By a judgment of the tribunal of commerce sitting at Annonay, department of L'Ardeche, rendered on the third of February, 1837, the deceased had been declared to be in a state of bankruptcy, and provisional syndics were, in March afterwards, appointed to his estate. On the seventh of August, definitive syndics were appointed. At the instance of the definitive syndics, Jacques Chapius, notary at Annonay, was appointed by the court of the first instance at Tournon, curator of the vacant succession of the deceased. The syndics, and the curator of the succession, under the sanction of the tribunal of commerce, gave a power of attorney to Jean Claude Gravillon, of the city of New York, with the usual authority, to settle the estate of the deceased in Louisiana, and to receive the funds from the executor, N. B. Le Breton. This suit is instituted for the recovery of the funds, by Gravillon, who alleges, that he has substituted Joseph Albert, of New Orleans, to the powers granted to him under the letter of attorney, and prays, that any funds which he, Gravillon, might be entitled to receive, as the agent of the syndics and curator, may be paid to said Joseph Albert, his substituted attorney. The judge of the court of probates considered, that he was bound to distribute the estate according to our laws, and determined that the funds could not be remitted to the syndics and curator. He gave judgment for the defendant, and the case comes before us on an appeal.

It appears that the deceased absconded from his creditors in France, early in the year 1837, and came to the United States, for the purpose of bettering his condition: he was some time in New York; he arrived in the month of April in New Orleans, and finally sunk under the load of disappointment and remorse which his conduct brought upon him. The year of the executorship having expired, the executor rendered his account, which has been homologated; all the claims on the estate which have been presented, or known to the executor, have been provided for in the account, and a balance of about thirty-five thousand dollars remains in his hands subject to the order of the court of probates.

From the evidence, we can not assign any domicile to the deceased other than his original domicile. He does not appear to have had any idea of establishing himself in Louisiana; he acquired no real property here, his principal investments of money were in New York, and there is no act from which such an intention is to be inferred. The fact of a person remaining in a foreign country, without any intention of establishing him

self there, does not operate a change of his domicile; but as soon as the will of making a permanent establishment in the country is combined with the fact of his residence, the residence even for a few days fixes the domicile: D'Argentrée on art. 449 of the Custom of Brittany; 8 Cranch, 279.' The President Bouhier (c. 22, No. 207), says, that though exiles have two domiciles, in one sense, yet as to their successions, the domicile they had at the time of their condemnation is only to be regarded, as the other domicile is occasional and involuntary. The judge of the court of probates considered the question of domicile very doubtful. The solution of questions of this kind is often attended with great difficulty. Merlin, on this subject, says that in questions of doubt the original domicile is to be considered as the true domicile: Merlin's Répertoire de Jurisprudence, verbo Domicile.

For all the purposes of this inquiry, we must consider the domicile of the deceased to have been in France at the time of his death. None of the creditors of the deceased in France have resorted to the tribunals of this state for the enforcement of their debts. There are no creditors here to be satisfied out of the funds of the estate. The creditors in France have addressed themselves to the tribunals of that country for the distribution of the funds, which must necessarily be made according to the laws of France. They have virtually repudiated a distribution under our laws. There can be no doubt as to the existence of debts of the deceased to a large amount in France. His letters establish that fact beyond controversy, independently of the judicial proceedings of the creditors in France, and the action of the tribunals on them. There is no motive of public policy, under these circumstances, adverse to the transmission of the funds to France for distribution. The power of courts to order the remission of the funds belonging to a foreign succession to the representatives of the succession authorized to receive them by the courts of the domicile of the deceased, we consider undoubted. Its exercise is necessarily a matter of discretion, depending on the circumstances of each case, and is a consequence of that comity which prevails between nations in amity with each other. The interests of commerce and of civilization require that this comity should be carried into effect by our tribunals. It is done in England, and in other states of the union, in analogous and similar cases, and whenever the rights of our citizens are not affected by the act to be done, we shall feel ourselves bound to

1. The Venus.

act on a principle which is impressed upon us equally by an enlightened policy and a certainty that it will tend to the great purposes of justices. For the decisions on this important question, see 1 H. Bl. 131, 132, note;' 1 Mason, 381; Story Conf. L., sec. 513; and above all, the opinion of Chief Justice Parker, in the case of Dawes v. Head, 3 Pick. 128.

We therefore determine, that as the interests of no one will be injured thereby, that the court of probates ought to have placed the funds of the estate at the disposal of the syndics and curator of the vacant estate, for the purpose of their being transmitted to the place of domicile of the deceased for distribution.

The power of attorney to Gravillon, sanctioned by the tribunal of commerce sitting at Annonay, contains a clause of substitution. The transmission of funds abroad in a case of this kind is a matter of comity, and not assimilated in any manner to a payment, which could be made to an attorney at law. We can not order these funds to be sent to New York, and they can be handed over to no one but a person authorized by proper authority to receive them. They must be paid to the attorney in fact, recognized as such by the court of probates, and to no one else. Gravillon has, by an authentic act, substituted Joseph Albert, of the city of New Orleans, to his powers, under the power of attorney to him.

