[Landry v. Broussard.]

But we express no decided opinion on this point, for the case is not such a one as we can take cognisance of at present. It is not every erroneous decision of the inferior courts that will authorise an appeal to this. The judgment or order must be such as may work an irreparable grievance, or in other words it must be one that cannot be remedied after final judgment. Admitting therefore that being compelled to tell the truth is a great grievance to the plaintiff, we cannot consider it an irreparable one. Any injury he may sustain from it can be corrected after the case is finally disposed of below. It is, therefore, ordered, adjudged and decreed, that this appeal be dismissed, with costs.

Simon, for the plaintiff.

Bowen, for the defendant.

Rawle v. Fennessey. VI, N. S. 204.

FIFTH District.

Decided, totidem verbis, that a party to a public act, who has not a counter.letter, cannot be permitted to prove that it was feigned and simulated.

Labolais v. Bernard. VI, N. S. 206.

A party who has agreed to pay damages for a trespass on the plaintiff's land, cannot allege his error as to the title of the plaintiff without proving it.

FIFTH District.

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

This action is founded on a written promise of the defendant to

[Labolais v. Bernard.]

pay to the plaintiff the sum of 305 dollars; judgment was rendered in favor of the latter in the district court, from which the former appealed.

The promise, as it appears from the evidence of the case, was made in consequence of a transaction which took place between the parties to the suit, relative to timber which the defendant had taken from the land of the plaintiff. The defence set up against the right of recovery, is error in the transaction or compromise. The appellant alleges that the land from which he took the timber is not the property of the appellee. He certainly recognised it as belonging to the latter by the compromise, and we are unable to discover any evidence, on the record which shows that this recognition was made in error.

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

Brownson, for the plaintiff.

Markham and Simon, for the defendant.

Coleman et al. v. Breaud. VI, N. S. 207.

A copy from a register's office in another state, does not dispense with the production of the original deed.

When the record does not show the law that regulates contracts entered into abroad, the court tests them by the laws of this state.

FIFTH District.

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

The record in the present case contains a history of the proceedings in two suits which were consolidated and in that shape tried in the court below; one commenced by Coleman and Nelson, claiming to recover from the defendant certain slaves, to which they alleged title in themselves, supported by a deed of trust from one Barfield; the other brought by said Barfield, in which he claims the property as belonging to him. There was judgment in the district court for the defendant and the plaintiffs appealed.

The first evidence offered in support of the claim of the trustees is a certified copy of the deed on which they rely, taken from a recording officer in the state of Tennessee. The introduction of this piece of evidence was opposed by the counsel for the defendant, on two

[Coleman et al. v. Breaud.]

grounds, 1. As not having been certified according to the provisions of the act of Congress made for such cases: 2. Because the original deed was not accounted for. The opposition was sustained by the court below, and a bill of exceptions was taken on the part of the plaintiffs. We are of opinion the judge a quo acted correctly in rejecting the evidence in the shape in which it was offered: the original deed should have been produced or its loss, or some other circumstance proved, showing it out of the power of the appellants.

Many attempts were made to obtain the testimony of witnesses by depositions, to support the claim of the plaintiffs; all these were rejected by the district court as having been illegally taken; we have examined the bills of exception, which relate to the opinions of the judge a quo, by which he rejected the testimony, and believe that they are correct in every instance.

The claim of the trustees is wholly unsupported by evidence, and must therefore be dismissed without comment. The only testimony found on the record in support of Barfield's title to the slaves in dispute is that of two witnesses, Meltz and Hudgens. They prove that the plaintiff held the negroes in possession in the territory of Arkansas, and delivered them to one Haralson, under whom the defendant claims title, to be brought to the state of Louisiana, and hired out for the benefit of the pretended owner. The jury to whom the case was submitted seem by their verdict to have discredited this story about the hiring; and if the case were to be governed by laws which authorise the transfer of slaves by parol, in pursuance of this verdict, the title might be presumed to have accompanied the tradition to Haralson, which he has regularly passed to the defendant.

But as there is no evidence in the case which shows that it must be governed by foreign laws and the provisions of those laws on the subject, it is properly to be subjected to the influence of the laws of Louisiana: and according to the principles therein contained, possession is not evidence of title to slaves, for they must be transferred by written evidence of title. It is true, that there may be exceptions to the rule established by our laws, e. g., in relation to the offspring of female slaves born while in the possession of the masters.

In the present case the plaintiff Barfield, does not bring himself within any exceptions to the rule, and consequently, has shown no title to the property claimed in his petition."

The whole circumstances of the case so far as disclosed by the record, do not in our opinion call for the interference of this court, to reverse the judgment of the district court and to enter one of nonsuit.

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

Baker, for the plaintiff.

Simon and Brownson, for the defendant.

Miles v. Oden et al. VI, N. S. 211.

FIFTH District.

If the plaintiff proced to final judgment without the defendant having answered, and without having taken judgment by default, the final judgment will be set aside, as the contestatio litis was not formed by the pleadings.

Rizat et al. v. Ponsony. VI, N. S. 212.

FIFTH District.

The district court is without jurisdiction in a suit to compel a tutor, whose office is expired, to account and pay the balance in his hands.

M'Donough v. Rogers. VI, N. S. 212.

FIFTH District.

No appeal lies from an order directing plaintiff to answer interrogatories. The delay that the plaintiff feared, and alleges for injury, is only increased by the appeal. If the answer be wrongly exacted, that may be made appear after it is put in, as well as here on appeal.

Latiolais v. Richard. VI, N. S. 213.

The bare circumstance of location can give no additional force to a claim in opposition to another originally stronger by its age and locality.

The operations of surveyors cannot derogate from claims to land recognised by the proper officers of the United States.

FIFTH District.

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

The present case presents a dispute concerning four arpents of land fronting on the bayou Vermillion, with the ordinary depth of forty, situated in a place called the Mauvaise Prairie. The plaintiff obtained judgment in the court below, from which the defendant appealed.

The evidences of the titles adduced on the part of the former, show that he had acquired a right to eighteen arpents front on the bayou above stated, with the ordinary depth. The defendant shows a title to twenty arpents front, &c. on the said bayou.

Surveys of the claims of both parties are exhibited, purporting to have been made by a surveyor of the United States, in pursuance of certificates of confirmation issued by the land commissioners, and under orders of the principal deputy surveyor for the western district of the state of Louisiana, &c. Some time after the return of the survey made for the plaintiff, to the office of the principal deputy surveyor, and subsequent to his approval of the same, he (the plaintiff) disapproved of the manner in which his land had been located, as not being in conformity with his original titles.-These titles are supported by two requetes and orders of survey, one in favor of a person named Zerringue, and the other of Provost, who acquired the right of the former and transferred both it and his own to the appellee. The title or rather claim of Zerringue, calls for the land of Fusillier, above on the bayou, and vacant or unappropriated land below. The requete of Provost requires as limits of the land petitioned for, the boundary of one Carrier below, and that of Zerringue above. The surveys of these claims were made for the benefit of the plaintiff under the inspection and instructions of his agent Francois Carmouche, (who figures as a principal witness in the cause,) and were executed in such a manner as to unite them by limiting the lower on the line of Carrier, and running up the bayou for the quantity of eighteen arpents, the whole amount required to fill their measure. Thus executed, the extent of both the surveys (as it