[Pratt v. Flower et al.]

derives great probability, too, from its being in conformity with the usual mode of doing business. Men rarely make payments on account of third parties, without taking written acknowledgments of the transaction. We think, therefore, the defendants, after offering proof that a written receipt had been given, could not introduce parol evidence in regard to the payment, without accounting for the receipt.

Bonne et al. v. Powers. III, N. S. 458.

The Spanish law did not require that all the formalities necessary to give effect to a will should appear on the face of it.

If a will be not void, but voidable, no one but the heir at law can take advantage of the defect.

A sale not signed by the vendor, cannot be the basis of the prescription of ten years.
In prescription, a just title is necessarily the basis of good faith.

PARISH Court of New Orleans.

PORTER, J., delivered the opinion of the court.

The petitioners, as heirs of P. Bonne, deceased, claim from the defendant, a tract of land, situated in the parish of New Orleans, of twenty arpents front; which they allege he has taken possession of without any title.

The defendant pleads,

1. That the plaintiffs are not, as they style themselves, the natural children of P. Bonne.

2. That they are not free persons, being born from a woman slave at the time of their birth.

3. That they are not, as they state they are, testamentary heirs of P. Bonne.

4 That he has been in possession of the premises in question, for more than ten years, in virtue of a just title, and with good faith.

5. That the plaintiffs have received from their mother, the price of the property sued for.

6. That all and singular the allegations, contained in the petition,

are untrue.

The court below decreed the land to the plaintiffs, but condemned them to pay the purchase-money, on the ground that they were heirs of their mother, from whom the defendant had bought.

[Bonne et al. v. Powers.]

The defendant appealed, and the plaintiffs have asked in this court that they be relieved against that part of the judgment which directs them to pay the original purchase-money to the appellant.

The first and second points made by appellant, have been abandoned on the argument. In support of the third, he has principally relied on alleged defects in the last will and testament of the plaintiffs' ancestor, by which they were instituted his heirs. The principal objection has been drawn from a rule of the Spanish law, which requires that in case the testator does not speak, nor understand the language of the notary, the public interpreter shall be called in; and in case. there is no public interpreter in the place, some other person who understands the language shall be required to assist at the making of the will, and that such person shall be duly sworn to faithfully explain the declarations of the person desirous to make his will. Febrero, p. 1, cap. 1, secl. 28, no. 297.

It is said that it does not appear on the face of the testament, that the person who assisted as interpreter was a public officer of the government, or if he was not, that he was duly sworn according to law.

The will was made in the year 1799, before the change of government. The Spanish law did not require, as our Code does, it should appear on the face of the instrument itself, that all the formalities. necessary to give effect to a will, previous to the signature of the testator and the witnesses, had been complied with. Proof of this could be received, when the testament was admitted to probate, and the execution ordered. This we are bound to presume was furnished, when the competent authority directed the will, under which the heirs claim, to be carried into effect. So long as this judgment remains unreversed, and the validity of the will unimpeached by the heirs at law, we apprehend that a third person who detains the property of the deceased has not a right to contest it. The rule of res

inter alios acta non nocet does not apply to a case like this. The will is not introduced per se as binding on the rights of third parties, but as a fact in tracing title, as constituting a part of the muniments of an estate. If it were on the face of it absolutely null and void, it would then perhaps give rise to a different question, the party in possession might say, it could produce no effect, hic tuus titulus, revera titulus non est. What you offer does not, nor cannot transfer the right of your ancestor, and therefore you cannot claim from me, what belonged to him. But this will is not on the face of it null and void; it is merely voidable. It therefore does transfer the right of the ancestor, unless set aside and annulled, by those to whom the succession would have devolved, in case the testament had been made. Merlin's Rep. de Juris. vol. 8, verbo Nullité, 660, sect. 3; Breedlove & Bradford v. Turner, 9 Martin, 377; Barr v. Gratz, 4 Wheaton, 213,

220.

The next question to be decided, is presented by the plea of the defendant, that he has acquired a title to the premises by prescription. As thirty years have not elapsed since he entered into possession, it is

[Bonne et al. v. Powers.]

necessary for the validity of this pretension, that he should show a just title, and good faith. In support of the first, which is necessarily the basis of the latter, he presents a public act, which purports, that the testamentary executrix of the will under which the plaintiffs claim, and one Francisco de Rua, her atttorney in fact, had sold to the defendant the premises now in dispute, as part of the succession of the ancestor of the petitioner. To this title the plaintiffs have objected, and we think correctly, that the instrument not being signed. by the executrix, nor by any person for her, it is null, and cannot be a just title, on which to base prescription.

