that they are prima facie worthy of credit, and that their testimony may be safely received and weighed by courts and juries. No reason has been suggested why a distinction should exist in respect to their competency in civil and criminal cases to which white persons are parties; while weighty considerations present themselves in favor of their admissibility in both. The testimony of manumitted slaves was legal evidence under the Spanish and Roman laws. Under those laws, a slave, after his emancipation, could testify to facts which came to his knowledge while he was in bondage. He was a competent witness in criminal as well as in civil cases, with the single exception that he could not testify in a criminal prosecution other than high treason, against the master who had emancipated him and the members of his family. Partida 3, tit. 16, law 10, 19, 13, 18, and Commentaries of Gregorio Lope# on those laws. We may further add, that the opinion which we express in relation to the competency of this class of persons, is in accordance, so far as our experience has gone, with the uniform practice of our courts, which are in the daily habit of permitting them to testify in prosecutions where the defendants are white persons. The only deviation from that practice, of which we are aware, has been alluded to at bar; but neither the reasons nor the authorities upon which the district judge based the decision in that case have been furnished.

It is further objected, that parol testimony was improperly received to establish the- freedom of the witness. The testimony Was, that the witness was born free, and had always been considered free. No higher evidence, therefore, than parol could have been adduced. A different question would have been presented if it had been proved that the witness had at one time been held in slavery. 7 N. S. 648. 2 Ann. 998. The judge did not, in our opinion, err in receiving the testimony of this witness.

The second bill of exceptions states, that “the jury returned the following verdict.” “ We, the jury sworn to try this case, find Henry Levy guilty, and Dreyfous accessary after the fact.” “ That before the verdict was recorded, and while the jury was yet present in court, his honor, the presiding judge, observed to the jury, that there could be no accessary after the fact, in the case, and if they were of opinion that Dreyfous aided and abetted the other accused after the money had been taken, that he was a principal in the larceny ; upon which the foreman of the jury, without consulting the jury, and without withdrawing for that purpose, immediately erased the verdict first written, and wrote the following verdict, to wit, “guilty; 10th March, 1849; C. M. Hickey, foreman which, being read, was delivered as the verdict of the jury; and the jury being polled agreed to said verdict.”

The judge states that his instructions to the jury were, “that there could be no accessary in the case; that if they were satisfied that Breyfous was present aiding and abetting in the commission of the offence, they were authorized to find him guilty; that the verdict must be guilty or not guilty, as regarded Breyfous; upon which the foreman of the jury observed that the jury intended to find, that Breyfous was present aiding and abetting; whereupon the court instructed the jury to change the form of their verdict, which they accordingly did.”

The instructions given to the jury, as stated by the judge, in relation to their finding, we think are strictly legal. But the subsequent change of the verdict by the foreman, without conference with his fellow jurors, appears to us irregular. The statement of the foreman, that the jury intended to find that Breyfous was present aiding and abetting, is in contradiction with their first finding. The fact which would authorize the conclusion, that the accused was an accessary after the fact, are inconsistent with his presence as an aider and abettor. The foreman may have considered that the testimony established the presence of the accused as an abettor; but he should not have been permitted to speak alone for his fellow jurors, who had just said by their verdict that he was not present aiding in the commission of the offence. That there may be an accessary after the fact in a larceny, under our laws, we think, admits of no doubt; and an acquittal of the accused as a principal would have been no bar to his subsequent prosecution as an accessaiy after the fact. Bullard & Curry, 243, secs. 9 and 10. 4 Black. Com. 40. Carr’s Exposition of the Criminal Laws of Louisiana, 76. When the jury was informed by the judge, that the accused could not, under the indictment, be convicted as an accessary, they should have been permitted to confer together, and if they remained still of opinion that the testimony only established the guilt of Breyfous as an accessary after the fact, it would have been their duty to acquit him. We ai'e not prepared to say that their deliberations on this point, in the presence of the court, would have vitiated their verdict; but the statement is, that the verdict was changed without any consultation whatever between the jurors after the last instructions given by the judge. This irregularity vitiates the verdict, only so far as relates to Breyfous; leaving it unaffected as regards Levy.

