text:
    McDowell et al. v. Read et al.
    Where a court is called upon to enforce a right, it may avail itself of its jurisdiction over the person to do justice relative to a subject matter beyond its jurisdiction, though lands be affected by the decree.
    APPEAL from the Fourth District Court of New Orleans,"Slrawbridge, J.

      Benjamin and Mieou, for the appellants.
    The Object of this suit against the garnishee is, to annul a contract made in fraud of the rights of plaintiffs, creditors of the defendants. We contend: 1st, that the contract, which we attack, is invalid; and 2d, that if invalid, the court may administer the proper remedy,
    I. As to the validity of the contract. Contracts are valid or invalid, according to the law of the place where they are made, an'd the law controlling the parties who make them. A contract void where it is made, is void every where. Astor v. Price, 7 Mart. N. S. 409. The validity of a contract is determined by the law of the country where it is made, although the delivery of the thing is to take place abroad. Lynch v. Postleihwaite, 7 Mart. 213. A will, valid where it was made, vests the property in the legatee. Day v. Thibodeaux, 5 Mart. N. S. 496. A verbal authority to sell a slave, given in a State where a verbal sale of a slave would be g^od, is legal proof of authority to sell by written title here. Thatcher v. Walden, 5 Mart. N. S. 496. A contract, must be enforced, according to the law of the place where it was entered into. Saul v. Creditors, 5 Mart. N. S. 585. “ If an agreement,” says Judge Porter, “ be not binding where it was made, it cannot become so by being brought into this State.” Bellv. James, 6 Mart. N. S. 76. In contracts for loan, the law of the place of the contract governs in questions of usury, and consequently of the validity, although the security be a mortgage upon lands in another State. De Wolf v. Johnson, 10 Wheaton, 367, 383. In the common case of bills of exchange or notes, the rights and obligations of each party are fixed by the law of the place where the party 'draws, accepts, or endorses. Damages are due by one law, interest by another. One party is held by one species of notice, another by notice in some other form. Story on Notes, sec. 154 to 170. The general rule is, that every contract is governed as to its validity, nature, interpretation and effect, by the lex loci contractus. Ibid. sec. 155. If void and illegal where made, it is void every where. Ibid. sec. 156. When a contract is to be performed in another place, the general rule is that its validity is tested by the law of the place of performance. Ibid. sec. 165. But this exception can only apply when the foreign law only is regarded, or, in other words, where the whole subject of the contract is to be performed in another country. When a contract is to be performed partly in one country and partly in another, the law of each will operate on the respective portions of the contract. If the law ! of Mississippi operate to sanction the legal title of the trustee, the law of Louisiana, where the trust is to be accomplished, will investigate and decide upon the legality of its purposes. The rule and the exception are thus enforced, each in the case to which it properly applies. No court is bound to hold valid I a contract injurious to public rights, offending the morals, or contravening the I policy of the country, in which it presides. It is a consequence of the admisI sion of the lex loci, that contracts, void where made, are void every where. I So the personal capacity, or incapacity to contract, depends upon the law of I the domicil. The competency of a married woman to contract, is considered I to depend on the law of the place of marriage. 2 Kent, sec. 39, p. 458. The I prohibition, by the laws of Louisiana, of preferences by its eitizeus who be-1 come insolvent, renders such insolvents incapable' of making such contracts. I The rights of parties to an obligation, were settled by Judge Bullard, upon the I laws of New York, after a very learned and elaborate examination of the chaneery decisions, regarded as authority in that State. King v. Harman, 6 La. 607. So a contract of insurance was decided according to the law of the place where it was made. Skiff, v. La. Ins. Co., 6 Mart. N. S. 631. A bill of sale made in Kentucky, and valid there, is good here. Hall v. Mulhollan,' 7 La. 388. Where a testator in Georgia directed his slaves to be manumitted in five years after his death, and they were brought to Louisiana within the five years, it was held here, that the bequest was invalid, because prohibited by the laws of Georgia, although our laws contain no such prohibition. Mary v. Morris, 7 La. 188.
    But the defendants seok to bring this case within the exception to the rule. Admitting the force of the lex loci contractus, in ordinary cases, they say that, if a contract is to be performed in another country, then the laws of that country must alone decide upon its validity. Does this principle cover the case before the court. The principal and leading object of the deeds of trust, was to give a preference to the particular creditors over the plaintiffs. The deed had no reference to the laws of Mississippi. That the property was situated there was utterly immaterial. The trustee was expected to take possession and sell it, but these steps were merely preparatory to a division of the preceeds, between preferred creditors, which was the great object to be attained by the deed. As the domicil of the trustee was in New Orleans, it is here that he is primarily liable to be called upon, whether in or out of court, to execute his trust. It is true that he would be amenable to the laws of Mississippi, if he should happen to be there, but that would be a merely accidental jurisdiction ; and, he would be equally amenable to the laws of New York, if found there. It is impossible, therefore, to extend the laws of Mississippi, so far as to say that, merely because the lands of a debtor residing in this State are found in Mississippi, therefore, the owner, though residing here, .is not subject to our laws. If a contract, valid in itself, is to be wholly executed in another country, the law of that country governs its execution. So, if money be loaned here, payable in Mississippi, the law of Mississippi governs as te the demand, the payment, and the interest. But on the other hand, where a bond fide contract in Louisiana stipulated for payment in New York, but at a rate of interest exceeding that permitted in the latter State, the court here held the contract to be valid. A distinction was taken between the validity of the contract, and its mere performance. The nature and validity of the engagement were held to be tested by the law of the place where it was made, although its performance was to take place elsewhere. Depau v. Humphreys, 8 Mart. N. S. 34. This case was one very elaborately considered by Judge Martin, and the opinion is clearly correct. It would not cover a mere evasion of the law of New York, by a contract made here for the purpose of escaping the penalties of usury; but if bond fide, the law of the place of contract would be held to govern as to the validity. The principle is precisely the same adopted by this court in the case of the assignments by the Leavitts of their property in Louisiana. In deciding upon the validity of that contract, the laws of New York only were regarded, although the property was here, and the contract, if made here, would have been invalid. Why is not the converse of the proposition true ? A married woman in New York, is permitted to become security for the debt of her husband, or to mortgage her separate property for his debt. If such a mortgage upon the separate property of the New York wife were sought to be enforced here, would it be possible for our courts to extend the pro- J tection of our peculiar law over the wife, who had never been in this State ? Clearly not. The mortgage would be enforced. But if, on the other hand, a Louisiana wife, owning property in New York, were to mortgage that property here, to secure the debt of her husband, the contract could not be enforced any where. Being invalid and illegal here, where made, it would be void every where else. It is obvious that there is, and must be, a distinction between the validity of a contract in reference to property, and the property itself. The property is governed by the law of its situs. The jurisdiction of Louisiana does not extend to putting a litigant into possession of land in Mississippi; yet a contract made here by our own citizens, owning lands there, must derive its validity from our laws. The laws of insolvency are a3 much a part of the policy of our jurisprudence, as those governing the relations of husband and wife. They operate upon all our citizens, and they stamp with reprobation a fraudulent preference of one creditor over another.

