
    
      JOHN BROWN & CO. vs. RICHARDSONS.
    
    East’n District.
    May, 1823.
    Appeal from the court of the first district.
    It is not sufficient that the facts necessary to be stated in a petition, to create responsibility in one character, establish liability in another to authorise the conclusion that the defendant was sued in both.
    Contracts should be pounded according to the laws of the country where they are made, and enforced according to the regulations which prevail where the debtor is found.
    If the property of the estate of a person who has died abroad comes into this state after his decease, it cannot be attached. It must be represented by a curator.
    If the defendant sued in one capacity suffers an inquiry to be gone into to establish responsibility in another, judgment will be given in pursuance to the proof adduced.
   Porter, J.

delivered the opinion of the court. The petitioners aver that Wm. Anthon Richardson, Wade Richardson, John G. Richardson, Jared Richardson, and James Richardson, residents of the state of Mississippi, are indebted to them in the sum of $2630 99/100 for this, that Joseph Fuqua and Wade Richardson, trading under the firm of Fuqua & Richardson, made their promissory note for that amount in favor of Francis Richardson, deceased, who being indebted to the peti tioners, endorsed it to them. That they presented it to the drawers, who refused payment, and that they caused it to be protested, and due notice thereof given to the endorser and his representatives. In consequence of which they state that the persons above named, who are heirs of Francis Richardson, have become liable to them for the note thus endorsed by their ancestor, and more particularly so, as they have received property of his estate to a larger amount than that now claimed of them.

The petition concludes by stating, that the parties above named reside permanently out of the state, but that they have credits and effects in the hands of — Debuys & — Longer, and prays that the property of all the said defendants, or any of them, within the jurisdiction of the court, may be attached to an amount sufficient to satisfy the claim, with interest and costs.

An attachment issued as prayed for, and the sheriff returned that he had attached in the hands of the garnishees, the goods and chattles, lands and tenements, credits, &c. of the defendants, to satisfy the demand contained in the petition.

Two of the defendants, viz. Wm. A. Richardson and John G. Richardson, released the property attached, which belonged to them, and gave bond with security, conditioned as the law directs.

The attorney appointed by the court to defend the rights of the parties, non-residents, filed an answer in which he stated, that under the authority conferred on him by the appointment of the court; he denied the allegations contained in the petition, and pleaded specially—1st, that the note was made in the state of Mississippi, where the ancestor of the defendant’s resided and died, and that the plaintiffs' remedy was against his executor. 2d, that the heirs of Francis Richardson were eight in number, and that if they were held to be responsible, it could only be each for his part.

One of the defendants, Wade Richardson, is a partner in the house of Fuqua & Richardson, who are the makers of the note, and as he is heir to Francis Richardson, who is endorser, it has been made a question in this case, whether the petition, the material averments of which we have just recited, does not charge him as maker, as well as heir to the endorser. We are clearly satisfied it does not. It is not sufficient, that the facts necessary to be stated, to create responsibility in one character, establish liability in another, to authorise this court to conclude that therefore the defendant was sued in both. Every thing in a petition should be plain and perspicuous, and the party sued ought to be clearly instructed why he is sought to be condemned, not left to infer it from doubtful and obscure allegations.

The next question is, which of the parties named are regularly before the court. It has been contended that only two of them, W. A. and J. G. Richardson, have been made defendants. On recurring to the petition we find, however, that three other persons are sued with the two just named,and the sheriff returns that he has levied the writ of attachment on the property of the defendants. There is nothing in the record which proves this untrue. It is indeed stated that two of the parties replevied certain credits and a quantity of cotton belonging to them, which had been attached; but this the plaintiffs contend, and we think correctly, does not prove that the objects released were necessarily every thing which had been levied on. And even if the bond did state explicitly, that all the property seized had been given up, it would not be sufficient to disprove the sheriff’s return. For, in order that the evidence should have that effect, it ought to have been given contradictorily with the opposite party. The admissions of the counsel in respect to the bond, are confined to an approbation of the security—his previous assent is given to the property being delivered up to the defendants.