It is therefore decreed, that the judgment of the district court, so far as relates to the accused, Henry Levy, be affirmed, with costs; and as relates to Jacob Breyfous, that it be reversed, and the cause be remanded for a new trial.


author: Slidell, J.

text:
    Sarah L. Moore v. Wm. M. Lambeth et al.
    As a general rule, no man can be divested of his property without his consent, and even an honest purchaser, under a defective title, cannot hold against the true proprietor.
    Where the owner stands by and permits his property to be sold as the property of another, without objection, or where he has fraudulently conveyed his property to one, who has sold it to a bona fide purchaser, or where he has entrusted it to a general agent as a factor or consignee in the habit of selling such property, he is estopped from claiming the property in the hands of an innocent purchaser.

      The plaintiff liad entrusted lier negroes to an agent to bring from North Carolina to Louisiana to carry on the business of planting in Louisiana, and the agent mortgaged the negroes to pay his own debts. Held by the court, that the purchaser at the sale under the mortgage, although an innocent purchaser, acquired no title to the plaintiff's property.
    APPEAL by defendant from the District Court of the parish of Natchitoches, Olcott, J.
    This appeal was tried in New Orleans, by consent of parties. The plaintiff had entrusted her slaves to F. N. Waddell, as her agent, to transport them from North Carolina to Louisiana, for the purpose of planting in the latter State. The slaves remained for several years in the possession of F. N. Waddell, when he mortgaged them to John Waddell, who lived in the same house with him. John Waddell passed off the notes, and the holder had the slaves seized and sold under the mortgage; at which sale the defendant became the purchaser. The claim of the plaintiff to the slaves was not generally known in the parish where they were. The plaintiff continued to reside in North Carolina, and was ignorant of the existence of the mortgage. After the sale she brought this suit against the defendant for the slaves.

      Campbell, for appellee.