      It is conceded that a trust deed is only a speceies of mortgage. The validity oí a mortgage was decided by the Supreme Court of the United States, with reference to the laws of the place where the mortgage was made, although the lands were in another State. Be Wolf v. Johnson, 10 Wheaton. The laws of interest and usury of that place, were taken as the test. In this case, the invalidity results from the laws of bankruptcy, but they equally prohibit and annul a mortgage intended to give unlawful preference. The principle, therefore, is the same, and the mortgage for the latter purpose, must be equally invalid. If a man claim the benefit of the Louisiana bankruptcy, he must surrender all his estate, no matter where it may lie. The prohibition of preferences would be idle, if a Louisiana debtor owning estates elsewhere could parcel them out to his creditors at'pleasure, and to the prejudice of those who receive nothing. Read,, Sons Sp Co. unquestionably violated the law of this State, and subjected themselves to imprisonment, when they attempted, by this deed, to class their creditors, and pay some to the exclusion of others. We hold, then, that the position of the land, can have no effect upon the validity of the contract. Its position is accidental; the contract is tested by the law of the place where made, and by the law to which the parties were subject.
    II. As to the power of the courts of Louisiana to afford a remedy: The remedy is completely within the power of the court. Upon a naked question of title and possession the court could not act, because its officers have no power beyond their respective bailiwicks; but, where a contract is in question, its validity to be determined, and its provisions to be examined and enforced, any court having jurisdiction over the person, has power over the subject. Upon a similar question, the Supreme Court of the United Stales, (Ch. J. Marshall,) says: “ In a case of fraud, of trust, or of contract, the jurisdiction of a court of Chancery is sustainable wherever the person be. found, although lands not within the jurisdiction may be affected by the decree.” Massie v. Watts, 6 Cranch, 160. It cannot be pretended that our courts have not jurisdiction as extensive as the courts of Chancery. Consequently, if a suit be brought here against a parson duly cited, there may be a decree against him compelling him to account for properties sold elsewhere, to perform a trust, to execute a contract, or prohibiting him from consummating a fraud. If a naked question of title were involved, “the Circuit Court of Kentucky would be without jurisdiction.” “But when the question changes its character, where the defendant in the original action is liable to the plaintiff, either in consequence of a contract or as trustee, or as the holder of a legal title acquired by any species of mala fides practiced on the plaintiff, the principles of equity give a court jurisdiction, wherever the person may be found.” Same casé, p. 158. The cases cited by this distinguished judge, strongly illustrate and support the principles here announced. They are so conclusive on the point that, we have not though it necessary to add one to those quoted by him. In the case of Penn v. Lord Baltimore, the Chancellor of England decreed a specific performance of a contract. respecting lands in America. In Arglasse v. Muschamp, 1 Vernon, 75, when an objection to the jurisdiction, precisely similar to that now relied on, was made, the Chancellor replied : “This is surely only a jest put upon the jurisdiction of the court, by the common lawyers; for when you go about to bind the lands and grant a sequestration to execute a decree, then they readily tell you that the authority of this court is only to regulate a man's conscience, and ought not to effectthe estate, but that this court must agere in personam only: and when, ns in this case, you prosecute the person for a fraud, they tell you that you must not intermeddle here, because the fraud, though committed here, concerns lands that lie in Ireland, which makes the jurisdiction local, and so wholly elude the jurisdiction of this court.” In the Earl of Kildare v. Sir Morrice Eustace and Fitzgerald, it was determined that, if the trustee live in England, the chancellor may enforce the trust, although the lands lie in Ireland. It would be impossible to find authorities more perfectly in point. The trustee, living here, may be compelled to execute a trust in reference to lands in Mississippi. If that trust be, in its inception a fraud upon our laws, may not the court prohibit its execution, and divert the funds in the hands of the trustee to a lawful purpose 1

      Mount, for the garnishee.
    The judgment of the court below is correct and should be affirmed, because, if, as it is admitted, a debtor may, by the laws of Mississippi, prefer one or more creditors to the rest, by executing a conveyance of his propertv.to a trustee for that purpose, and the laws of that State havs vested the title to the property conveyed in the trustee in the two deeds, it is clear that the courts of Louisiana could not divest that title; for the title to realty can only be acquired or lostby the lex locirei sitce. Story, Conf. of Laws, sec. 364, 365, 431. 7 Cranch, 115. 6 Wheaton, 577. The title of realty is exclusively subject to the lex loci rei sitce, and will not pass by will, unless it conforms to that law. 10 Wheaton, 192. Nor would it pass by deed, unless in case of such conformation. By reference to these deeds it appears that the parties in executing them had reference to the laws of the State of Mississippi, where they were to be operative, l'f,. by the terms of the contract, it appears that it is to be executed in another country, or that the parties had reference to the laws of another country, the place in which it is made bcomes immaterial, and it is to be governed by the laws of the country in which it is to be performed. 17 Johns. 511. 20 Johns. 229. Holmes v. Remsen, 4 Johns. Ch. R. 486, 487. So it is held that a contract void by. the law of the place where made, is valid, if good by the law of the place of payment. Story Conf. of Laws, sec. 305. 20 Martin R. 22, 23, 24, 30. 10-Wheaton 367. 20 Johns. R. 102. 2 Simon R. 194. 2Burr. 1076. 2Kent, Com.-39th Lecture, 459.
    A debtor, in failing circumstances, may prefer one creditor to another. 2 Johns. C, R, 306, 308, and authorities cited in Marbury v. Brooks, 5 Con. R. S. C. U. S. 345,434. 6. Con. R. S. O. U. S. 223. 7 Peters R. 608. Assignments to secure existing claims and engagements, as well as for future advances and responsibilities, valid. 2 Johns. C. R. 306. ib. 283. Where a trust is created for the benefit of a third person, without his knowledge at the time, he may afterwards affirm the trust and enforce its performance. Moses v. Murgatroyd, 1 Johns. C. R. 119. 3. Johns. O. R. 261. 4 J. C. R. 136. The fact that the grantor retains possession of property which he has conveyed is not fraudulent, where the deed authorizes it. 3 Cranch, 73; 1 Cond. Rep. 458. Bogart v. Gardley, 4 Sm. and Mar. 302. 2. Kent, 494, 530, notes. An assignment by a debtor, to trustees, for the benefit of all his creditors, is valid, without the previous assent of the creditors. 4 J. C. R. 522. 11 Wheaton, 7-S. If, as it is assumed, the deeds being made in Louisiana, are void by its laws, but are valid by the laws of Mississippi, so as to vest the title to the proparty in the trustee, then the trustee takes the title burtliened with the trusts declared therein, and this court cannot change or alter the deeds, nor give any extraterritorial- effect to that decree. If the deeds are invalid, then the trustee'is ousted and divested of title, and has nothing wherewith to be charged. If they are valid, then the creditors who have assented and claim the benefit of the deeds, have an unquestionable right to have the trusts executed, upon a proper bill filed in the Chancery Court of Mississippi; and if the trustee were to refuse to carry out and effect the object of the trust-deeds, upon a proper showing to that effect, the Court of Chancery would appoint a new trustee.

