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IN error to the circuit court of the United States for the district of Maryland.
The facts of the case, as stated in the opinion of court, were:
'The original suit is an action of assumpsit brought by the defendant in error against the plaintiffs in error (the original defendants); the declaration containing the money counts, an insimul computassent and a special count, as for a deceit in the title upon a sale of certain slaves.
'Upon the trial under the general issue, the facts appeared as follows: Mrs Van Pradelles, a sister of the plaintiffs in error, being at New Orleans, in July 1813, made her will, describing herself to be of Baltimore county, in the state of Maryland, and thereby bequeathed all her estate, equally, among her children named in the will, and appointed the plaintiffs in error, executrixes of her will. She immediately after sailed from New Orleans, bound, as is supposed, for Baltimore; and has never since been heard of. In May 1815, the plaintiffs proved the will in the orphan's court of Baltimore county, and took administration of the estate. The property of Mrs Van Pradelles, at New Orleans, consisted of real and personal estate, and among other things, of some slaves; and in January 1816, the executrixes gave a power of attorney to John K. West of New Orleans, to receive and give receipts, &c. for all the goods, & c. belonging to the estate, to receive all sums of money, &c., and particularly 'to cause such proceedings to be instituted, as may be necessary to effect a sale of the whole real and personal estate of which C. D. Van Pradelles, the testatrix, was seised or possessed at the time of her death, and to execute, &c. a good and sufficient deed, &c. in the name of the executrixes, for the purpose of transferring all the right and title of the heirs of the testatrix therein or thereto, to the purchaser of the said estate; and generally to do, negotiate and perform all other acts, matters and things in the premises, that circumstances may require, as well judicially, as extra-judicially, for the effectual settlement of the estate, &c.' West, in January 1817, obtained from the court of probates of the parish of New Orleans, letters testamentary, authorising him to collect the goods and effects of the testatrix, and to make a just inventory thereof, and to do all other lawful acts as attorney in fact of the executrixes. In February 1817, West sold the slaves in question, belonging to the estate, to Hull, the defendant in error, for 1800 dollars, by a bill of sale, duly executed before a notary in New Orleans: 1350 dollars, part of the consideration money, was duly paid to West, who afterwards failed in 1819; but it did not appear in the evidence, that any part of the money had ever come to the hands of the executrixes: 450 dollars was, after the failure of West, received by Mrs Donaldson, one of the children and devisees of Mrs Van Pradelles. The sale was communicated to Mr Winchester, the attorney of the executrixes, and by him to the latter; and the correspondence between Winchester and West is found in the record. In 1826, a suit was brought in the parish court of New Orleans, by the heirs of the testatrix, against Hull, according to the laws of Louisiana, for the delivery and possession of the slaves so sold, and their offspring; upon which such proceedings were had, that a recovery was decreed to the plaintiffs in that suit, by the supreme court of the state, upon the ground, that the sale of the slaves was absolutely void, because, by the laws of Louisiana, executrixes can only sell after an order of court and by public auction, and not by private sale; and that here there was no order of court, no sale at auction, but a sale by private contract.'
The plaintiff, to support the issue on his part, offered in evidence the record of the proceedings in the parish court of the city of New Orleans, in the case in which the children and heirs of Mrs. Van Pradelles were petitioners, against James F. Hull, for the recovery of the slaves sold to him by John K. West, which proceedings were certified according to the provisions of the act of congress. This record contained a duly certified notarial copy of the act of sale of the slaves, dated 27th of August 1817, by John K. West, attorney in fact of the executrixes of Mrs Van Pradelles, to James F. Hull. The original, of which this was a copy, was the notarial register of the sale recorded by the notary, and in his possession according to the laws of Louisiana.