      W. M. Randolph, for appellant,
    amongst other grounds of defence, contended : After the plaintiff’s neglect, in not following the property and avoiding the mortgage and sale of it, and after the delusive credit which she gave to Waddell, she is now estopped from claiming the slaves from the defendant. What do the books say are the principles which govern in cases of ihis sort ?
    Fonb. Equity, b. I, ch. 3, sec. 4, p. 137, Loissats Edition. “There is also an implied as well as an express assent; as, when a man who has a title, and knows of it, stands by and either encourages, or does not forbid the purchase, he shall be bound and all claiming under him, by it; neither shall infancy or coverture be any excuse in such case.” * * * * “ There is no principle better established in this court, nor one founded on more solid considerations of equity and public utility than that which declares, that if one man, knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land, under an'erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel — Qui tacet, consentiré videtur. Qui potest et debet vetare, jubet. Per Kent, ch. Wendell v. Van Rensselaer, 1 J. C. R. 345, and cases cited. See also Higinbothan v. Burnett, 2 J. C. R. 188; Storrs v. Barker, 6 J. C. R. 168. Harrison v. Edwards, 3 Litt. 351.
    “ It has also been laid down as an established rule in equity, that a second mortgagee, who has the title-deeds, without notice of any prior incumbrance, will be preferred; because, if a mortgagee lend money without taking the title-deeds he enables the mortgagor to commit a fraud. P. Buller, J. Good-title v. Morgan, 1 Term. Rep. 762. The fraud imputed to the first mortgage by this supposed rule of equity is, the enabling of the mortgagor to practice a fraud upon a third person by leaving him in possession of what furnishes the best evidence of his title.”
    1st Story’s Equity, sec. 385, last edition. “ Thus, if a man having a title to an estate which is offered for sale, and knowing his title stands by and encourages the sale, or does not forbid it, and thereby another person is induced to purchase the estate, under the supposition that the title is good, the former, so standing by and being silent, will be bound by the sale ; and neither he nor his privies will be at liberty to dispute the validity of the purchase. So, if a man should stand by and see another person, as grantor, execute a deed of conveyance of land belonging to himself, and knowing the facts, should sign his name as a witness, he would in equity be bound by the conveyance. So, if a party having a title to an estate should stand by and allow an innocent purchaser to expend money upon the estate, without giving him notice, he would not be permitted by a court of equity to assert that title against such purchaser; at least not without fully indemnifying him for all his expenditures. The same rule has been applied both at law and in equity, where the owner of chattels, with a full knowledge of his own title, has permitted another person to deal with these chattels as his own, in his transactions with third persons, who have bargained and acted in the confidence, that the chattels were the property of the person with whom they dealt; for, in cases where one of two innocent persons must suffer a loss, and a fortiori, in cases where one has misled the other, he who is the cause or occasion of that confidence, by which the loss has been caused or occasioned, ought to bear it.” See the cases of Nicholson v. Hooper, 4 Mylne & Craigj R. 179 ; and Pickard v. Sears, 6 Adolph & Ellis, 474. “Indeed, oases of .this sort are viewed with so much disfavor by courts of equity, that neither infancy nor coverture will constitute any excuse for the party guilty of the concealment or misrepresentation; for neither infants nor femes covert are privileged to practice deceptions or cheats on other innocent persons.”
    1st Story’s Equity sec. 387. “ There are, indeed, cases where even ignorance of title will not excuse a party; for, if he actually misleads the purchaser by his own representations, although innocently, the maxim is justly applied to him, that where one of two innocent persons must suffer, he shall suffer who by his own acts occasioned the confidence and the loss.” The cases which illustrate this principle are .numerous and to the point.
    In Hunsden v. Cheyney, 2 Vern. 150. “ The mother who was the absolute owner of a term, is present at a treaty for her son’s marriage, and hears her son declare, that the term was to come to him at his mother’s death, and is a witness to the deed, whereby the reversion of the term is settled on the issue of this marriage after the mother’s death. The mother is compellable in equity to make good this settlement, and to settle the reversion of the term accordingly after her death.” And though it was insisted on for the defendant, that she was not guilty of any fraud or ill practice, but was ignorant of her title, and knew not that she, as being -tenant in tail of a term, might dispose of it, and was no party to the marriage agreement, or concerned in it, and that it might rather be presumed, that she was imposed upon by her son, and made to believe that .she had but an estate for life, when she had in truth the ownership of the whole term in her; yet the court decreed it for the plaintiff.
    In the case pf Pickering v. Busk, 15 East, 37, the facts of which have been before stated: Lord Ellenborough, at nisi prius, gave judgment for the purchaser, upon the ground, “that the transfer of the hemp by direction of the plaintiff, into Swallow’s name, authorized him to deal with it as owner with respect to third persons; and that the plaintiff who had thus enabled him to assume' the appearance of ownership to the woi’ld, must abide the consequence pf his own act.” The King’s Bench affirmed tire judgment, and rested it upon the fact, “ that the sale was made by a person who had all the indicia of property.” The owner of the hemp was estopped to deny the sale of it, by the person to whom he had given the apparent right to sell.”
    The case of Pickard v. Sears, 33 Eng. Com. Law, Reports 115, we refer to with much satisfaction and confidence; because we find the principles which there controlled the court adopted into the jurisprudence of this .State by the present Supreme Court in the case of McMaslers, 1st An. 12. In the case last cited, the property was adjudicated to Sheafe ; when it was offered again for sale he protested, but became a bidder; the property was adjudicated to another, whose right to it, Sheafe contested; but the court held that he was estopped from questioning the purchase of a bond fide bidder. No fraud-* ulent intent is imputed to Sheafe ; he was judged by the impression which his conduct was calculated to produce, and without reference to the motive which prompted it.
    In Gregg v. Wells, 37 Eng. Com. Law Reports, 54, the Court went even farther than in Pickering v. Sears. “ The owner of goods who stands by and voluntarily allows another to treat them as his own, whereby a third person is induced to buy them bond fide, cannot recover them from the vendee.” Lord Denman, C. J. “ Pickard v. Sears was in my mind at the time of the trial, and the principle of that case may be stated even more broadly than it is there laid down. A party who negligently or culpably stands by and allows another to contract, on the faith and understanding of a fact which he can contradict, cannot afterwards dispute that fact in the action against the person who he himself assisted in deceiving. The defence here is, in substance, collusion between Durham and the plaintiff. As to the evidence, I think a second jury would find the same vordiet, and would be justified in finding it,” (p. 58.)