      Prentiss, on the same side.
   The judgment of the court was pronounced by

Eustis, C. J.

A fieri facias having been issued on a judgment obtained by the plaintiffs against the defendants, in November, 1845, process of garnishment was taken out against Wm. S. Mount and Co. garnishees, in order to subject the effects of the defendants in their hands to the writ. Wm. S. Mount answered the interrogatories propounded, and acknowledged that certain property had been conveyed to him, situated in the State of Mississippi, in trust for the benefit of certain creditors. On these answers of the garnishee the plaintiffs filed their petition to set aside'and annul the conveyances made by the defendants to the garnishee, on the ground of their having been made in fraud of the rights of the plaintiffs as creditors, and in violation of our Jaws. On this petition issue was joined by the garnishee; there was judgment in his favor, and the plaintiffs have appealed.

We have had this case along time under advisement, and, after a thorough investigation of the subject, we are forced to dissent from the conclusions of the learned judge before whom the cause was tried. The argument at bar has been confined to the validity of two deeds of trust, and the power of the court over them, under the case as presented. There does not,appear to bo any dispute as’to the facts of the caso.

The deeds were executed in the city of New Orleans, on the 10th of May, 1845. The first purports to be made by Thomas J. Read of the city of Louisville, Kentucky, and John A. Read of New Orleans, on the first part, certain creditors of the firms of Thomas J. Read and Son of Louisville, and Thomas J. Read and Son and Company of New Orleans, on the second part, and William S. Mount of the third part. It conveys to Mount a plantation and slaves in Washington county, Mississippi, in trust for the benefit of the creditors mentioned. The second deed of trust purports to be made by Thomas J. Read, John A. Read, and Robert Y. Black, styling themselves merchants, commercial copartners, trading under the firm of Thomas J. Read, Son and Company, in the city of New Orleans ; it conveys a lot of ground in Yazoo City, Mississippi, is of the same date, for the same.purposes, and on the same trusts, as the first. They are both signed by the parties of the first part, and by Mount, the trustee, and were afterwards confirmed by the preferred creditors. The trustee was not authorized to take possession ; but the grantors were to be permitted to retain it, until the 1st of January, 1847, when the sale of the property was to take place for cash, for the payment of ¡the debts which should then be unsatisfied, at the request of the creditors or any one of them.

This cause was tried in February, 1847, subsequently to the -time at which he was empowered to make the sales, and the record affords no evidence whether they have beemmade or not. The prayer of'the petition is that, the deeds of trust be annulled, and the garnishee be decreed to be bound to account to the petitioners as seizing.creditors, for the property to himiilegally.conveyed. The district judge considered the case as confined to these issues, and we think correctly.

In relation to annulling the deeds of trust, the judge was of opinion that, the situation of the real property out of the jurisdiction ,of the State, was an obstacle to the court’s rendering any judgment, where.the objectwas to recover it. We think the case referred to by the counsel for the plaintiffs, establishes the principle that, where a court is called upon to enforce a right, it may avail itself of its jurisdiction over the person todo justice relative to a subject matter beyond.its territorial jurisdiction, though lands be effected by the decree. The contract made here between the defendants and Mount is the-subject matter upon which the court is called upon to act. Its validity is drawn in question. The responsibility of the trustee to other creditors than those provided for, depends upon its legality. Even if the judgment to be rendered should not be efficient in the State where the properly is situated, that fact, were it ascertained, we think would not be sufficient to authorize the court to withhold its action upon the contract.

We think the determination of this case would be necessarily effected by the fact of the sales having .been made by the trustee under the deeds of trust. In assuming them to have been made, we might do him injustice ; and, as we think the District Court erred in rendering an absolute judgment against the plaintiffs, we prefer to remand the .cause for a new trial, without being committed as to any future course, to closing it by a final judgment on a state of facts presented by the record, which may not be consistent with their present state, nor subject to the same principles.

The judgment of the District Court is, therefore, reversed, and the case remanded for a new trial; the appellee paying the costs of this appeal.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    Succession of Whitehead.
    An administrator will not be liable personally for the costs of a probate sale made at his instance to effect a partition, though subsequently set aside for informalities, where the proceedings to effect it were conducted by counsel, contradictorily with the heirs, and the sale was made under a decree of the court. Having proceeded in good faith, and used the precautions which prudence suggested, the error cannot be imputed to negligence, nor render him personally answerable.
    Services rendered by counsel, necessary for the settlement and partition oí a succession, enuring to the benefit of all the parties in interest, mast be borne by the succession.
    Where an -administrator, in the exorcise of a sound discretion, deems it necessary for the security of the property under his administration thatitshould .be insured, it is his duty to ensure it, and the costs must be borne by the succession.
    Where one of several co-proprietors of a lot of ground pays fcr the whole cost of pavements made on the requirement of the city authorities, and for which the property was bound and the co-proprietor individually liable, having an interest in .discharging the debt he will be ,subrogated to .the rights of .the paver, and may recover irom his co-proprietors their proportions.
    APPEAL from the Second District Court of New Orleans, Canon, J.

      Benjamin and Micou, for the administrator.

      JEIwyn, for the appellants.
   The judgment of the .court was pronounced by

King, J.

Charlotte Whitehead died leaving as her only heirs three children, to wit, Ellen C. Whitehead, George Whitehead and Harriet Whitehead, wife ,of Phelps. Pier estate consisted chiefly of a house and lot in the city of New Orleans. In 1832’, Ellen C. Whitehead entered into a contract with Phelps, J'or the construction of a brick kitchen upon the property held by her in common with her co-heirs, and after the-completion of the work gave her notes for the price ($2097), secured by a mortgage on the property. Phelps transferred these notes, with a subrogation to all his rights, to T. R. Hyde, who made ineffectual efforts to collect the debt. The undivided interest of Ellen in the succession of her mother was sold to satisfy the claim of a prior mortgage creditor, and purchased by Maher, who sold it to Hyde. Upon acquiring .this interest, Hyde .caused the administrator who was then acting to be removed, and the administration to be conferred upon himself. He obtained an order for a partition, and a sale as the means of effecting it. At the inventory .taken of the property he caused separate appraisements to be made, of the lots with the original building, and of the kitchen which had been erected by Ellen WMlekead. The latter was estimated at $1,200. A sale was made of the entire property ; but .the purchaser refused to comply with the .terms of .the .adjudication, on the ground that no title had been conferred, in consequence of .alleged informalities in the proceedings. The objections were held to be valid, and the sale was set aside. A second sale w.as subsequently made, the proceeds of which compose the entire funds for distribution. The administrator presented an-account.of his administration, which Mrs. Phelps and George Whitehead opposed on various grounds, all of which, with one exception, were overruled in the court below ; .and the opponents have appealed. Those oppositions only will be considered, which have been insisted on in this court.

