Succession of Jesse W. Wilder.

We have found more difficulty, however, in the other grounds taken by the learned counsel of the defendant, Mrs. Jordan; but, after a full examination of the authorities bearing on the case and the evidence contained in the record, have come to a conclusion adverse to him. The contract was made in Mississippi, where the oride, Miss Bartholomew, then within the age of minority, resided; it was, doubtless, intended to have effect at the domicil and place of business of the husband, in this state. The capacity of the parties, as well as the form of the contract, must be tested by the laws of Mississippi, while its effect must be governed by the laws of this state.

The question is as to the capacity of Harriet A. Bartholomew to make the contract. Was it voidable on account of her minority, or was it absolutely void?

Tested by the rule stated by the counsel himself, to wit: Where the contract is not to the advantage of the minor, it is absolutely void, we do not think the marriage contract in question is void. Suppose the parties had settled in Mississippi, making that their business and matrimonial domicil, and that Jesse W. Wilder had died there, and his succession had been opened, and the issues now raised were presented to a Mississippi tribunal for adjudication, could it be said that a court of that state would decree the marriage contract under consideration void, where the succession was under its jurisdiction, and where it could apply the common law prevailing there, as well to the effect as to the form of the contract and the capacity of the parties?

With the matrimonial domicil in that state, where the common law is administered, can it be said that the wife did not derive any greater rights over her property, the slave, during marriage, with the ante-nuptial contract, than she would have had without it? Surely not. By the common law, the wife has not the right to administer her paraphernal property as she can under the civil law. We deem it proper to remark that the statutes of Mississippi were not introduced in evidence, and we assume, as a matter of history, that the common law prevails there.

The error, we think, the learned counsel of the defendant has made is, that when examining the validity of the act as affected by minority, according to the laws of Mississippi, he looks to the effect of the contract, not as tested by the same laws, but as tested by the laws of this state, which allow the community of acquets and gains,

Succession of Jesse W. Wilder.

and which permit the wife to resume at pleasure the administration of her paraphernal property.

When the effect of the contract is looked to merely to ascertain whether it is valid and binding on the minor who made it, the laws of the state regulating the validity of the contract must alone be consulted. To ascertain whether the contract was for the advantage of the minor, in order to see whether it is void or voidable, the lex loci contractus alone must be considered.

The laws of this state, which was the domicil, and the laws of the place of contract, Mississippi, cannot both be applied to ascertain the validity of the instrument. We cannot say that the contract is not valid in Mississippi, because it gives nothing more to the minor wife than she would have without it under the laws of Louisiana.

The opinions of the witnesses Goode and Dillingham, experienced lawyers of Mississippi, were received as evidence in the case; they are positively of the opinion that the marriage contract under discussion was not void, but only voidable, by the laws of Mississippi, where it was made. Their opinions are entitled to great weight in determining the case, because they were received by the parties as evidence. We think, however, the authorities bearing on the case do not sustain the rule, that where a contract is not for the advantage of the minor it is absolutely void, and not voidable, as announced by the counsel of the defendant to be the test to ascertain the validity of the ante-nuptial contract under consideration.

We

It appears to us that the weight of authorities and the decisions of the courts of the states of the Union where the common law is administered, establish a different rule from that stated by the learned counsel of the defendant, to which we have adverted. take it to be the general rule that the acts and contracts of minors, under the common law as administered in the United States, are voidable only, and not void; and the exception is, where the contract on its face appears necessarily prejudicial to the minor.

We discover nothing on the face of the marriage contract necessarily prejudicial to the minor, and we regard it as merely voidable. The question before us was elaborately examined by the supreme court of the United States, in Tucker et al. v. Moreland, 10 Pet. 65; after a thorough review of the English authorities, Mr. Justice STORY, the organ of the court, arrived at this conclusion. He says: "It is apparent, then, upon English authorities, that however true

Succession of Jesse W. Wilder.

it may be that an infant may so far bind himself by deed in certain cases as that, in consequence of the solemnity of the instrument it is voidable only, and not void; yet that the instrument, however solemn, is held to be void, if, upon its face, it is apparent that it is to the prejudice of the infant." The same eminent jurist, after carefully reviewing the American decisions on this question, declares that: "The result of the American decisions has been correctly stated by Mr. Chancellor KENT (2 Com., § 31) to be, that they are in favor of construing the acts and contracts of infants generally to be voidable only, and not void, and subject to their election, when they come of age, either to affirm or disallow them; and that the doctrine of Zouch v. Parsons has been recognized and adopted as law. It may be added that they seem generally to hold that the deed of an infant conveying lands is voidable only, and not void, unless, perhaps, the deed should manifestly appear on the face of it to be to the prejudice of the infant; and this, upon the nature and solemnity, as well as the operation of the instrument." 10 Pet. 71.