      In Coles v. Bank of England, 37 Eng. Com. Law Rep. 134 : “ Benjamin Coles, the nephew of the testatrix, and in some sort her man of business, one of her executors also, and of course one of the plaintiffs, was a clerk in the Bank of England, and was in the habit of accompanying the .testatrix when she received her dividends. She signed receipts both in the dividend warrants and in the bank books. He must have paid her the full amount of dividend that would have been due if the original amount of stock had continued in her name; but he had, in fact, in the interval taken another woman to the bank, who personated the testatrix from time to time, and as often forged the signature of the testatrix to several transfers of the stock, till at last a very small sum was left.” It was considered that the testatrix was guilty of negligence in receipting the warrants; for, if she had kept her accounts properly, she would have discovered that more was due to her; giving the receipt and her failure to complain, was such an acquiescence in what had been done, that she was afterwards precluded from gainsaying it, although it was admitted that she had been imposed upon. It was fully recognized, that parties guilty of negligence must be bound by it. (p. 141.)
    In Dongrey v. Topping and Holmes, 4 Paige’s Ch. Rep., 95, where an administratrix sold real estate of the decedent under surrogate’s order, in which estate she was entitled to dower, and in th.e terms of sale it was stated, that a clear satisfactory title would be given, and the purchaser paid the full value of the premises, under a belief that he was obtaining a perfect title, held, that the silence of the administratrix as to her claim of dower, was such a fraud upon the purchasers as to preclude her from after wards setting up such claim against him or his assigns. By the Court, “ Silence under such circumstances, was such a fraud upon the purchaser as to prevent her from afterwards making her claim for dower.” (p. 98.) See also Watson’s Executors v. McLaren, 19 W endell, 563, and cases cited.
    In Dozier v. Squires et al., 13 La., 130, the same principle was applied. A person had an equitable interest in property; he permitted the legal title to remain in another, and it passed into the hands of a bond, fide purchaser, without notice. The claimant of the equity was not allowed to question the validity of the sale. In Marsh v. Smith et al., 5 Rob. 524, after a review of many of the English cases, Judge Bullard held: “We cannot but conclude, that the present case comes within the principle thus laid down, and especially the great principle of equity, that where one of two innocent persons must suffer, he shall suffer who by his own acts occasioned the confidence and the loss ; even supposing that Marsh was not fully apprized of his own title, at the time he advised the purchase by Smith, it was a gross negligence on his part which evidently misled the defendant.”
    After a full review of the cases upon the doctrine of “ equitable estoppel,” in Smith’s leading cases, 2d vol. 511 (American edition of 1847,) the subject is concluded with the following observations on the authorities: “The truth is, that the courts have been, for some time, favorable to the utility of the doctrine of estoppel; hostile to its technicality. Perceiving how essential it is to the quick and easy transaction of business, that one man should be able to put faith in the conduct and representations of his fellow, they have inclined to hold such conduct and such representations binding in cases where a mischief or injustice would be caused by treating their effect as revocable.” See also C. C. 1701, 1810, 1811, 1805, 1812; McMaster’s case, 1st Ann. 12).
    In concluding our examination of the authorities which we think bear upon this point we will add a quotation from Roberts on Frauds, which we think is as just in principle as it is admirable in expression. “ There is a positive fraud in attempting to profit by the mistakes of a person which are the consequences of our own misrepresentation, or of the false expectation raised in his mind by our own illusory behaviour; and there is a negative fraud in imposing a false apprehension on another by our silence, where silence is treacherously expressive. In equity, therefore, where a man has been silent, when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent.” (p. 130.)
    The philosophy of the principle “thatwhere one of two innocent persons must suffer a loss, he who is the cause or occasion of that confidence by which the loss has been caused or occasioned, ought to bear it,” is sound. It is to encourage dealing among men, upon what appears, rather than to permit transactions to be defeated by what may be concealed.