1. It is contended first, that the expenses incurred in making the first sale should be at the charge of the administrator, who, it is alleged, failed to cause .the formalities to be fulfilled requisite for giving validity to the sale. The probate proceedings were conducted by counsel employed for that purpose, contradictorily with the heirs, and the sale was made under the authority of a decree of the court. The administrator proceeded in good faith, and used the precautions which prudence suggested to effect a valid sale. The error into which he fell, if indeed it be one, cannot, under these circumstances be imputed to negligence, and render him personally answerable for expenditures incurred. We think that the judge did not err in decreeing'these'charges to be supported by the succession.

2. The opponents complain that, a credit has been allowed to the administrator for a larger amount than he paid to the auctioneer as commissions. There was an error in this respect in the judgment as originally rendered, which was corrected by the judge on a motion for anew .trial.

3. The fees paid to counsel are opposed, on the ground that they were for services rendered at the request and for the exclusive benefit of the administrator. There is no complaint that the sum paid was unreasonable. The record furnishes evidence that the services rendered by the counsel were necessary, for the final settlement and partition of the succession. They consequently enured to the benefit of all the parties in.interest, and must be borne by the succession. Friend v. Graham’s administrator, 10 La. 440.

4. The administrator, who is the owner of the share of EUen C. Whitehead, and of her claim for the price of the kitchen, credits himself in the account rendered with $1,200, the amount of the separate appraisement of that building. This item was opposed, on the ground that the opponents have-received no benefit from this addition. Two of the witnesses estimate the kitchen at from $500 to $1000. But the appraisers called for the express purpose of fixing its value, estimate it at $1,200. The building contract shows the original cost to have been much greater. At the sale, the lots, with the buildings as they originally stood, produced their separate value, and a further sum equal to the separate appraisement of the kitchen; showing conclusively the additional value which the latter gave to the property. Upon no principle of justice can the opponents claim to enrich themselves by this outlay. The opposition to this item was, in our opinion, properly overruled.

5. The succession is debited with an amount paid for premiums of insurance by the administrator during the years of his administration, and this item is also opposed. We think that it was properly allowed. If the administrator-, in the exercise of a sound discretion, deemed this precaution necessary for the security of the property under his administration, it was his duty to cause it to be insured, and the charges for that purpose must be borne by the succession.

6. Mrs. Phelps opposes the account on the further ground that, she has not been recognized as a creditor for $397, alleged to have been paid by her for paving. She entered into a contract for the work, in which it was stipulated that, one-third of the price was to be paid by Ephraim Whitehead, and the remaining two-thirds were to be paid by herself. There being three heirs she was bound for $199 11. The receipts show that she has paid $316, being an excess of $116 89 over -the amount, for which", as one of the co-proprietors, she was liable. But it is contended that she has forfeited her right to claim to be reimbursed this expenditure, because the payment was voluntarily made by her, without calling upon Hyde, who was a co-proprietor, for contribution, and because no separate appraisement was made of the lot and banquette, by which ■an apportionment to her of a share of the proceeds can b.e made. It is con-. ceded that the paving was done at the requisition of the city authorities. The work therefore became indispensable, and it is not pretended that the price paid was excessive. Not only were the co-proprietors individually liable for the cost, in proportion to their respective interests, but the property itself was also bound. If the work had not been done by the owners, the city authorities would have caused it to be done .at the expense of the proprietors. The property when sold produced a sum more than sufficient to pay all the claims to which it was subjoct. The question presented is not one of conflicting privileges, nor of improvements made upon the property of another, but merely of the payment of a debt due by another. No separate appraisement, therefore, of the pavement and lot became necessary. The opponent was bound with her co-proprietors for the .debt, and had an Interest in discharging it. By her payment she became subrogated to the paver’s rights, and presents both a legal and an equitable claim to be reimbursed. C. C. art. 2157. The judge, in our opinion, erred in rejecting the whole of her claim, and should have awarded to her the excess which she paid over the amount for which she was liable as an heir.

It is, therefore, ordered, that so much of the judgment of the District Court as dismissed the .claim of Harriet Phelps for paving, be reversed. It is further ordered that the said, Harriet Phelps be placed o,n the account rendered by T. R. Hyde, .administrator, .as a creditor for the sum.of $116 89, to be paid in due course of administration; and that, in other respects, said judgment be affirmed; the appellee paying the.costs of this appeal.


author: Kins, J.

text:
    The State v. Lewis.
    7-of the sfcafc. G April, 1843, authorizing juries, in cases in which capital punishment or imprisonment at hard labor for life is inflicted for any crime committed by a slave, to pronounce sentence of death,imprisonment at hard labor for life, or imprisonment for a shorter term, was not repealed by .the stat. of 1 June, 1846.
    Prior laws will not be presumed to have been repealed by subsequent laws, from the mere fact that the latter contain provisions different from the former. A repeal wiil be implied only where the last statute contains provisions contrary to, or irreconcileable withuthose of prior laws. C. C. 23.
    APPEAL from tho District Court of Jefferson, Clarke, S.

      Perin, District Attorney, for the State.

      Jour-dan, for the appellant.
   The judgment of the .court was pronounced by

Kins, J.

The slave, Lewis, was convicted of murder by a court organized «nder the act of 1846, (Acts, p. 114,) and sentenced to imprisonment at hard labor in the penitentiary for twenty years. After an ineffectual effort to obtain .a new trial, an application was made to the district judge for a habeas corpus, on the ground that the prisoner was detained in virtue of an illegal sentence. The writ was refused, and the defendant has appealed.

It is contended that the 7th section of the act of 1843, (Acts, p. 92,) which authorizes the jury, in cases where capital punishment or imprisonment at hard labor for life is inflicted for any crime committed by a slave, to pronounce sentence of death, imprisonment at hard labor for life, or for n shorter term in prison, <fcc., lias been repealed by the act of 1846, (Acts, p. 114,) under which the tribunal in the present instance was organized, and that the only discretion left to juries under the latter act is, upon conviction, to pronounce sentence of death, or to condemn the slave to suffer corporeal punishment. There has been no express repeal of the act of 1843. The implied repeal, it is contended, results, first, from creating a tribunal differently constituted for the trial of crimes committed by slaves ; secondly, from specifying two descriptions of punishment only, which the newly created tribunals may decree upon a conviction, to wit, death or corporeal punishment. The omission, in the act of 1846, to enumerate other punishments which juries were authorized By the first act to decree, it is said is a restriction imposed upon their powers, and- a denial to them of authority to decree other punishments than those specified in the act. As there has been no express repeal of the act of 1843, a repeal is only implied in so far as the last act contains provisions contrary to, or irreconciliable with, those of the first. C. C. art. 23. The repeal of prior laws by those subsequently enacted is nob'to be presumed, although the latter may contain provisions different from the former. To produce the effect of a repeal, in the absence of a positive enactment, the provisions of the respective laws must be clearly repugnant. The silence ef the legislature in relation to powers conferred by the first act, is-not to be construed into an intention to abrogate them. C. C. art. 23. 1 Toul. nos. 154, 155, 156. 5 Mart. N. S. 575. 7 La. 166.

