Short & Co. vs. Trabue & Co.

ing cases: Holbrook vs. Vibbard, 2 Scammon, 465; Hatcher vs. McMorine, 4 Dev., 122; Lowry's adm'r. vs. Western Bank of Georgia, 7 Ala., 120; Cox vs. Adams, 2 Kelly's Ga. R., 158; Mix et al vs. the State Bank, 13 Ind. R., 521; Hunt vs. Standart, 15 Ind. R., 33, expressly overruling Shanklin vs. Cooper. In each of those cases, except Cox vs. Adams, the action was against the indorser of a note payable in one State and indorsed in another, the laws of which differed, notice to the indorser being required by the law of one and not by that of the other; and it was held that his liability depended upon the law of the place of indorsement. The only difference between those cases and that of Cox vs. Adams is, that in the latter the note was not payable at any particular place. But that distinction was not material, perhaps, because the note was presumptively payable in Georgia, where it was executed, and the maker's liability was governed by the law of that State, as the court conceded, just as it would have been had the note been expressly payable there; yet the indorser's liability was held to depend upon the law of Alabama, where the indorsement was made. We do not perceive how this controversy between assignors and assignees can be affected by the fact that the makers of the note agreed to pay eight per cent. interest That fact does not seem to be material, even for the purpose of showing that the makers of the note contemplated Louisiana as the place of performance of their contract, because the latter fact is conclusively proved by their stipulation to pay the note in New Orleans. Each of those stipulations bound them only, and not the assignors. We do not perceive how the former stipulation, any more than the latter, can prove that the assignors contemplated Louisiana as the place of performance of their contract.

Another question is presented. It was proved that when the note was executed, one of the makers, Clanton, agreed to ship produce to Short & Co., they agreeing to sell it and pay the note with the proceeds. And this is relied upon as showing that Short & Co., when they indorsed the note a few days. afterward, contemplated taking it up in New Orleans. But we do not consider the fact, that Short & Co. expected to sell

Short & Co. vs. Trabue & Co.

produce and pay the note with the proceeds, as the agents of Clanton, as sufficient to prove that they contemplated taking up the note in New Orleans, as indorsers, upon the failure of Clanton to ship the produce, and upon the failure of Clanton & McFadden to pay the note. It may be assumed that the payee of a note for value always expects the makers to pay it. Whether he expects them to do so by forwarding produce or money, and whether he expects them to forward the produce or money to himself or to some one else, would seem to be immaterial. It is, therefore, unnecessary to decide whether or not the pleadings laid a foundation for the evidence on this subject.

In our opinion, neither of the facts relied on by the appellees can relieve this case from the operation of the general rule upon this subject, which was thus stated in the case of Hunt vs. Standart, cited above: "The maker binds himself to pay at the place named in the note for payment, and there his contract is to be performed. The indorser promises, upon certain conditions, which are not expressed in the contract of indorsement, but which are implied by law, that he will pay the note; but not that he will pay it at the place named in the note for payment. His promise is general, for the payment of the note on the implied conditions; and such general promise, not specially to be performed elsewhere, is governed by the lex loci contractus, which must determine the condition upon which he is to be held liable."

We do not regard this position as in conflict with the reasoning of the court in Goddin vs. Shipley, (7B. Mon., 575,) to which we are also referred. On the contrary, the court there expressed a doubt whether an indorsement and assignment, here, of an instrument having the form of a note according to our law, but which was placed on the footing of a bill by the law of Missouri, where it was payable, made the indorser liable, according to our law, as the assignor of a note, or as the indorser of a bill; and reasons were suggested for supposing that he might be liable as the assignor of a note, though that position seems to conflict with another part of the opinion, in which it was said, according to the laws of Missouri, "the note

Belcher vs. Barrett, &c.

is, in effect, an inland bill of exchange, and the rights and liabilities of the parties are to be governed by the law relating to those instruments. It is to be treated as an inland bill, not only in Missouri, but wherever its character and effect come in question." It is true that the court, in stating the supposed case, spoke of an assignment made here, "and by a citizen of Kentucky." But we do not suppose that the court meant to intimate that a contract of assignment is governed by the lex domicilii, since that position would conflict with a previous part of the opinion, which recognizes the correctness of the doctrine that contracts, to be performed at a particular place, are to be governed by the laws thereof. At any rate, such a dictum cannot be regarded as entitled to much weight.

The judgment is reversed, and the cause remanded with directions to discharge the attachment and dismiss the petition without prejudice.

