
    EDWARD RUSSELL vs. ALFRED RUSSELL.
    At Law.
    No. 2237.
    I. The testimony showed that the payee named in a promissory note died in 1863, and that his widow acted for some time afterward as sole executrix of his will, and in that character indorsed the note to the plaintiff. Held that in orderto enable plaintiff to maintain an action upon said note, it is necessary to produce and prove a will conferring authority upon such executrix to transfer such note absolutely as the property of the plaintiff.
    II. The fact that no such proof, when it could have been easily obtained, was produced, might well excite suspicion that there was a purpose in withholding it.
    III. In order to constitute negotiability, a promissory note ought upon its face to be for the payment of a sum of money certain as to amount, so that an indorsee may maintain an action upon it in his own name.
    IV. A promissory note, dated at Detroit, in the State of Michigan, and payable there, for-i$3,000, with interest at the rate of eight per cent., with current exchange on A’eir York, is not for a sum certain, and is therefore not a negotiable instrument.
    V. The executrix indorsed the note in Alabama during the late war, and gave it to a messenger, who conveyed it through the military lines, and delivered it to the plaintiff at Leavenworth, in the State of Kansas, and there was no evidence to show that the indorsement was not of a commercial character. Held that the indorsement and transmission of the note was unlawful under the non-intercourse act of July 13,1861, and passed no title to the plaintiff.
    STATEMENT OE THE CASE.
    The ease is stated in the opinion of the court.
    
      
      W. S. Cox and W. B. Webb, for plaintiffs, discuss elaborately the question, in their printed brief, whether the indorsement and transmission of the note in suit by the executrix of the payee through the military lines during the war was in violation of the non-intercourse act, and conclude with the following points:
    1. Was the indorsement by the executrix such a contract as comes within the provisions of the act of July 13, 1861?
    It is submitted that while it is well settled that an executrix may indorse a note payable to the order of a decedent, (Rand vs. Hubbard and others, 4 Metcalf, 252,) the indorsement when made is unlike that of an ordinary payee, in this, that the executor incurs no responsibility by making the indorsement. (Story on Promissory Notes, sec. 120.)
    The executor is the creature of the will, and may be compelled to indorse a note, part of the estate of the testator, so as to pass title to a distributee or legatee.
    2. Was the mere transmission of the promissory note such an act as will sustain the ruling below and make the note invalid? It must be within the prohibitions of the act of July 13, 1861, to be amenable to such criticism. In Allen vs. Bussell, already cited, it is expressly declared that the specifications in that act give the extent of its operation. The note in question does not come, and cannot be brought,, within these specifications.
    
      C. F. Peck for defendant:
    It did not appear either in the pleadings or in the evidence that the transaction was other than an ordinary busiuess transaction, by which an executor indorses a note to another. It was not shown to have been connected with the payment of any legacy to the plaintiff.
    The only question raised by this bill of exceptions is whether a suit can be maintained by the indorsee of a note, the indorsement having been made during the war, within a State declared to be in insurrection and within the confederate lines, and sent by a messenger through the military lines into a loyal State, and there delivered to the indorsee,. the indorser being a citizen of and resident in the insurrectionary State, and the indorsee a citizen of and resident in a loyal State. Willison vs. Patterson, 7 Taunton, 439; Griswold vs. Waddington, 1 Johns., 483.
    A state of civil war suspends all contracts in existence between the respective belligerent parties at the time of its commencement, and all contracts made during its existence are void. Semmes vs. City Fire Insurance Company, 6 Blatch., C. C. R., 445; Levy vs. Stewart, 11 Wall., 250.
    A just application of this rule would show that there was nothing for the indorsement of the executrix to act upon. The paper signed by the defendant had no vitality when it was indorsed. It was not at that time an existing contract, and of course could not be negotiated.
    During the existence of a war interest does not accrue on money due on a contract between citizens of the belligerent parties. Bigler vs. Waller, 3 Am. Law Times R., 157; same case, 3 Chicago Legal News, 26; Hoare vs. Allen, 2 Dallas, 102.
    The position taken by the plaintiff, that the public law on this subject is limited and restrained by the express language of the act of July 13, 1861, is not tenable, as the cases before cited show. That act, after prohibiting all commercial intercourse, further provides, “ that all goods and chattels, wares and merchandise, coming from said State or section into the other parts of the United States, and all proceeding to such State or section, by land or water, shall, together with the vessel or vehicle conveying the same, or conveying persons to or from such State, be forfeited to the United States.” In the case of the Ouachita Cotton (6 Wallace, pp. 525, 526) the precise point was made that this was the penalty to be meted out to those violating the law, and therefore the statute.must be limited to offenses of that character; but the court held otherwise, and applied the prohibition in the full spirit of the public law as laid down by Chancellor Kent.
   Mr. Justice Wylie

delivered the opinion of the court:

This action was brought by the plaintiff as indorsee against the defendant as maker of a note, of which the following is a copy:

$2,000.] “ Detroit, January 1,1856.
Four years after date I promise to pay to tlie' order of David W. Bussell two thousand dollars, with annual interest at eight per cent., and current exchange on N. Y. Yalue received.
ALFRED BUSSELL.”
[Indorsed:] “ Pay Edward Bussell or order.
MARY F. BUSSELL,
Executrix.”