It also contained certain depositions, taken and used as evidence in the cause: and documentary proof, such as the letters of J. K. West, to J. F. Hull; J. F. Hull, to J. K. West; letters from G. Winchester, the counsel of the executrixes of Mrs Van Pradelles, and afterwards their attorney in fact, to J. K. West, on the subject of the estate of the testatrix; powers of attorney from the executrixes to J. K. West, and Mr Winchester; a copy of the petition of J. K. West, to the court of probates of New Orleans, for letters of executorship, and the order of the court thereon, and the letters testamentary granted on the said petition; the accounts of J. K. West, with the executrixes; the correspondence of Mr Winchester with Morgan, Dorsey and Company on the affairs of West after his failure; and the proceedings of the supreme court of Louisiana, on the appeal of J. F. Hull from the parish court.
The plaintiff in the circuit court also gave in evidence, a commission issued to New Orleans and executed there, containing the examination of Martin Blache, register of wills in and for the parish of New Orleans, and ex officio clerk of the court of probates; with a copy of the original power of attorney to John K. West from the executrixes, deposited in the court of probates; under which power of attorney, John K. West had acted in the premisses. The defendants objected to their admissibility, and presented the following objections, which were overruled by the court.
1. That the record in the case of Donaldson v. Hull, in the parish court of New Orleans, is not evidence in this cause against the defendants, except as to the judgment of the court in Louisiana.
2. The copy of the original bill of sale, on record in the notary's office, is not evidence, unless the plaintiff accounts for the non production of the original.
3. That to make the act of sale evidence, it must appear, by the laws of Louisiana, properly and legally proven, that the original act of sale, of which it purports to be a copy, is in the custody of a public depository, and cannot be adduced in evidence.
4. The depositions and documentary proof contained in the record, in the cause of Donaldson v. Hull, are not evidence against the defendants in this cause.
5. That the papers referred to in the testimony of Martin Blache, purporting to be letters testamentary granted by the court of probates to John K. West, are not legal evidence in this case against the defendants.
6. The evidence of Mr Winchester, with regard to the letters, and the account of Mr West, transmitted by him, are not admissible in evidence.
And the defendants, by their counsel, offered the following prayers:
1. The defendants, by their counsel, prayed the court to direct the jury that there is no evidence in the cause to show that John K. West had any authority from the defendants in this cause to effect a sale of any property belonging to the estate of their testatrix in Louisiana, except in conformity with the laws of said state; and that unless the plaintiff shows a sale to the plaintiff Hull, by West, in conformity with those laws, and a subsequent recovery from Hull, he is not entitled to recover.
2. The defendants, by their counsel, prayed the court to direct the jury, that unless they believe that John K. West strictly complied with the special instructions given him by the defendants in the power of attorney of January 30th 1816, and caused such legal proceedings to be instituted as were necessary to effect a sale of the personal estate of which their testatrix died possessed in Louisiana, and, under such legal proceedings, made sale of certain slaves, being part of the said personal estate, to J. F. Hull, the plaintiff in this cause, and the said slaves were subsequently recovered from the said Hull; that the plaintiff is not entitled to recover.
Thereupon, the plaintiff's counsel, on their part, contended and insisted that the commission and the return first herein referred to are legal and competent evidence to prove a recovery of the slaves from the plaintiff, by due course of law, for a defect of title in the defendants, and John K. West, their agent and attorney, and of the plaintiff, who claimed under the said defendants and their said agent as aforesaid.
And also moved the followed prayers to the court:
1. The acts of John K. West, relative to the sale of certain slaves to the plaintiff in this case, in Louisiana, which were made known to the defendants, and were assented to, and acquiesced in by them, are binding upon the defendants, as West's principals: whether those acts did or did not conform to a letter of attorney previously given by the defendants to West.
2. The accounts furnished by John K. West to the defendants, and retained by them, and no item objected to therein, except the charge of five per cent commissions, are proper and legal evidence of the nature and particulars of the transactions between West and the defendants, so far as these transactions are therein detailed, except as to the charge for commissions.