The next inquiry which the case presents is, as to the liability of the defendants. The contract on which they are sued was made at Woodville, in the state of Mississippi; their father died there, leaving executors charged with the settlement of his estate, and payment of his debts; and it is insisted that, according to the laws of that country, the heir is not responsible for the simple contract debts of his ancestor.

The counsel have agreed that the common law and statutes of England, up to the year 1776, form the rule of action in that state, except so far as they are changed by its legislative enactments.

At common law the heir was not bound by the contract of his ancestor, unless expressly named in it, Bacon's Ab. 3, 459—heir and ancestor. We do not find any thing in the laws of Mississippi, which alters or affects this principle, or which makes him responsible. What relief a court of equity in that state would afford to a creditor, on a contract made in another country, against the heir, who (after the payment of all the supposed debts of the estate by the executor) had received the residuary portion, we do not know. But on such proof as has been given in this case, the defendants could not even be pursued before that tribunal; for the executors swear that they have in their hands, and intend to hold, funds to an amount sufficient to pay the claim of Brown & Co.

We recognise the distinction made by the plaintiffs’ counsel between the right and the remedy, and agree with him that contracts should be expounded according to the laws of the country where they are made, and enforced according to the regulations which prevail where the debtor is found. It is that distinction which gives the defendants immunity in this case. For in order to ascertain who is debtor, we must recur to the laws of the country where the contract was made; and if these laws do not make persons standing in the character of the appellants liable, under the circumstances now in proof, they cannot be made so by a change of jurisdiction. It is true, that according to our jurisprudence, the heir is obliged to pay the debts of the ancestor, if he accepts the succession unconditionally ; but it does not follow that the same rule exists in other countries. An embarrassment is created in considering the case, from a feeling which it is difficult to check, that there exists something like a natural obligation on the child to pay the parents debts—particularly takes any of his property. But that obligation is in fact nothing but the creature of positive law, and is of course subject to all the modifications which the policy of different states may induce them to adopt.

But it is contended that the heirs are only sued here as the means of getting at the property of their ancestor. To this argument we think the reply of the defendants’ counsel is satisfactory. If Richardson, who died in the state of Mississippi, has property in Louisiana, and his heirs live out of its limits, the succession is a vacant one, and a curator should be appointed for it—M'Kenzie vs. Havard, 12 Martin, 101.

The last point is the liability of one of the defendants as drawer, and we are of opinion that the district court did not err in giving judgment against him in that capacity. He is proved to be the maker; and although, as we have already seen, the petition was not sufficiently explicit to allow us to say that the defendant was apprised of being sued in that character; yet, as it appears an investigation was gone into in the court of the first instance in relation to his responsibility, as such, and as the evidence taken establishes that responsibility, we think the plaintiffs should recover. If the testimony had been introduced, as it is urged it was, merely for the purpose of making out the plaintiffs’ demand, as they thought fit to alledge it in the petition, there would be much weight in the argument used, to distinguish this case from those already decided on this head. But the proof taken here, was to establish a right to recover in another capacity—2 Phillips' Ev. 18 ; Langlini vs. Broussard, 12 Martin, 18.

The investigation we have gone into, as to the rights of all the defendants, expresses our opinion on an objection made that only two of them had appealed. On the whole, we think that the judgment of the district court should be annulled, avoided and reversed: and proceeding to give such judgment as in our opinion ought to have been rendered in that court; it is ordered, adjudged and decreed, that the plaintiffs do recover of the defendant, Wade Richardson, the sum of two thousand six Hundred and thirty dollars, 95 cents, with interest on the said sum at eight per cent. for the 22d March, 1822, until paid, and costs of suit. and by reason of the garnishees, — Debuys & — Longer, having failed to answer the interrogatories propounded them, it is decreed that they pay the amount of this judgment, or in failure thereof that execution issue thereon against them according to law.

Eustis for the plaintiffs, Hoffman for the defendants.

It is further ordered, adjudged and decreed, that there be judgment for the other defendants against the plaintiffs, as in a case of non-suit.  