David W. Russell, the payee, was a citizen of Alabama, and Alfred Bussell was a citizen of Michigan, at the date of the note. The former died in the year 1863, at his residence, and subsequently, but during the war, the widow iudorsed the note, in blank, and sent it by the hand of a person coming North, to be delivered to the plaintiff, her son, who was and still is a citizen and resident of Kansas; and this was accomplished.

According to the bill of exceptions, there would be but one question for us to decide in this ease, namely, whether the indorsement upon this note made within the rebellious territory, and its subsequent transmission across the lines by the medium of a messenger, and its delivery to the indorsee, constituted such commercial intercourse as was unlawful at that time. For, if such was the fact, the indorsement was void, and the holder had no right to sue upon the note in his own name.

But by a stipulation between the counsel, it has been agreed that all the questions arising under the note may be considered and decided by the court as if incorporated in said bill of exceptions.”

And the first question which arises upon the face of the note is as to the authority of Mary F. Bussell, executrix, to indorse the note. The note on its face is payable to the order of David W. Bussell. The testimony shows that he died in 1861, and that his widow acted for some time afterward as sole executrix of his will. But that is not the way to prove authority given by a will. The plaintiff went to the trouble and expense of taking three depositions at Zainesville, Alabama, for the purpose mainly of establishing this one fact by witnesses, examined ex parte and without notice, under the 30th section of the act of 1789. If the will conferred the power, and was not set aside for any cause, a copy duly authenticated or proved should have been produced. The fact that no such proof, so easily obtained, was procured, might well excite suspicion that there was a purpose in withholding it. In any view, however, the authority to make the indorsement can be proved only from the will itself, or an authenticated or proved copy.

The next question arising on the face of the note, is whether it is an instrument negotiable, so that an indorsee may maintain an action upon it in his own name.

Its promise is to pay $2,000 with annual interest at the rate of eight per cent., and current exchange on New York.

There was no evidence at the trial to show what was the legal rate of interest in Michigan, where the note was made, and where it was also payable, so that we cannot say that the note is on its face usurious.

But in order- to constitute negotiability, a promissory note ought, upon its face, to be for the payment of a sum of money certain as to amount. In Philadelphia Bank vs. Newkirk, 2 Miles R., 442, the note contained these words: “current rate of exchange to be added,” and they were held to exclude negotiability. The rule that the amount must be certain is laid down in all the books, so that no authority on the point is here deemed necessary. Had the note been made payable in New York, the payee or the maker thereof would have had the benefit of the exchange at the maturity of the note, as the rate might be in favor of the one place or the other at that time, and the transaction might not have been objectionable.

The present case is different. The’ note in question was made at Detroit, and was payable in Detroit, with eight per cent, interest annually,, and current exchange on New York. So that had it happened, at the maturity of the note, that exchange was in favor of Detroit and against New York, the maker could have had no advantage from that circumstance, for he must notwithstanding pay the whole sum, with interest. If the transaction be clear of fraud upon the law, there is no objection to making a note payable at a different place from that where it was made, and this is a very common form of mercantile business; for non constat that the stipulation may not turn out to be favorable to the debtor, according as the rate of exchange may be between the two places. But the present is not such a case; the note in question was payable in Detroit, and if exchange on New York had at its maturity been in favor of Detroit, the maker must still have paid the whole; but if, on the contrary, the rate of exchange had been the other way, he would have been obliged to pay the exchange, whatever it might be, in addition to the amount of the principal and interest.

The note in question is one of very uncommon form, and it seems to us a very objectionable form of paper. What would be thought of it by the courts if a note were made payable in New York, with legal interest, and exchange on London ? A person may draw his bill on London, or make his note payable in London, if he choose, and it would be liable to no objection. But to draw or make such paper for a certain sum, and rate of interest, with exchange on Paris or St. Petersburg, would be outside of all the recognized forms of business. This note is not, therefore, in our opinion, a negotiable instrument.

Grutacap vs. Woulluise, 2 McL. R., 581, is, we think, quite reconcilable with these principles. There is no report of the facts in that case except what is contained in the very brief opinion of the court. The note was made, and the transaction took place, in New York, but was made payable at the Detroit City Bank, with current rate of exchange on New York. It was in effect, therefore, nothing more than a note payable where it was made. It was made in New York and payable at Detroit, wnth exchange on New York. Nor does it appear in the case but that the action was in the name of the payee, in which case the point as to negotiability could not have arisen.

As to the question of the effect of the war upon the transaction, we think there was no error in the opinion of the court below. There was no evidence given by the plaintiff to show that the indorsement by Mrs. Russell was not one of a commercial character. To be sure she was the mother of the plaintiff, and we might entertain a private conjecture that the note had been bequeathed to him by the will of his father; but we are absolutely without evidence upon that subject. Since the plaintiff has thus left us in darkness as to facts most important to the decision of his ease, we are obliged to assume, not only that he had no right to the note in question under his father’s will, but that its professed assignment grew out of some transaction for which it was the consideration, and in consequence was unlawful under the act of 13th July, 1861.

Had a copy of the will, duly proved or authenticated, been produced in evidence, and it had there appeared that the note in question had been left to the plaintiff by his father, and that the widow, Mary F. Russell, was executrix, and had pówer to indorse it over to the legatee to whom it belonged, the case would have presented an appearance very different from that it now presents, so far as it relates to this question under the non-intercourse act. The other objection, however, to the plaintiff’s recovery in this form of action, would have remained unaffected by such proof.

Judgment affirmed.  