There can be no doubt that most of the provisions of the act of 1843, particularly those creating tribunals for the trial of offences committed by slaves and providing for the mode of proceeding before them, have been impliedly repealed- by subsequent laws. But as regards the 7th section of that statute, it stands in conflict with no provisions of the act of 1846. The former gives a wider discretion to the jury than the latter in relation to the punishments to be awarded, but the two may well stand together; and it is the duty of courts to give effect to both. Nor does the spirit of our recent legislation authorize the conclusion that th©1 legislature intended to deprive the jury of the right to mitigate the- punishment in capital cases, and to substitute imprisonment at hard labor, or corporeal punishment at their discretion, for death, in the event of conviction. An act of 1846, (Acts, p. 118), approved only two days previous to that under consideration, provides, “ that in all cases were the punishment denounced by law is death, it shall- be lawful for t&' jury to qualify their verdict by adding thereto, “without capital punishment;” and when verdicts so qualified are returned, the accused shall only be sentenced to hard labor for life, in the penitentiary. This legislation indicates a growing opinion opposed to capita] punishment, except in extreme cases, leaving it to the jury to determine in what cases it shall be decreed ; and repels the conclusion that there has been any intention, to deprive juries empannelled for the trial- of slaves of the power of substituting other punishment for that of death. A power, the exercise of which is so important to the accused, cannot be held to have been repealed, without an express repealing clause, or provisions in the last law, so clearly repugnant to those of the first, as to leave no reasonable doubt of the intention of the legislature. No such repugnancy presents itself.

Judgment affirmed.


author: Slidell, 3.

text:
    Frosten et al. v. Legendre.
    Where, after the dissolution of the community by the death of one of the spouses, the survivor, as tutrix of a daughter, becomes a party to a marriage contract of the latter, in which itis declared that the daughter is entitled to a certain portion of land belonging to the community, and the daughter subsequently mortgages that portion of the land to a third person, referring in the act to the land as that described in the marriage contract, the surviving wife will be estopped from questioning the title of the daughter to that portion of the land. Per Curiam-. Even if she made an unintentional mistake as to the quantity, her innocence will not protect her, for the rule is that, where one of two innocent persons must suffer, he shall suffer who by his act occasioned the confidence and loss.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Michel and Burns, for the appellants.

      Breaux and Collens, for the defendant.
   The judgment of the court was pronounced by

Slidell, 3.

The plaintiffs arrested by injunction, the sale of the undivided third of certain real estate, mortgaged by Charlotte L. Fulmer to Legendre, upon the allegation that she was only the owner of one-sixth of the property ; that it was community property, acquired by George Fulmer, who left at his death the plaintiflj now Mrs. Kammer, his widow in community, and three children, Charlotte, Frederic, and George; so that at his death the property belonged, one-half to his widow, and one-sixth each to his children; and consequently, that Charlotte could only mortgage to Legeudre an interest of one-sixth.

Charlotte married Chase, and in the marriage contract it was declared that, as heir of George Fulmer, she was the owner of one undivided third of the land in question. The mother, the present plaintiff, was a party to this deed, acting as her natural tutrix. When the mortgage to Legendre was afterwards executed by Charlotte, she mortgaged one undivided third of the land, and described it as “ the same which is set forth in her marriage contract, as her separate property.”

The participation of the mother in the marriage contract was, as regard» third persons, a solemn recognition, on her part, that her daughter was the owner of one-third of the laud; and upon the faith of this representation, we must consider Legendre as having acted, in as much as the marriage contract i» expressly referred to in the mortgage. She is therefore in equity estopped from now questioning his right of mortgage upon one-third. Even if she made an unintentional mistake, her innocence cannot protect her, for the rule is that, where one of two innocent persons must suffer, he shall suffer who by his own act occasioned the confidence and loss. See Richardson v. Hyams, 1 An. 288. 1 Story’s Equity, 377.

It is to be observed that, Mrs. Chase may be recognized as the owner of an undivided third without affecting the share of the two minors, Frederic and George. The loss must fall on the widow’s share.

Judgment affirmed-


author: Slidell, J.

text:
    Ballister et al. v. Hamilton.
    Mere knowledge that there is a principal will not destroy the right of a party dealing with an agent, and charging him with the balance due on the transaction, to look to the principal when afterwards discovered, where the state of the accounts between the principal and agent is not such as to make it a hardship that the former should be held liable.
    Where the agreement between the parties to a contract is silent as to the rate of interest to be paid on any balance that may be due, the rate must be that allowed by the laws of the place where such balance was payable.
    Where an advance is obtained in this State, from an agent, residing here, of a foreign principal, on merchandize tobe shipped to and sold by the latter abroad, the allowance of interest on any balance due to the fol'eign principal in consequence of the proceeds of tho sale falling short of the advances, must be determined by tbe-law of the domicil of the principal where the merchandize was sold.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Bradford, for the plaintiffs.

      Vason, for the appellant,
    contended that the allowance of interest should be determined by the laws of the Slate, which was the place of the contract, citing Story’s Conf. Laws, ss. 284, 287. 3 Wheaton 101. 10 Ibid. 367. 1 La. 249, 254,528. Story on Bills, p. 598.
   The judgment of the court was pronounced by

Slidell, J.

In December, 1843, Oakford obtained from S. and J. P. Whitney, the agents at New Orleans, of the plaintifis, merchants of Boston, an advance of $3,340, on seventy-three bales of cotton’belonging to the defendant, For the sum advanced S.and J. P. Whitney drew their bills on the plaintiffs at sixty days’ sight, which bills were accepted and paid by plaintiffs at their maturity, 11 March, 1844. The cotton, pursuant to agreement, was shipped by and J. P. Whitney to plaintiffs, for sale on Oakford's account. It was sold by them on the 14 October, 1844, and on the 15 October, 1844, the plaintiffs made out their account-current of the shipment, in which the amount of the drafts is charged at the date of their maturity, interest is charged on that amount at six percent from that date, the nett proceeds of sale of the cotton are credited on the day of sale, and a balance is thus produced as due 14 October, 1844, of ®1,269 26 ; for which, with interest from that date, at six per cent according to the law of Massachusetts, this suit is brought.

Although the transaction took place in Oakford's name, we have no doubt as to the liability of Hamilton. Oakford was his agent, and made the shipments at his request. At the time of the shipment Oakford mentioned to the Whitneys that he was not the owner of the cotton; that there was a responsible ■party, whose name he would give, in case there was any reclamation on the cotton. As soon as Oakford received the plaintiffs’ account from the Whitneys, lie gave the name of Hamilton, as the owner of the consignment, and the party hound to pay. Mere knowledge that there is a principal, does not destroy the right of a party dealing with the agent to look to the principal when afterwards discovered. By debiting Oakford with the balance of account of the shipment, the plaintiffs were not precluded from resorting afterwards to Hamilton, the undisclosed principal. It is consistent with justice and the general rules of the law of agency, that the creditor should.have his remedy against the principal. How far this doctrino is to be qualified in cases where tho stats of accounts between the principal and agent Would make it a hardship that the principal should be called upon, it is unnecessary to consider, no such equity having been shown in the present case.

