[Morgan et al. v. Their Creditors.]

out, have obtained payment of it as they state, by a transaction of which the following instrument is the evidence:

"For and in consideration of the sum of sixteen thousand eight hundred and thirty dollars and five cents, the principal and interest of the bond, of which the within is a copy, and the original now in possession of the syndics of the estate of Benjamin Morgan; received in the note of Thomas A. Morgan, secured by a mortgage from him on the premises, late the estate of Benjamin Morgan deceased, purchased by the said Thomas A. Morgan from the syndics thereof, which said note is accepted by us in full payment and entire satisfaction of this bond; we do hereby assign, transfer, and set over unto the said Thomas A. Morgan, the said bond, and all the moneys due, and to become due, thereon."

At the foot of this instrument is one executed by the person for whose benefit the trust was created, in the following words: "I acknowledge to have received of Thomas A. Morgan, the full amount of interest due on the bond of which the within is a copy, and the original now in the possession of the syndics of Benjamin Morgan's estate; and hereby assign over to him all my interest in the same."

The appellee took a rule on the appellants, in the district court, requiring them to give up to him the note of the insolvent already mentioned, and three others similarly circumstanced. They objected to do so, and after argument the court decided that the appellee had a right to receive them. From this judgment, the syndics have appealed.

The only question presented to the court, is whether this transfer, by the trustees to the appellee, of the note, is a legal exercise of the powers vested in them by the deed of trust.

First

Two objections have been suggested to its correctness. that by the terms of the deed, the power of the trustees is limited to receiving the interest due on the bond, and no authority is conferred on them to collect the principal. Secondly-that if they have the power to collect the principal, they have no authority to exchange the notes in the insolvent's estate for those of any other individual.

As these objections are both founded on the idea of there being a necessity for a strict and literal performance of the trust, they may be considered together.

As the deed was executed in a country governed by the common law, and the assignment to the appellant was made there, the case must be examined in relation to that system of jurisprudence. As we are not familiar with it, we have had some diffidence in coming to a conclusion.

If the effect of the assignment was considered under the strict rules of the common law, there could be no question as to its validity, for the legal title is vested in the trustees, and they have passed it away. But the severity of that system has compelled the countries governed by it, to throw the whole control and jurisdiction of trust estates into their courts of equity. These courts with some aid from the legisla

[Morgan et al. v. Their Creditors.]

ture, have established, in relation to this subject, a system of rational jurisprudence by which trusts are made to answer all the beneficial objects society can receive from them. 7 Bac. Ab. 136; 2 Black. Com. 337.

The first and most important of their rules is to give effect to the intention of the creator of the trust, if it be possible. To accomplish this they look more to a substantial, than to a strict or formal performance of the duty imposed on the trustee. If an unforeseen event, which the party did not contemplate, arises, they will interfere so as to carry into effect the general intention. And it seems, though the rule is not clearly established, that whatever a trustee would be compelled to do by suit, he may do without it. 2 Fonblanque's Equity, 13, 2 chap. 7, sect. 2; Ibid. chap. 8, sect. 4; 3 Bro. Ch. Rep. 60; 2 Vernon, 137; 1 Bunbury, 136; 2 Freeman, 42; 2 Ch. Cas. 16; Sugden on Powers, 445 and 446; 2 Eq. Cases Abr. 668, 6 Vesey, jr. 793.

The application of these principles to a great variety of cases, may be found in the English books. Those most analogous to that before the court, are collected in 7 Bacon's Abridgment, 183; and the rule extracted from them is, "that where a trustee sells out stock contrary to the trust, the cestui que trust may elect to have the stock restored, or the produce of it paid. But if a trustee for the benefit of the trust estate, sells out of one fund and invests the produce in another, or transfers the money from one real security to another, the property continues unaltered, and he shall not be chargeable."

In the case before the court, the intention of the creator of the trust was, that his daughter should receive the interest on a certain sum of money, for the period therein mentioned, and at the expiration of it the principal. An unforeseen event has rendered it impossible for the interest to be collected in the manner indicated in the deed. The duty of the trustees, therefore, looking to the general intent, is, to provide a remedy against the occurrence, by putting the money out at interest some where else. This they could be compelled to do by the cestui que trust, and we have little doubt they may do so without compulsion. In exercising this power, the law requires a sound and honest discretion; and the extent to which they have used it here, seems as well sanctioned by authority, as it is by the reason of the thing. Whether they discharge the duty now devolved on them, by collecting the money from the insolvent's estate, and then lending it out, or by exchanging the notes of the bankrupt for those of another man, against whose solvency, and ultimate responsibility, no doubt has been expressed, is a difference in the mode, but not in the end.

But, admitting the principles on which this opinion has been just expressed, are erroneous, or that we have drawn unsound conclusions from them, the approbation of the cestui que trust clearly renders the transaction valid. She is not shown to be under disability arising from minority or other cause; and though at law she has neither jus in re nor jus ad rem, yet in equity she has both: she has

[Morgan et al. v. Their Creditors.]

jus habendi, and jus disponendi, and her assent cures any defect that might otherwise exist in the power the trustees have exercised. 7 Bac. Ab. 180, 185; 3 Atk. 444.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.