      We are at a loss to anticipate an answer to the authorities which we have thus advanced to support our position. The plaintiff will cling, no doubt, to the letter of the code, that a person cannot sell what belongs to another; but we see the literal meaning of this article departed from daily, in all the sales made by agents in their recognized power to sell, resulting from the implied assent of the owner, under articles 1805, 1810, 1811, and 1812 of the code. So we find that the Supreme Court regarded the rule as subject to the qualification for which we contend, in 5th Rob. 524. Indeed this is a general principle of law, recognized in all countries, but subject to important qualifications, which require the owner to be without fault, or the buyer without fraud. See Fonblanque and Story, already cited.
    If the plaintiff fall back to the dictum which the court in Rippoll’s case, in 12 Rob. applied to immovables, we answer, that prescription is a means of acquiring property; it is given by law to protect the title of a possessor in good faith; but it does not extend itself so far as to cure the neglect, or to sanction the fraud of an owner who gives a delusive credit, until a favoured kinsman has reaped the advantages off of the citizens of this State.
    It maybe said, that the plaintiff did not “stand by,” when the negroes were sold. No, she did not stand by, on her feet, but there was a continued presence to the false credit which she gave. She was present when the negroes left North Carolina. She was present when she complained to her own witness, Cameron, that her kinsman never sent her any money. She was present when she closed her mouth to enquiry, and her ears to hearing, in relation to property which she claims to be her own, but which, to all the world, by her own consent, appeared to belong to F. IV. Waddell In the language of Roberts on Frauds, we ask, is not this silence “ treacherously expressive ?” Does it not amount in law to a “standing by?” But the authorities do not require her presence; it is her neglect in not making known her title, by which she is bound.
    It may be, the plaintiff will insist, that there is a distinction to be made between slaves and other property, in applying the authorities which have been cited. It has been before stated, that it appears from the record in this case, that slaves are movables in North Carolina; but we will go further and show how such property may be there disposed of. This court has held- that it will, without proof, take notice of the prevalence of the common law in the States of this Union. We infer from this decision, that those laws which distinguish the common from the civil law system, will be taken notice of. The common law, unassociated with the rules which are peculiar to it, conveys no definite idea to the mind. To assume that the common law is in force, is to assume an acquaintance with its general rules. Indeed the decision, by which the court declared that it would take notice of the existence of that system — a decision which was received with universal satisfaction by the bar — becomes of no practical use, if every principle of the common law has, notwithstanding, to be proved. This court in the case of Eugenie v. Preval et als., 2 Ann. 180, “ took notice” of the fact that slavery does not exist in France. On an application for a re-hearing, it was insisted, that foreign laws, when invoked in favor of a party must be proved ; but the court adhered to its decision, Now, the fact that slaves are chatties in North Carolina, and that they-are transferable by mere delivery, is a fact as notorious, as that slavery does not exist in France. It will not be contended that slaves are real, or immovables, to use the civil law expression, in North Carolina; but it will be contended that although chattels, they are not sold with the same informality; our object is to prove that they are, and to prove the fact' by the decisions of the Supreme Coui't of North Carolina. “ A sale of slaves, accompanied by actual delivery, is good without a bill of sale;” Smoth and, Wife v. Yeates, 1st Dev. 302; see also, Cheat v. Wright, 2 Dev. 289 ; 4 Dev. 73. The Supreme Court of Louisiana, in Bar-field v. Hewlett, 4 La. 120, said : “ The plaintiff has endeavoured to present to us evidence of the defendant’s bad faith, in his neglect to call upon his vendor, to produce a written title or authority, as slaves cannot be bought in this State, but by a written act.” “It is otherwise,” said the court, “in other States and countries.” We have, perhaps, been unnecessarily cautious on this point, for the whole tenor of the authorities, hold an owner equally culpable for his ignorance, concealment, or neglect, with respect to his real, as to his personal property.
    The point of the plaintiff’s argument, is that we should have called on Wad-dell for his title. Admit that the slaves were hers; suppose Sarah Moore