Considering the solemnity of the act before us, and the main object of the parties to contract a marriage, to define their rights of property, and to stipulate for the regulation of the same during the contemplated coverture, we can see nothing prejudicial to the interest of the minor; and, tested by the laws applicable, we believe the contract in question was only voidable, and that it was binding on the minor, unless disaffirmed by her afterward, when having the capacity to do so. We find in the record no evidence of the disaffirmance thereof by Mrs. Jordan, although many years have elapsed since she has arrived of age, and has had the capacity to do So. It is now too late for her to demand the rescission of the contract, as the prescription pleaded by the plaintiff is applicable thereto. C. C. 3507. The other questions are not of a serious character.

It is, therefore, ordered, that the judgment of the court a qua be avoided and annulled, and that there be judgment forbidding Mrs. Jordan to participate as partner in community in the succession of Jesse W. Wilder, and that this case be remanded to the court a qua for decision of the other issues herein, and to be proceeded in according to law, and that the defendant, Mrs. Jordan, pay costs of this appeal.

4

Maspero v. Pedesclaux.

MASPERO, appellant, v. PEDESCLAUX, administrator.

(22 La. An. 227.)

Promissory notes· Notice addressed to deceased indorser.

Where, a short time previous to the maturity of a note, an indorser dies, a ⚫ proper notice of protest of the note sent to such indorser's address, the holder and notary being ignorant of his death, and actually reaching the administrator and one of the heirs, will be sufficient to bind the estate.

APPEAL from fourth district, parish of Ascension. The facts appear in the opinion.

S. M. Berault and Emile Legendre, for plaintiff.

J. K. Gaudet and John H. Ilsley, for defendant.

LUDELING, C. J. On the 8th day of March, 1863, J. A. Landry made a note for $5,000 to the order of Mrs. A. Pedesclaux, payable twelve months after date, at the counting-house of P. Maspero, New Orleans. This note was indorsed in blank by the payee. At its maturity the note was duly protested, and notice of protest was sent through the post-office, addressed to the indorser at Donaldsonville. The indorser had died previously to the maturity of the note, but there is nothing to show that this fact was known to the holder or notary.

It seems to be conceded that the notice of protest would have been good if the indorser had been living when it was made. Is it not valid, notwithstanding the death of the indorser?

The evidence shows that the notice of protest was duly received at the Donaldsonville post-office, where the indorser was in the habit of receiving her letters during her life. Ernest Pedesclaux, the administrator, says: "The letters in the post-office, when addressed to my deceased mother, when withdrawn, were opened by my sisters and myself. They were generally withdrawn from the office. Witness recollects receiving a notice of the protest of the note sued on. My sisters were equally heirs of the deceased. Witr.ess received the protest before he was appointed administrator of lis mother's succession."

The heirs had not accepted the succession, nor had any administrator been appointed to represent the succession, at the time the

Cormier v. Bienvenu.

protest was made and notice thereof sent. Even if the holder were bound to know that the indorser was dead, under these circumstances we are not prepared to say the notice was bad. Story on Promissory Notes, § 310; Parsons on Notes and Bills, 500, 501; Stewart v. Eden, 2 Caine, 121; 17 Johns. 25; Parsons on Mercantile Law, 117.

But in this case the notice actually reached the administrator of the succession, and one of the heirs; and the evidence makes it quite probable that it reached all the heirs in due time. Thus the purpose of the law was attained. Louisiana State Bank v. Dumastrait et al., 4 An. 483.

It is, therefore, ordered that the judgment of the district court be reversed, and that there be judgment against the defendant for the sum of $5,000, with five per cent per annum interest thereon from the eleventh day of March, 1864, till paid, and costs of both courts, to be paid in due course of administration.

CORMIER V. BIENVENU, appellant.

(22 La. An. 300.)

Slavery-contracts relating to.

By the abolition of slavery all contracts existing at the time relating to the sale of slaves were annulled. The sale of a slave being only the sale of his services for life, there was no difference between the right of an owner and of a hirer except in duration; obligations for the sale and also for the hire of slaves were canceled by such abolition, and it is of no importance that the period of hire had terminated before the extinction of slavery or that the contract was valid prior to that time.

APPEAL from third judicial district, parish of St. Martin.

The action was to recover the amount of a promissory note executed by the defendant on the 1st of March, 1864, for $808, and interest at eight per cent per annum.

The defendant alleged in a supplemental answer, and it was not denied, that the consideration of the note was for the value of the services of slaves hired by plaintiff to defendant.