But the point most seriously pressed in this Cause, and certainly a Very interesting one, is, whether the defendant is to pay interest on the balance of the account at six per cent, which is the Massachusetts rate, Or at the Louisiana rate of five ? This turns upon the question, where the indebtedness is to be considered as payable; and, in its solution, the parties have given us no express guide. Their agreement was silent upon that point, and We must endeavor to gather their intentions from the nature of the transactions. It is clear that the first resort of the plaintiffs was to be the cotton, and that resort was to be exercised in Boston, because it was shipped for the express purpose of being there sold. Then, so far as the proceeds would go, the contract of the parties was that payment should be made in Boston. Again, although the contract is made in Louisiana, the duty of selling, the duty of the plaintiffs as factors of the defendant, was to be performed in Massachusetts. An incident of the duty thus to be performed is, to pay the defendant, if there should be an excess of proceeds over advances. Suppese there had been a surplus in this case, instead of a deficit. Boston being the place where the consignee’s duty of selling the merchandize was to be performed, it seems just to consider the incidents of that duty as regulated by the laws of that place. Becoming there a debtor for the supposed surplus, the interest of Massachusetts would seem the proper standard, if the consignee failed to pay. See the case of Consequa v. Fanning, 17 Johns. 511. But if the plaintiffs would be chargeable with Massachusetts interest on a surplus, a reciprocal liability should rest upon the defendant in case of deficit; otherwise, as was forcibly put by the court below, we should be adopting the singular rule of two kinds of interest in an account-current, without the agreement of the parties.

We are aware that this view conflicts with the opinion of Judge Story, in the case of Grant v. Healy, 2 Law Reporter; but we feel a strong conviction that the rule we have followed accords with the general mercantile opinion, which, in a matter of this sort, is entitled to very great weight.

Under the admissions made at the trial, we think there was no error in allowing the interest from the time the balance was due and payable.

Judgment affirmed.


author: Xing, J.

text:
    Marsh et al. v. Small et al.
    Where a check on a banker is received in payment during banking hours of the day on which it was drawn, in the usual course of business, and under circumstances not calculated to excite suspicion, and no negligence is shown from which bad faith can be inferred, the holder may recover the amount against the drawer, though the check was lost by, or stolen from, the real owner.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      T. R. Wolfe, for the plaintiffs,
    cites Cbitty on Bills, ed. 1839, p. 277, and notes. Story on Bills, sec. 207 and notes. Story on Notes, sec. 137, and notes.

      JDufour, for the appellants,
    cited Chitty on Bills, p. 278 to 284. 13 La. 216, 217, contending that plaintiffs, by taking a check from a person of whom they knew nothing, and about whom they made no enquiry, were guilty of negligenco.
   The judgment of the court was prouounced by

Xing, J.

This suit is instituted upon a check, drawn by the defendants, payable to the bearer- The defence is that, the check was lost, and received by the plaintiffs incautiously, not in the usual course of trade, and under circumstances of suspicion which should have excited enquiry. A judgment was rendered in favor of the plaintiffs in the court below, and the defendants have appealed.

It appears that the bearer of the check lost it about II o’clock in the morning, and immediately stopped its payment at the banking house on which it was drawn, and gave public notice of the loss. At about 2 o’clock of the same day, a stranger presented himself at the commercial house of the plaintiffs, purchased a lot of rosin for about $¡13, and offered payment in western country bills, which were refused. The stranger then produced the check in question, saying that it was all the money he had. It was received, and, after deducting the price of the rosin, $¡72 80 in cash, and a check for $¡270, were returned to the stranger. Upon presenting the check now in suit, payment was refused by the banker. The plaintiffs thereupon stopped the.payment of the check which they had given, warned the public by notices inserted in a newspaper not to receive it, and took possession of the rosin. The check given by the plaintiffs had not been paid, nor had it reappeared up to the date of the trial in the lower court.

The only question presented is, whether the plaintiffs took the check under circumstances which precluded a recovery. It was received by them in the usual course of their business, and .in payment of a debt contracted at the time. The circumstances under which it was offered were not such as to excite suspicion, nor put the plaintiffs on enquiry whether the person presenting it was the bona fide holder. The receipt of checks drawn by others than the holders in payment of merchandize, appears to be of daily occurrence. The judge states that one of the witnesses deposed that he had received as many as thirty such in one day. If this .be .time, they constitute a large proportion of '¡the circulating medium used .in'the daily trade of the city. When this universal usage is considered, the offer of such a check would not of itself necessarily excite the enquiry of tho most prudent and cautious. The further fact that bills of western banks were first offered in payment, and that the check was only offered as an alternative when the bills were refused, was well calculated .to disarm suspicion. No negligence has been disclosed from which bad faith can be inferred; and, in such cases the holder is to be protected, although the note or check may have been lost or stolen. Story on Promissory Notes, .ss. 19.7, 382, and the authorities there cited.

In the court below, the parties consented that the equity of the case should be gone into, and the judge rendered a decree in favor of the plaintiffs for the amount of the check, to be satisfied by the defendants reimbursing to the plaintiffs the amount actually paid by them, nnd indemnifying them against the appearance of the check for $270, which fully meets .the justice of .the case.

Judgment affirmed.


author: SiiDEM,, J.

text:
    Wilcox et al. v. Beal et al.
    The object of the rule under which, in every case of a presentment of a hill for acceptance, the drawee is entitled, if he require it, to twenty-four lionrs to consider wether he will accept, is not to enable him to enquire as to the holder's title, but to ascertain whether he have effects of the drawer, or the prospect of them, or other reason for honoring the bill; and the acceptance of a bill at once, without taking advantage of this delay, is not of itself evidence of negligence orincautionsness, in not enquiring as to the title of the holder."
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Lockett and Goold, for the appellants.

