New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-06-02
Important Opinion of Judge Howe

The following able decision, lately rem
dered by Judge Howe, of our Supreme
Court, involving grave questions OF inter
national law, is published IN full, with a
svlIabus of the points in the case, handed
ma Inv j. Hawkins, ESQ., reporter Of the
court. This decision is of great Importance
TO the commercial community and business
men generally:
HEAD III
The comfy of nations has well nigh the force Of
n rule Of international law in private matters tjus
gentium privatum).
It is not the comfy of courts, but the comfy of
nations. which authorizes the administration OF
foreign laws within the limits of another sOye.
reignty; and, subject to certain familiar limita-
tiops, the courts have no discretion in the matter.
AS general rule, a personal contract, with its
attendant privileges and effects, when made in an
other State, will be enforced in Louisiana, upon
movables, according to the lex loci cOntractus;
provided such enforcement be not contrary to our
policy, and does not violate the order Of priorities
established by our laws, and does not injure the
rights of our own citizens; and provided further,
that we have by our own law lex fOri the remedy
which is asked.
The plaintiffs, in April, 1863, having, by the laws
Of Alabama, a vendors lien on cotton superior to
Auhb u n AAgGAh CAOAsf az pAGuBOUo1 anu ~ NpBChA-
ing that all parties were citizens Of and made
their contracts in Mobile; that an identical privi-
Iege was provided in New Orleans, and that a sufi-
.cient remedy existed by the laws of louisiana
Held, That the counts Of Louisiana would enforce
such vendors lien upon the cotton sequestered in
New Orleans.
There can be no imprudentc confidence in trusting
ones property to the guardianship of the law.
The plaintiffs, having their lien, and the inter.
venOrs, knowing the law and having it in their
power to know the facts, the latter can not invoke
against the former the rule that "as between two
innocent parties the loss should fall on the one
whose imprudent confidence has enabled tie
wrOng-doer to get credit"
T. T. Tyree & Co. VS.. Sands & Co.; 7. P.
Miller g. CO., intervenOrs.-HOwe, J. On
the thirtieth OF March, 1869, the plaintiffs,
Tyree g. Co, sold TO the defendants, Sands
& Co., in the city of Mobile, ll2 bales of
cotton. On the thirty-hrst of March the
plaintiffs gave to the brokers who had
bought it, orders on the warehouse for the
cotton, and it was delivered. On the day
of the sale the defendants, Sands & Co,
made an arrangement with the interyenOrs,
Thomas 2. Miller s. Co., to sell the latter a
draft for $4,000, to be drawn by Sands g.
Co. on Gardner, Bacon g. Co, of New Ysrk,
ito which was to be attached as collateral a
bill OF lading for 200 bales of cotton. TIL
intervenors handed the defendants $4,000
on account Of this negotiation on the thir-
tieth, and the balance on the thirty-fIrst of
March, the defendants on the latter day de-
Iivering their draft, but not the bill of
Eading. The cotton, which included that
-sS3d bv plaintiffs, was shipped on the first
-of April for New York, via New Orleans,
and bills of lading taken by Sands & Co,
not to order, or in favor of inteTYenOrs,
but in error to the order of Gardner,
Bacon & Co. One of these bills was
mailed to Gardner, Bacon g. Co. by Sands
* Co. in a letter of advice of April l, a
duplicate went forward on the vessel and
the triplicate was retained by Sands d Co.
70 On the second Of April Sands & Co. failed,
and on that day, after their suspension, de-
livered to the intervenOra this triplicate
bill of lading.
On tie third of April the plaintiffs, not
having been paid for the ll2 bales sold by
them, although the sale was "fOr cash"
sequestered the same in New Orleans, and
Miller g. Co. interviewed, claiming the cot
ton in virtue of the bill of lading and the
facts above set forth.
The court below decided in favor of
the plaintiffs, and intervenOrs appealed.
Without dwelling on the intirmities Of
intervenors' title as PLEDGES, in cOnse-
-.qRence of the error in the bill Of lading,
we prefer to pass at once on the principal
point in the case.
By the law of Alabama, in evidence, it is
provided that when a contract is made in
the city Of Mobile, by a factor for the sale
of cotton, and by the general usage of the
trade in that city. it is considered a sale for
cash, but by such usage the purchaser, his
broker or agent, is allowed a reasonable
time to examine, re-weigh, and re-sample
such cotton before paying for it, the seller
shall have a lien, and a lien is hereby given
him. on. such cotton for the purchase money;
which lien is paramount to any sale OF
r A. . = L. ~ -uunaIarz- !
saAd shall continue for fifteen days from
the time when the cotton. or an order for
its delivery on any warehOuseman with
whom it was stored was delivered to the
purchaser, his factor or agent, and no
longer Laws of 1858.
BY the same Statute the vendor could en-
force this lien by a seizure.
By the law Of Louisiana, at the date of
these transactions, a privilege, identical in
character and effect, existed in favor Of the
vendor Of cotton in New Orleans for five
days; and this privilege could be here en-
forced by sequestratiOn. Laws Of 1855, No.
29S. The seizure in this case was made be-
fore the lapse of five days from the sale.
By neither the law of Alabama, nor
of Louisiana in 1869, did this potent privi-
lege require to be recorded in any way.
All the parties to this litigation are citi-
Zens of Mobile.
We see no reason, then. why, upon well
seJCle0 principles OF public law, we should
not enforce the lien of the plaintiffs. The
existence OF decent relations between civil
lied countries, and, a fOrtiOri, between the
States of this nation, depends in a consid-
cradle measure upon the enforcement
by the courts Of such liens as a
matter OF comfy; and this comfy
we understand to be something more
than a ceremonial politeness which
which may be exercised by our courts, or
not, as the humOr may seize them. 1t has,
on the contrary, well nigh the force of a
rule of international law in private mat
ters, pas geHtiuD pFiUattRf, , La. 299. 1T
is not the comfy Of courts, but the comfy
of nations, which authorizes the admins
EnatiOn of foreign laws within the limits OF
another sovereignty" 9 Porter (ala.6 %.
And subject to certain familiar limitations
the courts have no discretion in the matter.
AS a general rule, a personal cOntract,
with its attendant privileges and
effects, when made in another State,
will be enforced in this State
upon movables, according to the lee t0et
cOHtractuS, provided such enforcement Is
not contrary to our policy, or does not vlO-
late the order of priOrities established under
our law, or does not injure the rights of our
own citizens; and provided further, that we
have by the leE t0ri the remedy which is
asked. Story on Conflict of Laws, sec. 322,
b. ct seq: Kent COm., vol. ,, p. 1853, and
authorities cited: Hanrick VS.. Andrews, 9
Porter, %: Ohio Insurance Company VS..
Edmonston. ) La, 299; LObbin VS.. Hewitt,
10 Ann, 5l3.
Thus Mr.. Story mentions "the lien of a