It is therefore ordered, that the executor deliver to Joseph Albert, of New Orleans, the funds in his hands belonging to the succession of the late Etienne Richard (so called), as the attorney in fact of the syndics and curator of the vacant succession of the late Ennemond Richard Lioud, otherwise called Etienne Richard, to be by him the said attorney in fact remitted to the syndics and curator, in the kingdom of France, there to be distributed among the creditors of the said Lioud, alias Richard, according to the laws of France, and that the appellee pay the costs of this appeal.

DOMICILE OF A PERSON IS DETERMINED by actual residence at a particular place, united with intent to remain: Lyman v. Fiske, 28 Am. Dec. 293, and

note.

LEX DOMICILII GOVERNS RIGHTS TO PERSONAL PROPERTY acquired by inher itance: Hicks' Adm'r v. Pope, 28 Am. Dec. 142. On the death of a person his assets are to be collected by the authority and administered according to the law of the country where they happen to be at the time of his death: Miller's estate, 24 Id. 345. In the note to Bryan v. Moore, 13 Id. 349, the authorities are collected in support of the rule, that the law of the domicile of deceased governs the distribution of his estate.

1. Folliott v. Ogden.

2. Harney v. Richards.

LOBDELL V. BULLITT.

[13 LOUISIANA, 348.]

STEAMBOATS CARRYING PASSENGERS FOR HIRE are required to be provided with whatever is necessary to insure the entire safety and security of

passengers. OWNER OF A STEAMBOAT IS CHARGEABLE WITH NEGLIGENCE, who has failed to provide a yawl or small boat, and other convenient appliances, which may be made available to save a passenger from drowning.

OWNER OF A STEAMBOAT IS LIABLE FOR THE LOSS BY ACCIDENTAL DROWNING of a slave, who was a passenger on the boat, when, through inattention and neglect, the proper exertions were not made for his rescue.

APPEAL. The opinion states the facts.

C. M. Conrad, for the appellant.

Watts, contra.

By Court, MARTIN, J. The defendant, owner of a steamboat, is appellant from a judgment, by which the plaintiff has recovered the value of a slave owned by him, which fell from on board and was drowned, through the inattention and want of care of the master; and also for the want of a yawl or small boat, and ropes necessary for the use of the steamboat. The general issue was pleaded.

The testimony of the master was introduced by the defendant, and several passengers were examined as witnesses. The testimony is in some degree contradictory; it, however, clearly appears that the slave fell overboard during the night, and that no assistance was or could have been given him, because the boat was destitute of a yawl, and so ill provided with ropes, that none could be had to be thrown to the assistance of the slave.

We agree with the plaintiff's counsel, that steamboats carrying passengers for hire, ought to be furnished with whatever is requisite, or usually provided on such occasions for their safety and that of their servants who accompany them; and a yawl or small boat is, in our opinion, essential to this object. A steamboat should not be so ill provided with ropes and loose rigging, that on an emergency none could be found at hand to be thrown to a person accidentally falling overboard. The plaintiff's counsel has also contended that the master did not use proper exertions to relieve and save the slave. The defendant has endeavored to avail himself of the testimony of the master, after having given him a release. As might have been expected, his evidence and that of the other witnesses do not exactly coincide. In a case like this, the conclusion of the first judge has much

weight with us, and in the present, a close examination of the testimony satisfied us that he did not err in giving judgment for the plaintiff.

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

LIABILITY OF Carrier for Negligence GENERALLY: Johnson v. Friar, 26 Am. Dec. 215, and cases cited in the note thereto.

GRAVES v. Roy.

[13 LOUISIANA, 454.]

ASSIGNMENT FOR THE BENEFIT OF CREDITORS, by the conditions of which certain creditors were to be paid in full, and others who should refuse to release the debtor entirely excluded from its benefits, is void as against dissenting creditors.

VALIDITY OF AN INSTRUMENT, the parties to which were domiciliated in another state at the time of its execution, is to be determined according to the law of the state where executed.

ASSIGNMENT EXECUTED IN THE STATE OF VIRGINIA, where it is held that a condition for the release of the debtor will not invalidate a conveyance in trust for the benefit of creditors, is nevertheless fraudulent and void as to dissenting creditors, if it conveys only a portion of the insolvent's property.

APPEAL. Action was brought against defendant as the drawer of a bill of exchange by the acceptors. Writs of attachment were issued, and among other property an undivided half of the ship Rob Roy seized. The defendant resided in Virginia. De Lacy, residing in Virginia, intervened, alleging that the undivided one half of the ship Rob Roy, seized under the attachment, had been assigned and transferred to him in trust to pay certain creditors. Judgment for intervenor. Plaintiff appealed. The other facts are stated in the opinion.

I. W. Smith, for the appellants.

Harrison and L. Peirce, contra.

By Court, EUSTIS, J. This case comes before us on an appeal from a judgment of the court below, rendered on an intervention of Walter De Lacy, residing in Virginia, claiming, as a trustee, one half the ship Rob Roy, which had been attached in this suit as the property of the defendant. The judgment was in favor of the trustee, and the attaching creditors have appealed. The instrument under which the interest in the ship was conveyed, was executed at Norfolk, in Virginia, on the