3. The letters of George Winchester, written by the direction and with the approbation of the defendants, to West, and to Morgan, Dorsey and Company, and by them respectively received, and the instructions given to Winchester by the defendants, and by him communicated to West, are proper and legal evidence in this case.
And thereupon the circuit court gave the following opinion.
'The action in this case was brought to recover a sum of money, paid by the plaintiff, for certain slaves purchased by him of John K. West, attorney of the defendants, as executors of Mrs Van Pradelles, a sister. This sale was declared void by the supreme court of the state of Louisiana, where the sale was made, for reasons stated in the opinion of the court; that the sale was made without an order of court, and was not made at public auction.
'The counsel for the defendants contend that, as the sale was not made according to the laws of Louisiana, and was adjudged to be void by the court of that state, the proceedings of the attorney were void for that reason; and that West, being a special agent, did not pursue the instructions of his constituents, but acted contrary to them.
'The counsel for the plaintiff insists, that the instructions of the defendants to their attorney were pursued; and that, whether they were special or general, they were ratified by the defendants, and therefore binding on them; and that the plaintiff in this suit is entitled to recover the money paid by him for the slaves thus sold.
'Whether an agent has a general, or only a special authority, is properly matter of evidence for the consideration of a jury. If an agent exceeds his authority, or if he acts without authority, if the employer subsequently acquiesces in, or approves his conduct, he is bound by it; and a small matter will be evidence of such assent. And if, with a knowledge of all the circumstances, an employer adopts the acts of his agent, for a moment, he is bound by them. But the great principle in this cause, is this: that where one of two innocent persons must suffer by the fraud or act of a third, he who enabled that person, by giving him credit, to commit the fraud, or to do the act, ought to be the sufferer. In this case, it does not appear by the evidence given, that West, the attorney, had or had not taken letters of administration on the estate of Mrs Van Pradelles. The fact is not noticed in the opinion of the court. The court of Louisiana declare the sale void, because made without an order of the court, and not at public auction. We know that, in Maryland, after letters are granted, the executor, or administrator, in many cases, cannot sell slaves without an order of court. This court will not presume that letters of administration were granted to the attorney; much less will they presume that they were not granted. The course of proceeding in the courts of Louisiana, is according to the principles of the civil law. In our state, it is different. With these indications of the opinion of the court, the jury are instructed, that if they believe, from the evidence, that the acts of John K. West, the attorney of the defendants, were made known to them, and were assented to and acquiesced in, they are binding upon them, whether the acts did, or did not conform strictly to the letter of attorney previously given by them to West. This opinion of the court is deemed a sufficient answer to all the prayers made by counsel for plaintiff and defendants.'
To this opinion of the court on the said prayers, and the refusal of the court to sustain the objections so made by the defendants' counsel, exceptions were taken.
The defendants, by their counsel, objected to the admissibility in evidence of the record from the parish court, in and for the parish and city of New Orleans, in the state of Louisianna, annexed to the commission, for any purpose, on the ground of its not being authenticated according to law; but the court overruled this objection. The defendants' counsel excepted.
And the defendants further prayed the direction of the court to the jury, that if they should be of opinion, from the evidence, that the defendants did ratify the said sale of said negroes, yet if they should be of opinion that West did not, before such ratification, apprise the defendants of the fact that letters of administration were never taken out by him in Louisiana, upon the estate of Mrs Van Pradelles; and of the fact that, by the laws of Louisiana, the executrixes, the defendants, never could have claimed any property in the said negroes so sold; and that the defendants, in ignorance of the existence of these facts, did ratify said sale: then, such ratification being made without a full knowledge of all circumstances material for them to know before they made such ratification, is not binding upon them. The court said:
'This prayer not arising from the facts of the case, the court refuse to grant it. But the court are of opinion, that if the jury should believe from the evidence, that the proceedings of their attorney were ratified by them, it is not material whether they knew or did not know that West had not taken out letters of administration on the estate of the testatrix.'
To which opinion, and to the refusal of the court to grant said prayer, the defendants, by ...