      had brought them to Louisiana, and she had been called upon for her -written titles. She would have presented the will of her father; but she could not have shown the name of a single slave in it, except perhaps the names of some few that were bequeathed to her brother and sisters. She would have urged that there was a “ parol partition of the slaves,” and that this parcel fell to her in the division : which would at last, have compelled a resort to oral proof of her title. From the nature of the property, it is impossible to preserve written evidence of the title to slaves; the owner of a large number of them, after forty years posession, would in vain look to his title-deeds for protection ; the old ones would have died off, and others of new names, ages, appearance, and sex, would fill their place. Oral testimony alone, could show that they were the descendants of those named in the original deeds. In every light in which it may be viewed, we regal'd it as absurd to say that a man can show a claim of title by paper, to slaves, as he can to land. It would even in this State be a vain thing to call for the exhibition of such titles; but to require them as to slaves brought here from a sister State, would be to ask for that which the whole world knows does not exist. Barfield v. Hewlett, 4 La.
    Why did not Sarah Moore take counsel on the consequence of her conduct ? She would have been told how much of his title to slaves the owner yielded, in the common law States, when he delivered up possession for a length of time. “ Five years’ possession of slaves constitutes a title in Virginia, upon which the possessor may recover in detinue.” Shelby et al. v. Grey, 11 Wheat. Rep. 361; S. P. Brent v. Chapman, 5 Cranch’s Rep. 358; Auld v. Norwood, 5 Cranch’s Rep. 361; Garth’s Executors v. Barksdale, 5 Munf. Rep. 101 ; Carter et al. v. Carter et al., 5 Munf. Rep. 108. The same principle has been adopted in Kentucky. (Smart v. Baugh, 3 J. J. Marshall’s Rep. 363. The same is true even where the slaves are loaned Garth’s Executors v. Barksdale, 5 Munf. Rep. 101. And the rights of the creditors of the loanee will be protected. Fitzhugh v. Anderson et al., 2 Hen. and Munf. 289, 308; Boatwright v. Meggs, 4 Munf. Rep. 145. Five years’ peaceable possession gives a title to a slave, and which, if lost, may be regained. Newby’s administrator v. Blakey, 3 Hen. and Munf. 57; Brent v. Chapman, 5 Cranch’s Rep. 358. Travis v. Claiborne, 5 Munf. Rep. 435.” Law of slavery, 77, 78, 79. She would have been told that by the Supreme Court of the State in which she lived, slaves are considered personal property, and in all respects alienable as other chattels. She would have been told that coming from other States, they were so regarded when they arrived in Louisiana. She would have been warned against giving the indicia of her property to another, and told, that if she created Waddell an apparent owner, the law would estop her to deny his acts as such, “ although no authority was in fact ever given.” “As if the owner, of ahorse send it to a common repository, for the sale of horses, the owner would be bound by the sale, without his express consent, to a bona, fide purchaser,” because an authority to sell shall be presumed against him. Pickering v. Busk, 15 East 38, Chitty on contracts, 171. She would have been told, that, by the laws of Louisiana, creating Waddell the apparent owner of the slaves, silence and inaction on her part would be construed into a permission to him to use them as his own; and that third persons so dealing with him would be protected. If Sarah Moore really be the owner of these slaves, we must say that we have never met with a case which discloses the same neglect of title; a neglect, too, which is aggravated by her having received no compensation for their services during the time that her kinsman had possession of them. See Cameron’s testimony. "Why did she not make some enquiry ? It was an easy matter to find a professional gentleman to prosecute this suit; it would have been as easy to obtain information as to the true situation of Waddell. A letter to the recorder of mortgages, would have informed her whether the slaves were bound by mortgage or judgment recorded. The fact of her not getting any money, should have aroused her suspicion ; her confidence in her relation might have justified her in excusing him for one, two, or perhaps three years ; but beyond that time, we cannot understand how confidence and forbearance could go further; for it is not in the nature of man or woman, to persist in taking excuses in the place of remittances. But his pertinacity in continuing his false credit, and her forbearance with her kinsman, had a period beyond which neither the one nor the other would go; the first ceased when the creditors of Waddell wrested the property from him to pay the debts which it had been mortgaged to secure ; and the last ceased when her kinsman could no longer derive any practical benefit from the continuance of it. Her witness says, that when she first heard of the sale of the slaves, she spoke of it with surprise and indignation. It is somewhat strange that she had no surprise and indignation during the five years that Waddell had possession of the slaves, at his not remitting any money on account of them ; and that the surprise and indignation did not manifest itself by enquiries, which properly directed would have given such notice of her title that no one would have bid for the property.
   The opinion of the court was pronounced by

