Code, except that ours provides expressly in the same manner for the donation of slaves, and requires that an estimate should be made of them, and signed by both donor and donee, &c. There can be no doubt, according to the interpretation given to this law by French jurists, and which we believe to be correct, of tradition of moveables obviating the invalidity of a donation, which would otherwise take place for want of an estimate. The only question which remains for examination is, whether the delivery of slaves, under a deed of grant, made and accepted in due form, will, agreeably to general rules of property in this state, produce the same effect? The principle reason which seems to have influenced the opinions and decisions of those who have considered tradition of moveable property, made in pursuance of a will to give, as sufficient to cure all defects of form in donations, is, that possession of this kind of property is held to be equivalent to title, or in other words, to be evidence of title. But according to our laws in relation to titles by which property is held, a written instrument is required in order to transfer slaves from one proprietor to another; and when the evidence offered in support of title to them is an act of donation, to give it validity, it must appear clothed with all the formalities required by law, and sanctioned by an authentic deed. Mere possession is not evidence of title. In the present case, the notarial act is invalid, for want of the estimate required by the code, and is therefore no evidence of title in the donee, because donations cannot be supported by any instrument inferior to authentic acts. In this species of contract forms appear to assume the place of substance. From the foregoing review of the case, there can be no difficulty in perceiving the difference in the legal principles which govern it, from those on which the decisions were made, relative to synallagmatic contracts, relied on by the counsel for the appellants, Judgment affirmed. ATKINSON V. CLARKE. 9. Dec. T. 1831. 3 Devereaux's North of slaves in olina. Ruffin, J., delivering the opinion of the court in this case, de- Rule as to cided, that an assignment of slaves not under seal is void, where the transfer there is no delivery of possession, or price paid. In Kentucky North Carno parol gift of a slave could be made prior to the act of 1787. By that act a parol gift was valid if accompanied by possession. But even under that act the possession of the donee, is not valid against the creditors of the donor, or purchasers for a valuable consideration, until the donor shall have been in possession three years. 10. When hired out. Sale by an auctioneer of a slave without authority vests no title. Where a slave was sold on that if the not like BUTT V. CALDWELL. Fall T. 4 Bibb's Rep. 459. Held by the court, that the sale of a negro while she was hired to another, transfers the possession, as well as right of property ; and the bill of sale is not, as to creditors, fraudulent per se, because possession was not actually given to the purchaser at the time. The slave at the time of the sale was hired out, but the owner might nevertheless sell him. The right to dispose of property, though not in the possession of the vendor, but which was held under him, was decided in Bullock v. M'Calla, 2 Bibb's Rep. 289. If, then, the right may be thus transferred in the slave, the subsequent holding by the person who had hired, ought not to be treated as the possession of the seller. BARFIELD v. HEWLET. 11. June T. 1832. 4 Louisiana Rep. 118. Held by the court, Martin, J., that the purchaser of a slave at auction acquires no title, if his vendor be without authority to sell. 12. WILLIAMS V. MOORE. Oct. T. 1811. 3 Munf. Rep. 310. The declaration averred, that the defendant entered into a vercondition, bal agreement with the plaintiff to purchase a negro woman slave, buyer did named Peg, for $300, upon condition, that if the defendant did him, to re- not like her, he was to return her in two or three weeks; and in turn him in a specified pursuance of the said agreement, the defendant received the said time, and Peg, and while in his possession, she was injured by being frost bitten, and rendered of little value; and thereupon the defendant refused to keep the said negro, or to compensate the plaintiff. in the mean time the slave is frost bitten, the return the is not liable The counsel for the plaintiff moved the court to instruct the buyer may jury," that if they were of opinion that the negro mentioned in slave, and the declaration was purchased by the defendant of the plaintiff, if he took upon that condition; that if after keeping her two or three weeks, care he did not like her, he was at liberty to return her; that in such prudence event, the defendant, to entitle him to the benefit of the contract, takes of his was bound to return her in the same condition he received her, such as a man of own. even although the injury she sustained was not imputable to the neglect of the defendant." But the court refused to give the jury such instruction, and instructed them, "that no bailee is responsible for accident, unless it be expressly agreed between the parties to the contract, that he shall be so liable; that when the bailee alone is benefited by his contract, he is bound to slight neglect ; and that slight neglect is the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels." To which opinion of the court, "refusing the instructions," the plaintiff filed a bill of exceptions. Verdict and judgment for the defendant. Plaintiff appealed. At a subsequent day the president pronounced the court's opinion, that the judgment be reversed, the verdict set aside, and the cause remanded to the superior court of law, with discretion of that court to instruct the jury, that, "if the injury to the slave complained of was not imputable to the neglect of the appellee, he would not be responsible therefor, unless he expressly agreed to be so liable, and that as no such agreement is charged to have been made, he is only bound, according to the present declaration, for ordinary care of the slave in question; that is, such care as any man of common prudence, and capable of governing a family, takes of his own concerns, and that he is answerable for ordinary neglect only." 13. HARPER V. DESTREHAN. April T. 1824. 