CASE 27-FORCIBLE ENTRY AND DETAINER-SEPTEMBER 25.

Belcher vs. Barrett, &c.

APPEAL FROM THE LAWRENCE CIRCUIT COURT.

1. The provisions of the Civil Code regulating proceedings in cases of forcible entry and detainer, (sections 500 to 518, inclusive,) are a substantial re-enactment of the act of 1810. (Stat. Law, 715.)

2. The want of a judgment upon the verdict of a jury in the country, on a writ of. forcible entry and detainer, is no ground for dismissing the traverse in the circuit court. Such judgment is not necessary to enable a party to maintain a traverse.

3. In such case the truth of the inquisition in the country is the only matter involved in the issue to be tried by the jury in the circuit court.

4. Upon an inquest in the country on a writ of forcible entry and detainer, the verdiet of the jury, "the defendants not guilty," is sufficiently explicit and responsive to. the inquiry submitted to them, and a traverse thereof may be brought. Strict technical precision and regularity not required in verdicts and proceedings under the statutes regulating this remedy.

Belcher vs. Barrett, &c.

A. J. JAMES, for appellant, cited Civil Code, sec. 511; 4 Dana,

597.

JAS. M. RICE, on same side, cited Civil Code, secs. 509, 511; 4 Dana, 596.

CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the court below dismissing the traverse of an inquest found by a jury in the country on a writ of forcible entry and detainer sued out by the appellants against the appellees.

It appears from the record, that the motion to dismiss the traverse was based upon the grounds: First, that there had been no regular inquest in the country; and secondly, that no judgment in conformity with the inquest had been rendered by the justice who presided on the trial in the country.

We think that the court below erred in sustaining the motion upon either of these grounds.

1. It distinctly appears in the record, that the jury found "the defendants not guilty." This was sufficiently explicit and responsive to the inquiry submitted to them. Verdicts and proceedings under the statutes regulating this remedy have never been held to the test of strict technical precision and regularity. 2. No judgment, according to the inquisition, appears to have been rendered by the justice as required by the Civil Code, sec. 508; nor was such judgment necessary to enable the appellant to maintain his traverse. For, by section 511, "if either party conceive himself aggrieved by the finding of the jury, he may file a traverse thereof with the justice," &c. And moreover, the form of the traverse, as prescribed in the same section, is that "the plaintiff [or the defendant] saith that the inquisition retained in this cause is not true; wherefore," &c. On this traverse, the traversee is required to join issue in the circuit court, which issue is to be tried by a jury, and judgment given on the verdict as in other cases. It is obvious, therefore, that the truth of the inquisition in the country is the only matter involved in the issue to be tried by the jury in the circuit court. The provisions of the Code of Practice regulating proceedings in cases of forcible entry and detainer (secs. 500 to 518

Stern vs. Freeman.

inclusive) are a substantial re enactment of the act of 1810, (1 Stat. Law, 725.) And under this statute it was held that the want of a judgment upon the verdict was no ground for dismissing the traverse in the circuit court.

Wherefore, the judgment is reversed, and the cause remanded with directions to overrule the motion to dismiss the traverse, and for further proceedings not inconsistent with this opinion.

CASE 28-PETITION EQUITY-SEPTEMBER 28.

Stern vs. Freeman.

APPEAL FROM THE LOUISVILLE CHANCERY COURT.

1. A party, in order to obtain here, the benefit of the law of another State, should aver, as well as prove, that that was the place of the contract.

2. A statement in an answer that, at the time of the execution of the note sued on, the defendant was an infant under the age of 21 years, is sufficient. It is not necessary to aver that the note was voidable.

3. Where the plea of infancy is relied on in the defendant's answer to a suit upon a note, the plaintiff has a right to prove a ratification of the contract, without avering it in his pleadings. See opinion for a discussion of the question and reference to authorities.

4. Quere. Does the principle supra apply to an acknowledgment or promise relied on to save a claim barred by limitation?

5. The statute which provides that no action shall be brought to charge any person upon a promise to pay a debt contracted during infancy, or a ratification of a contract or promise made during infancy, unless the promise or ratification, or some memorandum or note thereof, be in writing, &c., (Rev. Stat., chap. 22, sec. 1,) applies to all cases in which the plaintiff relies upon a promise or ratification, such as the statute refers to, in support of his action, whether he declares upon it, or proves it to avoid the plea of infancy.

6. The statute supra applies to every express promise to pay a debt contracted during infancy; but not to an express promise to perform any other contract made during infancy, unless such promise is embraced by the word "ratification."