The last point is disposed of by that just decided. The act is no better evidence of the receipt of the purchase-money, than it is of the sale. One of the heirs, Rosette, having discontinued since the commencement of this action, judgment must be rendered in favor of those who have persisted in their claim.

It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be reversed, avoided and annulled, and, proceeding to give such judgment here, as in our opinion ought to have been given in the court below, it is ordered and decreed, that the plaintiffs Jean Baptiste, Jacques, Charles, Manuel, and Adelaide, do recover of the defendant, five-sixths of the premises claimed in the petition, with costs in both courts.

Morel, for the plaintiffs.
Dennis, for the defendant.

Plauche v. Plauche. III, N. S. 463.

COURT of Probates of New Orleans.

The curator should be adjudged ten per cent. per annum on the revenue produced by the estate of the heir while under his manage

ment.

Fougard v. Tourregaud. III, N. S. 464.

Certificate of notary under the act of 1821, is not evidence unless the forms prescribed by statute have been strictly pursued.

But if received without objection it is legal evidence.

If a paper be evidence of one fact, and not of another, it will be presumed to have been read, to prove that which could be legally established by it.

PARISH Court of New Orleans.

PORTER, J., delivered the opinion of the court.

The defendant is sued as endorser of a promissory note. He pleads want of notice of protest; that the note had been secured by a mortgage on property, which the plaintiff in this suit had permitted to be sold on an execution against her; and that as she had, by her own act, deprived herself of the power to make a cession of the right accessary to the note, she cannot recover from the defendant.

On the trial, the plaintiff offered as evidence of notice of the protest, a declaration of a notary public, made in pursuance to an act of the legislature of the state, approved the 14th of February, 1821, entitled "An act concerning protests of bills of exchange and promissory notes, and notices to be given to drawers and endorsers." The defendant did not object to its introduction, till after the evidence was gone through; but called on the judge to charge the jury, that the declaration was not legal evidence of notice, as it had not been drawn up in the form prescribed by law. The judge refused to direct the jury as prayed for, and the defendant excepted to his opinion.

This act of the legislature makes a great innovation on the rules of evidence. It renders men responsible to any amount, on the mere declaration of others, and waives the solemnity of an oath in regard to facts which are matters en pais. Such a law cannot receive too rigid a construction, and he, who claims the benefit of it, should bring himself within its letter.

That principle we should not fail to apply to this case, had the proceedings in the court below enabled us to do so. But as has been already stated, the certificate or declaration of the notary, was received in evidence without opposition, and once permitted to go to the jury there could be no further question in regard to its legality; the only thing to be examined was its effect: whether, in other words, it was sufficient to satisfy the minds of the jury of the truth of the facts therein stated, and of that, they, and not the court, were the judges. Whether the statement was worthy of credit, did not depend on the form in which it was written, though the legality of admitting

[Fougard v. Tourregaud.]

it as evidence did. Highlander v. Fluke, 5 Martin, 459; Babineau v. Cormier, 1 Martin, 456; Pannell v. Coe, Ibid. 614; M'Neely v. M'Neely, Ibid. 646.

The defendant, however, insists, that without contesting the correctness of this rule, he does not come within its operation, because the paper offered here was evidence of the protest, as well as evidence of the notice of that protest: that he could not have objected to it as proof of the former, and that consequently no assent can be presumed on his part, that it should be received as evidence of the latter, it being a well established principle in this court, that when a paper is introduced, which is legal proof of one fact, and not of another, it can never be assumed it was read to establish any thing which by law could not be proved by it. Breedlove et al. v. Turner, 9 Martin, 380. This exception is certainly correct, but the application of it is not well founded. The protest was proved by the original instrument of protest. The introduction of the copy, with the declaration of the notary, that he had given due notice to the endorsers, cannot be presumed to have been for the purpose of establishing that the note had been protested. Unless we supposed the plaintiff wished to prove one fact twice, and not to prove another, equally as essential to his right of recovery.

We are unable to perceive any weight in the second ground of defence, taken by the defendant. He was a party to the suit, in which the slave he now claims a cession of, was sold. The proceeds of that sale have been applied to his credit, for had not the price been deducted, he would have been responsible for the whole amount of the note.

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

Morel, for the plaintiff.

Barbin, for the defendant.

Dutillet v. Dutillet's Syndics. III, N. S. 468.

The act of 1813, in that part which requires the registry of marriage contracts thereto fore passed, to be recorded within a year from the passage of the act, &c. &c. is not unconstitutional as regards the constitution of the United States.

PARISH Court of New Orleans.