Eustis, for the plaintiffs.

Hennen, for the defendants.

Watson et al. v. Pierce. VI, N. S. 416.

THIRD District.

A court cannot give judgment by default, on a petition addressed to another court. In this case a petition addressed by mistake to the district court of West Feliciana was filed in the office of the clerk of East Baton Rouge.

Nor should the court permit the petition to be amended.

Hawkins v. Vanwinkle. VI, N. S. 418.

Evidence, legal in itself, cannot be rejected, because something more may be necessary to make out the case.

FOURTH District.

PORTER, J., delivered the opinion of the court.

The plaintiff claims from the defendant a slave and other property which the defendant had taken into his possession, and prays that he may be enjoined from selling them under a writ of fieri facias which he had issued against one John M. Walker.

The defendant among other objections which he set out in his an

[Hawkins v. Vanwinkle.]

swer to the demand of the petitioner, pleaded, that she was black and a slave, and as such was incapable of bringing suit.

On the trial of the cause, the plaintiff offered a deed of emancipation passed in Cincinnati, state of Ohio, to prove her emancipation: its introduction was objected to on the ground that previous to reading it, it was incumbent on her to prove the formalities (if any such there were) required by the laws of Ohio in emancipating slaves. The court sustained this objection, and rejected the instrument offered. There was judgment against the plaintiff, and she appealed.

The case has been submitted without argument. It is clear to us the court below erred. The deed should have been admitted for what it was worth. Where the evidence in a cause consists of a variety of facts, the tribunal before which it is tried, has certainly the power to prescribe that such order shall be pursued in their introduction, as will best tend to present the case in a clear and unembarrassed manner. But the exercise of this power can not be construed to extend so far as to authorise the rejection of evidence legal in itself, because something more may be supposed necessary to make out the case. That is an opinion which can only be expressed when the merits are gone into. If the case had been that the party was prepared to show by the laws of Ohio, that no previous steps were necessary, the most natural order was that resorted to, first to show the act of emancipation, and then to prove that it was valid by the laws of the country where it was executed. But the whole proceeding was in fact irregular. This was not the case of a slave suing for her freedom, but of a woman in the enjoyment of it, suing another for property which she alleged belonged to her. In such case the burthen of proving the fact of slavery was on the party making the allegation. By a law of the Partidas where a man claims another who is in the actual possession of liberty as his slave, the necessity of proving him such is thrown on the claimant-a fortiori, where the question arises collaterally with a third party; and the former master by his not interfering in the suit, furnishes a violent presumption that the state and condition of the plaintiff is that which she represents it to be. Partidas 3, til. 15, law 5.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be avoided and reversed, and it is further ordered, adjudged and decreed, that the cause be remanded for a new trial, with directions to the judge not to reject the act of emancipation set forth in the bill of exceptions, because the plaintiff does not prove a compliance with the formalities (if any) required by the laws of the state of Ohio in emancipating slaves: the appellee paying the costs of this appeal.

McCaleb, for the plaintiff.

Cassedy v. Louisiana State Insurance Company.
VI, N. S. 421.

A demand of payment for a total loss, amounts to abandonment.

FIRST District.

PORTER, J., delivered the opinion of the court.

This is an action on a policy of insurance: there have been two verdicts in favor of the plaintiff in the court below. The first was set aside in this court, and the cause remanded in consequence of an error in the charge of the judge. No objection of that kind is made now, and the cause stands before us on its merits.

There is no evidence whatever of a formal abandonment, but there is proof that a person holding the policy called on the defendants, and made a demand as for a total loss; that they asked him if the policy was endorsed to him, or if he had a power of attorney, and that on his answering in the negative, they stated, that the matter must lie over until he obtained an authority, and advised him to write for it. The witness was the person by whom the insurance had been effected.

Whether a simple demand for a total loss amounts to an abandonment or not, is a question which can not yet be considered as settled. Mr. Phillips who has collected the cases in his late treatise on insurance, shows, that it has been decided both affirmatively and negatively in England. The doctrine appears however well understood, that no particular form of abandonment is necessary, and under this principle we are of opinion that a demand of payment as for a total loss amounts to it. The less the transactions of merchants, and all other classes of society are fettered by forms and technical rules, the better are the ends of justice promoted, because there is great difficulty in getting the world to understand and follow them. Courts therefore act correctly, where positive regulations do not prevent them, in looking at the intention of the parties and their understanding, rather than to forms. A demand for a total loss, if not necessarily, at least most strongly implies the doing of that on the part of him making the demand, without which it could not be rightfully made. Payment made on it would certainly vest the right of the insurer in the insured. It therefore naturally follows, that in demanding the payment, the insured avowed his intention of divesting himself of his right to the property and transmitting it to the insurers. Phillips on Ins. 447; 3 Moore, 115; 12 East, 488.