14 Martin's Louisiana Rep. 389. of a stolen not enti tled to de mand the price from owner. Per Cur. Porter, J. The plaintiff sued to recover a female slave, The bona who had been illegally and forcibly taken out of his possession. fule vendee The judge below decreed he should recover, but condemned him negro is to pay the price of the negro, because she had been stolen, and purchased by the defendant at public auction. Both parties appealed from this judgment. The evidence proves the identity of the slave, the lawful that she was part of the estate of one William Burland, deceased; and came into the possession of the plaintiff as guardian to William Burland, jun. The title under which defendant claims is of a date previous to this, and nothing shows any right in the person from whom it emanated. The plaintiff, therefore, is entitled to recover, and the only question which remains to examine, is, whether he must reimburse the defendant the price he has paid for her. His obligation to do so has been contended in this court to result from the provision in the code, which declares, that things moveable may be prescribed for in three years, unless they have been stolen; and even if they have been stolen, the owner cannot recover them without paying the possessor the price which they cost him, provided he bought them at a public market, fair, or at a public auction. Civil Code, 488., art. 74, 75. Slaves, by the laws of this country, are considered as immoveable, not moveable; therefore, the above rule does not apply to them. The reason upon which that rule was established, also excludes the idea of its having any application to this kind of property. It does not pass by delivery, but by writing, and the purchaser should look to title, and not to possession, as evidence of ownership. It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed; and it is further ordered, adjudged, and decreed, that the plaintiff recover of the defendant the slave claimed in the petition, with costs in both courts. conveys to 14. DUPREE V. HARRINGTON. NOV. T. 1824. 1 Harper's Rep. 391. Where a Trover for a horse. Where the plaintiff agreed to sell, and vendor of actually delivered a horse, with a stipulation in the written conpersonal property tract that the right of property should remain in him, and not pass the vendee to the vendee until half the consideration should be paid, the court held, that until the payment according to the contract, the payment at right of property in the horse remained in the plaintiff. upon condition of a specified time, with a stipula property is iu the ven payment; a sale of Per. Cur. Gantt, J. The possession of a chattel is in law tion that the prima facie evidence that it is accompanied with the right to property; right of but the presumption may be rebutted by higher and better evidence. to remain I hold it to be a correct and well established principle, that the dor till owner of a chattel may make a qualified contract respecting it, and in parting with the possession, still retain his right of property. the proper. It is the case in bailments, where the possessor has only a qualified ty by the vendee, right, the absolute right being in the bailor. So, a sale may be without perform- absolute or qualified, and the seller may secure himself by taking ing the stia mortgage of the thing sold, and the lien will attach on the pulation, mortgaged goods into whose hands soever they may come. The vendee has no right of property in the horse until payment; his sale, therefore, to Harrington, the defendant, with notice of the non payment, passed no title, and the plaintiff must recover. conveys no title. (D.) BY GIFT TO CHILDREN IN CONSIDERATION OF MARRIAGE; and see tit. "POSSESSION." 1. MOORE'S ADM'R V. DAWNEY et al. Oct. 1808. 3 Hen. & Munf. 127. will be ration of The plaintiff's intestate, intermarried with the daughter of Zacha- When they riah Burnly, Dec. 1795, who was a man of large fortune; and held as gift immediately after the marriage, Burnly sent the slaves in the de- in consideclaration mentioned to his son-in-law, in whose possession they marriage. remained until his death, in April, 1795; and afterwards they were seized upon execution, as the property of Zachariah Burnly. The court held, that where a father, possessed of a large fortune, sent his slaves immediately after marriage of one of his daughters to her husband, where they remained until the husband's death, which happened two years and four months after, they would presume the slaves were a gift in consideration of marriage. Per Tucker, J. It appears to me that the delivery of the negroes to the husband immediately after the marriage, may well be presumed to have been in consideration of marriage. 2. TAYLOR V. EUBANKS. Spring T. 1821. 3 Marshall's Rep. 239. circum ing indebt ed time he makes an Detinue for a slave. It appeared that George G. Taylor, on The mere the marriage of his son, the appellant, made a parol gift of the stance of a slave in question to him, and in about one year the slave was taken parent beout of his possession upon an execution issued against the father, who was indebted to the execution creditor in a considerable sum at the time of the gift. The court instructed the jury, that if they believed, from the evidence, that the father was indebted at the child, does not, of ittime of the parol gift of the slave to the son, the gift as to the exe- self, render cution creditor was void in law. Verdict for defendant; and void; it is the gift Taylor appealed. advance ment to his the intent to defraud, ates the Per Cur. Owsley, J. If by the instruction given it was intended that vitiby the court to decide, that under the statute against fraudulent gift. conveyances generally, the mere circumstance of a father being indebted at the time of making the conveyance, does, within itself, as matter of law, render a gift made to the son, in consideration of natural love and affection, void as to creditors, we entertain no doubt the instruction cannot be sustained. The statute of this |