      Flower took the bill under suspicious circumstances, and not in the usual course of trade. When the maker of a note shows it got into circulation by fraud, th& onus is on the holder. 6 Wendell, 615. 12 lb. 484. 13 lb. 605. The holder must be such bona fide, have taken the paper innocently in the usual course of trade, and need not account for his possession unless suspicion be raised. 3 Kent, 80. Miller v. Race, 1 Burr, 452. Grant and Vaughan, 3 Burr, 1516. Peacock v. Rhodes, 2 Douglas, 613. 2 Camp, N. P. 5. 13 Fast, 135. Thurston v. McKown, Mass. To preclude equities, the note must be transferred in the usual course .of business, and without circumstances calculated to put a prudent person on his guard. Snow v. Peacock, 2 Carr, and Payne ; 13 Eng. Com. Law. Lapice ■v. Clifton, 17 La. 157. The claimant is not bound to show by what means he lost the bill, if it was taken under suspicious circumstances, although taken for value. Down v. Hailing, 2 Carr, and Payne, 11; 12 Eng. Com. Law Rep. If the bill be taken under circumstances calculated to put a prudent person ou his guard, although taken in the usual course of trade, no title is conferred. Slater v. West, 3 Carr, and Payne; 14 Eng. Com. Law. Rothschild v. Carney, 17 Eng. Com. Law, 403. Early v. Brockford, 25 Eng. Com. Law, 1186. Strange v. Wigney, 19 Eng. Com. Law, 202. The expression, “ usual course of trade,” means that, the party shall take the .bill in his business, and as a payment .of a debt contracted at the time. Coddington v. Bay, 20 John. 651. Payne v. Cutler, 13 Wendell, 606. Stalker v. McDonald, 6 Hill, 93. Rosav. Brotherson, 10 Wendell, 86. This rule is well settled. Nicholson v. Patton, 13 La. 217. The late Supreme Court adopted the rule laid down m Gill v. Cubilt, 3 Barn, .and Cress, 466, and held that, in transactions like this, parties who buy negotiable paper with a view to profit, without making due enquiries as to the title of the seller, and merely because there are good names on the paper, take the risk of its being stolen. The doctrine was again recognized in Lapice v. Cliffton, 17 La, 158. See also Vairin v. Hobson, 8 La. 52. Dupeux v. Troxler, 8 La. 95. Story on,Bills, § 194. Louisiaaa State Bank v. New Orleans Navigation Company, ante p. 294. Lanfear v. Blossman, 1 An. 156. In the case of Little v. Boutin, it was held that, negotiable instruments endorsed in blank, when stolen, were subject to the rules of law governing stolen property, as found in the Louisiana Code.
    Tested by these principles, the plaintiffs ease is put beyond controversy. If the case be taken out of the commercial law, then the bill of exchange, being like any other thing, the sale of it to Flower, was null. He did not buy it at auction; nor did he buy it of a person in the habit of selling such things. The language of a recent case, clearly defines the position of Flower with reference to the broker June. “If, on the hypothesis of the defendants, Richards had no principal, he had no possession but that based on Iraud; and being publicly known as a broker, every one traded with him for the article at his peril, unless he put himself in communication with its owner. Levericliv. Richards, 1 An. R. 357.
    Having shown that Flower took no title to the bill, the liability of Beal, its acceptor, remains to be considered. Two things must concur to charge him ; 1. The fact that Flower had no title. 2. That Beal had due notice of this fact. The first is established. As to the second, the evidence shows, not only that he was notified as soon as the loss or theft was known to plaintiff's, but that an injunction was issued commanding him not to pay the biJJ.

      After notiee of the bill’s being lost, the drawer pays it at his peril. See note to Chitty on Bills, 528.
    The defendants complain that the bill was improperly remitted. The mode of remittance is conclusively shown to1 have been the usual one at the time.

      Grymes, on the same side.

      Eggleston, for the defendant Beal.

    Story says that, the payment of a lost or stolen note by the maker, which has been endorsed in blank, to a Iona fide holder, for a valuable consideration, will discharge him. Story on Promissory Notes, secs. 381, 332, 383, 384, 137, 19G, 197, note (1). He asserts the same doctrine in his work on Bills of Exchange, secs. 415, 416. 417, 193, 194. He says: “ For a considerable length of time, the doctrine'prevailed that, if the holder took the bill under suspicious circumstances, or without due caution or inquiry, although he gave value for it, yet he was not to be deemed a holder bond fide, without notice.” But this doctrine has been since overruled and abandoned, on the ground of its inconvenience and obstruction to the free circulation and negotiation of exchange and other transferrable paper. Note 3 to sec. 194.

      Wray, for the defendant, Flower.

    The mode of transmitting the bill showed gross negligence on the part of plaintiffs, and they should make out a very strong case to entitle them to recover. 3 Bingham, 444. Flower, having given value for the bill, cannot be made liable though the bill were lost, or stolen. Story on Bills, 193. But he was a holder in good faith. Plaintiffs must show notice, or such gross negligence as will amount to fraud. Story on Bills, s. 194. 10 Adolph, and Ellis, 784. Flower took the bill in the usual course of business.

      Watts, on the same side.
   The judgment of the court was pronounced by

SiiDEM,, J.

In November, 1838, Huntington, the agent at Vicksburg of Wilcox, Anderson Sf Co., of New Orleans, forwarded a letter addressed to the plaintiffs by a steamboat going to New Orleans. This mode of transmission was the one usually adopted at that time, the mail being very irregular. The letter contained the first of a bill of exchange for $1,500, dated at Vicksburg, November 23, 1838, payable at sixty days after date, drawn by Randolph upon Beal, to the order of Huntington. The bill was endorsed by Huntington, not specially, but in blank. It appears that, at that time, there was great carelessness about letters thus sent. They were thrown on the table of the steamboat upon the boat’s arrival, with the exception of money-letters, which were given in charge to the clerk. Letters thus sent sometimes disappeared, which was the case with the letter in question ; for the plaintiff never received it, but afterwards received the second of the bill. On the 28th November, the first of the set was presented at Beal's counting house, and accepted by his clerk. On the same day Flower bought the bill at a discount of $35, from one June ; and, on the 24th December, 1838, got it discounted at the Bank of Louisiana, to which bank Beal paid it at maturity. On the 29th November, the plaintiffs presented the second of the bill for acceptance, which Beal refused on account of the prior acceptance. On the 21st January, 1839, the plaintiffs brought the present suit against Beal and Flower. It was charged that the bill had been stolen from the steamboat, that Beal accepted it Without due caution and improvidently, and that it was discounted by Flower without due caution, or proper enquiry, and undercircumstances which could notvest the property of the bill in him. Flower was enjoined against negotiating, and Beal against paying, the bill. Judgment was asked decreeing the bill to bp paid to the plaintiffs, and for general relief.

The cause was not tried until the year 1847, and, as an’interval of eight years had elapsed, it is not surprizing that there is some uncertainty as to the person by whom the lost, or stolen, bill was presented for acceptance. The clerk of Real, who accepted it under a power of attorney, says it was a man named June. Another clerk says it was not June, but an individual unknown to him, of perfectly genteel appearance. The argument of the plaintiffs' counsel assumed that June was the person who made the presentment; and was directed mainly to the points that he was a person of bad character, and also that the promptness of the acceptance was unusual. It is very clearly shown that June became a man of intemperate habits; but he had borne, for several years previously, a good character, and the testimony does not satisfy us that he had become a drunkard, and lost his reputation, at the time of the transaction. It was also urged that the nature of June’s business made a presentment by him unusual, and should have excited the suspicions of .the acceptor. It seems he was what the witnesses term a street broker; by which they explain themselves as meaning, one who goes about and sells bills and notes for a commission. We certainly cannot consider this as a circumstance throwing any imputation upon the good faith or even the prudence of the acceptor, especially when considered in connection with the business standing and social position of June, who had occupied an office in the commercial part of the town for a considerable time, doing a business which required the services of two clerks, and enjoying a good mercantile credit. We may also remark that, in a country where .tlie distribution of labor is so imperfect as with us, and where people are in the habit of dealing in so many different ways, there was nothing to excite suspicion in the presentment of the bill by an individual pursuing the vocation which June then did.