Slidell, J.

This is a petitory action, brought in the year 1841, for the recovery of certain slaves and their increase, and damages for their wrongful detention. The defendant claims under a judicial sale made in 1840, to satisfy a mortgage of the slaves granted by F. N. Waddell in 1837.

It appears from the evidence in the cause, that the plaintiff is a native and resident of North Carolina, and that the slaves, previous to their importation into this State, were employed on an estate of the plaintiff in North Carolina, under the supervision of F. N. Waddell, her connexion and agent. In the year 1835, he, with her consent, brought these slaves and others belonging toiler brother, to Louisiana, under an agreement that they should be worked for their benefit. It does not distinctly appear whether the plaintiff was to receive specific wages for them, or be remunerated for their services by a share of the proceeds of their labors. But it is unquestionable, that Waddell was clothed with no higher control than that either of a lessee or an agent; and that as between the parties the ownership was not intended to pass, and never did pass. The conduct of Waddell in mortgaging the slaves in his own name, and for his own benefit, and thus attempting to create an incumbrance, which subsequently resulted in the judicial safe, under which Lambeth holds, was utterly unauthorized, and a gross fraud upon the plaintiff.

The question then presented in this cause is, upon whom are the consequences of this fraud to fall ? Upon the plaintiff, whose confidence and rights have been violated, or upon the defendant, who claims to be a bond fide purchaser, for a valuable consideration ? "

Before entering upon the consideration of this question, it is necessary to state some further facts upon which the defendant relies in support of his title.

When Waddell came with the slaves to Louisiana, in 1835, he established himself upon lands belonging to his relation, John Waddell, and cultivated it by their labor. He sold the crops in his own name. The slaves appear upon the assessment roll of 1840 in his name. The control which he appeared to exercise over them, was that of an ordinary owner. Two witnesses, residing in the parish, seem to have entertained the impression that Waddell was not the owner; but others state their entire ignorance of any outstanding title, and it was admitted at the trial, that many witnesses of the parish could be produced, who would swear, that they never knew of Sarah Moore having giveu any notice of her claim to the slaves. The mortgage was given by F. N. Waddell, in 1837, to John Waddell, his relative, who knew the plaintiff’s title;but the mortgage notes passed into the hands of parties who are not proved to have been cognizant of the fraud, and whose good faith is claimed as enuring to Lambeth’s benefit.

It is unquestionably true, as the general rule, that no man can be divested of his property without his own consent; and, consequently, that even the honest purchaser under a defective title, cannot hold against the true'proprietor. Nemo plus juris in alium transferre protest quam ipse habet.

To this general rule there are undoubtedly exceptions. A vendor who has consented to a transfer of his property, under circumstances of fraud, has not, in legal contemplation consented to part with it, and might recover it from his vendee. But if it had passed ioto the hands of an honest purchaser, he would hold by a better title than the first vendee, and would be protected against the secret equity. So also in some of the transactions of commerce, an owner may be estopped from reclaiming his property from a subsequent bond fide purchaser, by having voluntarily placed in the hands of another the indicia of ownership, or exhibited him to the world as a person having power to dispose of it; and however certain his intentions not to part with his ownership, he would not be heard against an honest purchaser, who had acted upon the confidence thus imprudently reposed. Such are the cases of a bona fide holder of a bill of lading, received from a fraudulent consignee, who abuses the confidence of his consignor; or the bond fide purchaser of goods from the dishonest factor, whose common business it was to sell goods of that character, and to whom the owner had entrusted them under instructions which were disobeyed.

But, after a careful consideration of this subject, we have not met with any authority which would justify us in taking the present case out of the general rule, which throws upon the transferree the hazard of his author’s title, and requires the consent of the owner to the divestiture of his rights.

The case of Barfield v. Hewlett, 4 L. R. 120, is stpongly analogous to the present. There the plaintiff proved his title ; and it was admitted that the defendant purchased the slaves at auction, and took Harraldson's bill of sale. The slaves had been delivered by the plaintiff to Harraldson, under a written agreement Ihat he should bring them to Louisiana and hire them for the plaintiff, till the arrival of the latter in Attakapas, or Opelousas. Harraldson brought them to New Orleans, where he publicly offered them for sale, and finally put them up at auction. It is clear, said the court, that the defendant acquired no title; his vendor having none himself, nor any authority to convey any.

