
    
      TURNER vs. RABB.
    
    Appeal from the third district.
    If an older for cotton be given, on discharge of a debt, and the creditor delays presenting it thirty three days, the loss of it by fire will be his.
    This suit was brought on the following due bill, viz: “Due H. Turner, or order $412 18, value received, and for which payment I have given him my order on Canada Cason, at Farrar's gin, for 3435 lbs. baled cotton, which if paid is in full, if not, then this is valid. Nov. 11, 1809. S. Rabb."
    Annexed to this was the order for the cotton, on which was written “I certify that this 14th day of December 1809, Mr. H. Turner, by his agent A. D. Wethers presented me with an order for ten bales cotton, which I cannot pay, owing to the burning of Capt. Farrar's gin, in which said cotton was consumed by fire. Canada Cason.”
    East’n. District.
    May 1816.
    The answer resisted the plaintiff's claim, on the ground that the order had been detained by the plaintiff for an unreasonable time, before its presentation, during which the cotton was accidentally destroyed.
    Glasscock deposed that three or four weeks after Christmas, 1809, he was at Farrar’s gin, and heard the defendant say to Canada Cason, that he had drawn on him an order for ten bales of cotton, in favor of the plaintiff, and heard Cason reply that the cotton was ready. There was about 600,000 lbs. of cotton in the seed, in the gin, when it was burned. The defendant had nine bales made up, and the witness lent him one weighing upwards of 300 lbs. He knows nothing of the weight of the nine bales. Three or four weeks after this conversation, the in was burned.
    The statement of facts consisted of the depotion of Glasscock, the note, order for the cotton and the certificate or declaration of Canada Cason the gin-keeper.
    
      Turner for the plaintiff.
    The note is absolute for the debt, and the order operates as a defeasance. In all cases, the person, who expects to avail himself of the defeasance, must shew performance. The order is only an authority to receive the cotton, which, when received, is to operate a payment: but the note is no payment. This is proven by the giving of the note and the order, and by the recital of the order in the note.
    The order was presented on the 14th of December, two weeks before Christmas, and the gin was burned before.
    Cotton receipts, in the Mississippi territory, the place of the domicil of both parties, and in which the contract was entered into and was to be performed, are negociable, and according to law, when no day of payment is stipulated, are payable in four months from the date. Dig. Miss. laws 233. The order in the present case, contains no day of payment; the gin-keeper had therefore four months to pay it in. The plaintiff was not therefore in fault when he presented it thirty-three days after he received it. Glasscock's testimony cannot be depended upon; according to his account, the gin must have been burnt several days after the presentation of the order. It must have been burned on or about Christmas day.
    There is no time for presenting a bill of ex
      change payable at sight or so many days after sight. 2 H. Bl. 565.
    
      Bradford, for the defendant.
    Our case is not that of a cotton receipt. It is true that, in the Mississippi territory, when a gin-keeper gives a receipt for cotton delivered him in the seed, without expressing the time when he is to return it baled, the law gives him four months. But here the plaintiff received an order for the delivery of the cotton in bales, which the defendant, according to the testimony, had in the gin, lacking one bale, which he borrowed. From the moment of the delivery of this order, the defendant lost all right on the cotton, all control over it; he could take no measure for its preservation—between him and the plaintiff the property of it passed to the plaintiff—it was really a sale of so much cotton, the price of which was to be applied to the discharge of what the defendant owed to the plaintiff. The plaintiff was vendee, the price was already paid ; he was therefore the owner of the cotton—it perished without any fault on the part of the vendor, and the rule is res perit domino suo.
    
    The certificate of the gin-keeper, produced by the plaintiff, to throw the loss of the cotton upon the defendant, establishes the burning of the gin, prior to the presentation of the order. It shews that the conflagration alone prevented the plaintiff’s receipt of the cotton. Glasscock swears we had it in the gin : and the plaintiff himself has placed on the record the declaration of the gin-keeper, that, owing to the conflagration, the cotton could not be delivered. The exact date of the order, the time of the delivery of it, does not appear; but it had been delivered, at the date of the note, the 11th of November : how long before, we cannot ascertain. Taking then the position the most favourable for the plaintiff, the application was delayed thirty-three days. For what purpose? The answer necessarily presents itself for the convenience of the plaintiff. Who is then to suffer? He who was the cause of the delay which has occasioned the loss : for the delay is the cause of the loss.
   Martin, J.

delivered the opinion of the court. The plaintiff sues on an instrument by which the defendant acknowledges a sum due to him or his order, and declares, that he has given in payment an order for a quantity of cotton, to be received at a gin in the Mississippi territory, which if paid is in full, otherwise the instrument to be valid for the sum stated.

The order is annexed to the petition with the instrument. The first is without a date, other has that of Nov. 11th, 1809.

The defendant alleges that the plaintiff is without a cause of action, because he neglected to present the order for payment, till the cotton was accidently destroyed by fire.

Glasscock, a witness introduced by the defendant, deposed, that the gin, at which the plaintiff was to receive the cotton, was burnt about Christmas 1809 : the defendant had then there ten bales of cotton, one of which was lent him by the witness. This last bale weighed 300 lbs. : the witness knew nothing of the weight of the other bales.

On the back of the order is an endorsement of the gin-keeper, stating, the order had been produced to him on the 14th of December, 1809, and was not paid, the cotton having been burnt.

The district court gave judgment for the defendant and the plaintiff appealed.

His counsel shews, that by a law of the Mississippi territory, in which the contract under consideration was made, gin-keepers give receipts for seed cotton brought to their gins, that these receipts are negociable, and when no day of payment or delivery of baled cotton is therein mentioned, they become due four months after date. That in the present case, there being no receipt from the gin-keeper, he was not bound to deliver he bales till four months after delivery of the seed cotton, and these four months had not elapsed, when the cotton was burnt. So that the gin-keeper, by a call on him, could not have been put in mora, nor was he compellable to deliver the cotton, therefore the plaintiff was guilty of no neglect, and consequently is not liable for the loss.

In looking on the order, we find it to be for ten bales of my (the defendant’s) cotton : and it is in evidence, that the defendant had that quantity of bales in the gin-house. Whether these bales proceeded from seed cotton, sent thither to be ginned—whether he had a receipt, without a specific time of delivery—whether that time or the legal one was elapsed—or whether the bales had been purchased from the gin keeper, or any of his customers, does not appear. The law, therefore, of the Mississippi territory which is cited does not apply to the present case.

The order was given, and consequently received in payment. It must therefore have prima facie extinguished the debt, at least suspended it till the happening of the contingency mentioned, viz. the non-payment of it.

The defendant’s obligation was reduced to the warranty of the payment; the plaintiff submitted to the obligation of requiring it. If he had immediately applied, there is no doubt that the cotton would have been delivered. Its destruction results from the delay, and this court is only to examine whether the district court erred in determining that a delay of thirty three days was an unreasonable one. The record does not present any circumstance, that may take the present case, out of the general rule. It ought to have been shewn, if such was the case, that the distance of the gin, the inconveniency or difficulty of access thereto, the ordinary mode of doing business there, presented favourable features in the plaintiff’s case. This has not been done.

The naked question is, therefore, when one has taken upon himself to receive goods, may he protract the risk of the former owner thirty three days; the judge below has thought that he could not, and it does not appear to us that he erred.

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