Objection was made to the acceptance of the bill as unusual, because made immediately. In England the practice appears to be, to allow the drawee till the day after the presentment to determine whether or not he will accept; and Story, as he speaks without qualification, may be considered as recognizing it also as the american rule, that in every case of a presentment for acceptance the drawee is entitled, if he requires it, to have twenty-four hours to consider whether he will accept the bill or not; and that it is usual, in such cases, for the holder to leave the bill with him during that period. See Story on Bills, § 237. Chitty 305. But the reason of this rule is not that the drawee may make enquiry as to the holder’s title, but that he may have an opportunity, before he determines whether he will accept or not, of examining his accounts and correspondence, and seeing whether he has effects of the drawer or the prospect of them, or other satisfactory reason for honoring the bill. The rule is one of mercantile .courtesy to the acceptor, and for his convenience. And hence when the acceptor accepts at once, he must be considered as doing so because he is satisfied, without examination, that he has effects; and his promptness ought not to be imputed to him as a fault. Beal’s book-keeper and agent, who accepted the bill, says the party was not requested to wait, because he knew the drawer’s account was right, and had no su1 picion with regard to the holders. It is also in evidence that Beal was notin the habit of asking time for examination, being very well acquainted with the state of his accounts; and that the signatures of Randolph and Huntington were well known in his house.

As to the acceptance then of this bill we conclude that, there was not mala fides on the part of the drawee, nor even negligence.’ The next enquiry is, whether Flower is to be considered a bond fide holder. The district judge so treated him, and the evidence is not such as to authorize us to disturb his opinion. The bill was for $1,500, and had about sixty days to run. He gave $35 less than the face of the bill. The rate appears from the evidence not unusual ; and is not such a reduction as a man in bad faith, buying a stolen bill, would require. The fact that he bought from June, whose vocation and, standing we have already noticed, does not authorize us to say that he was in bad faith ; nor does the circumstance that Flower went to.Beal’s on the day of the purchase, throw a shade upon the transaction. The bill was accepted, not by Beal himself, but by his book-keeper, and the enquiry made by Flower was, whether the acceptance was good. This does not authorize the belief of alarm with regard to the ownership of the bill. We are, therefore, of opinion that the district judge did not err in dismissing the action. We have not considered it necessary, under the facts of the case, to say whether we are prepared to go to the full extent of the doctrine laid down by Story, and cited by the district judge. In speaking of the rights of the holder, that author observes : “For a considerable length of time the doctrine prevailed that, if the holder took the bill under suspicious circumstances, or without due caution and enquiry, although he gave value for it, yet he-was not deemed a holder bond fide, without notice. But this doctrine has been since overruled and abandoned, upon the ground of its inconvenience and obstruction to the free circulation and negotiation of exchange and other transferable paper.” And again in speaking of the duty of the acceptor, the same writer observes': “ The reasonable doctrine now established is that, nothing short of fraud, not even gross negligence, if unattended with mala fides, on the part of the acceptor or other party paying a bill, will invalidate the payment so as to take away the rights founded thereon.” See Story on Bills, § 194, 416. The learned author was certainly sustained in this by very high authority. In Goodman v. Harvey, 4 Adol. and Ellis, we find the plaintiff’s counsel expressly conceding that it could no longer be maintained that the holder of a bill is disabled from recovering if he has taken it under circumstances which might reasonably have awakened suspicion, but he contended “ that gross negligence has the effect of fraud.” But Lord Denman said : “ I believe we are all of opinion that gross negligence only, would not be a sufficient answer, where the party has given consideration for the bill. Gross negligence may be evidence of maid fides, but is not the same thing. We have shaken off the last remnants of the contrary docti’ine. Where the bill has passed to the plaintiff, without any proof of bad faith in him. there is no objection to his title.” See also Usher v. Ricks, 10 Adol. and Ellis, 714. In the present case, however, it is not indispensable to determine whether we will relax the ancient rale to the extent contended for. It is clear there was not gross negligence on the part of either defendants ; and not even a case where the suspicion of the parties ought'necessarily to have been excited.

On the other hand, looking to the conduct of the plaintiffs, there was, if not positive negligence on their part, at least something veiy nearly approaching it. The bill was sent by a precarious channel of transmission, endox-sed in blank. If it had been specially endorsed >y the plaintiffs’ agent, this litigation would not have occurred. Judgment affirmed.


text:
    Dubuch et al. v. Wildermuth, Administratrix, &c.

    The presenting of a claim to the representative of a succession ia in the nature of an amicable demand, and is governed by the same rales.

      The fallare to make an amicable demand is no ground for dismissing the proceedings,and no bar to a recovery; and unless the want of such demand be pleaded in limine litis, proof that . , , it was not made is not required.
    The court having jurisdiction in the matter of a succession may order so much of the property to be sold, at the instance of a debtor, as may be necessary to satisfy his demand. Such an order may be applied for by rule ; it is not necessary that the proceeding should he by petition.
    Where a claim against a succession is liquidated, the creditor is not required to institute ail action ill the ordinary form against the succession to enforce payment; he may proceed summarily by rule. C. P. 991, 992.
    APPEAL from the District Court of Jefferson, Clarke, J.

      Caslera, for the plaintiffs.

      Conklin, for the appellant.
   The judgment of the court was pronounced by

King, J.

The plaintiffs, who are mortgage creditors of the succession of A. Schneider, took a rule upon the defendant, to produce in court her bank-book as administratrix, and to present an account of her administration; and, in the event of not exhibiting funds in her hands to an amount sufficient to pay their demand, required her to show cause why a sale should not be made of property of the succession for that purpose. The defendant failed to produce her bank-book, or to render an account, and the rule was made absolute. She has appealed, and contends: first, that the proceeding by rule is irregular, and should have been by petition and citation; secondly, that the plaintiffs have faded to show that their claim was presented to the administratrix prior to the commencement of the proceedings, which it is contended was a prerequisite to a recovery.

The second objection was-not made in the court below. The presentation of a claim to the representative of a succession has been repeatedly held to be in the nature of an amicable demand, and to be governed by the same rules. The failure to make it may involve the plaintiff in costs, but is no ground for dismissing the proceedings, and no bar toa recovery. Unless the want of amicable demand be specially pleaded in liminie litis, proof that it was made is not required. 3 Rob. 264. 1 Rob. 391. 4 La. 106.

The judge is authorized, at the request of a creditor, to order so much of the property of the succession tobe sold, as may be necessary to satisfy his demand. We have been referred to no law which prescribes a petition as the only mode by which this application may be made. The claim of the plaintiffs is liquidated, and, in such cases, the creditor is not required to institute an action in the ordinary form against a succession to enforce payment, but may proceed summarily by rule. C. P. arts. 991, 992. 5 Rob. 98. 10 Rob. 458. The order, in the present instance, was taken contradictorily with the administratrix, after due notice, and full opportunity to oppose any objection that might exist to a sale.

The administratrix appears to us to have been interposing unnecessary obstacles to the payment of a just demand, and to have taken this appeal more for purposes of delay than to subserve the ends of justice. The damages prayed for would have been granted, if the application had been seasonably made.

Judgment affirmed.