In McBurney v. Flagg, 11 L. R. 333, the case was thus : Youngblood came into possession of some slaves in South Carolina, under an agreement made in 1839, with the owner, McBurney, to sell him the slaves conditionally at a stipulated price on credit with interest. It was agreed that Youngblood should take possession of the slaves, and might remove them out of the State. But it was expressly stipulated that the property of the slaves and their issue, should abide in McBurney; that Youngblood should not become owner of them, nor they be liable to his contracts, until he should have paid the stipulated sums. He came with the slaves to Louisiana, and in 1830 mortgaged them to Flagg. Upon his failure to pay the mortgage debt, Flagg obtained an order of seizure and sale, when McBurney brought suit and claimed them as owner. Flagg answered by a general denial, and further averred, as the defendant has done in this case, that the petitioner suffered McBurney to introduce the slaves into this State, and thereby enabled him to obtain credit in fraud of third persons, by reason of which the property became liable for his debts. The plaintiff had judgment as owner; and upon appeal it was affirmed.

In Russell v. Favier, 18 L. R. 587, the plaintiff brought a petitory action for a slave. He had brought the slave from Virginia to Mississippi, in 1836, with a number of others, for the purpose of hiring them out. The slaves were hired out at the commencement of each year, and the plaintiff annually visited the State for the purpose of receiving their hire. He had an agent in Vicksburg who attended to his business in his absence. In January, 1838, the slave was hired to one Bucner, who, in April following, took her to Natchez, and after offering her for sale privately, at different times, finally had her sold at auction, when Veill became the purchaser, brought her to New Orleans, and sold her to the defendant, who had no notice of the fraud. The plaintiff’s claim was sustained, upon the ground that Russell had no intention of passing the right of property to Bucner, but only hired the slave to him ; that he only intended to give a temporary possession, and that the subsequent fraud of the lessee could not deprive the owner of his right of property.

In Brown v. Glathey, 4 Ann. 124, the plaintiff had hired a slave in Kentucky, to Craig, with the understanding that he might take the slave as a domestic servant to Louisiana, whither he was-going for a temporary purpose, and bring her back on his return. Craig fell in debt in Louisiana, and the slave was seized under attachment by his creditors. It was held that the owner did not lose his right in favor of the lessee’s creditors, although the lessee’s possession and his declarations- might have induced them to trust him.

The only case in our reports cited by counsel, which seems to militate against those above referred to, is that of Jenkins v. Thenet, 9 Rob'. 35. In that case it was decided, that a purchaser from a person who came into possession of slaves in Maryland, as administrator of the deceased owner, fraudulently sold them here as his own, and converted the proceeds to his own use, could not hold them against the succession of the deceased, the buyer having notice of the fraud at the time of his purchase. It is true, that the court then used the following language : “ Slaves being thus regarded as chattels' in Maryland, and having been brought into this State, and possessed for many years by one of our own citizens, he must be presumed to be the true owner, and, consequently, a bond fide purchaser from him, without notice of the title of the estate of Alexander Lea Fenwick, ought to be protected,” &c. But, these remarks may be deemed obiter dictum, the cognizance of the fraud by the purchaser being an ample basis for the decree rendered.

It has been attempted to sustain the defence here upon the ground of an equitable estoppel, under the doctrine so familiar to courts of equity in our sister States, and which has been frequently recognized in our own jurisprudence, that where one man who has a title, and knows of it, stands by and either encourages, or does not forbid the purchase, he shall be bound by it. It is argued, that the plaintiff’s case falls within the rule, because she permitted the slaves to go into Waddell’s possession to be brought to this State, and remain here in his apparent control as owner during five years, without publishing her title to the world, although complaining meanwhile that he made her no remittances. But, it must be observed, that she never gave him possession as owner; that she was distant from the scene of fraud, and had no knowledge either of the mortgage, or of the resulting judicial sale under which the defendant claims, until a short time before she brought this suit; all which has been clearly proved. It cannot be said, under these circumstances, that she has stood by, has been silent when she should have spoken, and is therefore estopped in good conscience, from revendicating the property of which she has been despoiled.

With regal’d to the testimony in this cause, objections of form have been discussed by the defendant’s counsel, which we consider unavailing: the party having, in our opinion, concluded himself by the agreement under which the cause was re-opened after the first trial. After a careful consideration of the evidence, we are entirely satisfied as to the plaintiff’s ownership.

Being of opinion that the judgment of the court below is correct, we have deemed it unnecessary to consider the plaintiff's motion for the dismissal of the appeal.

The judgment of the district'court is therefore affirmed, with costs.

Eustis, C. J. I assent to the correctness of the judgment of the district court; but my reasons are other than those expressed in the opinion of the court.