It was made, in 1824, from the plaintiff's father to him, and purports to have had three witnesses to it. At May term, 1824, it was proved in the Sumner county court, by Edward Elliff, one of the subscribing witnesses, and certified for registration; and on the first of July, 1824, on this probate, registered. An office copy was offered, and objected to, because proved by one witness only, but received. Was the proof of one witness sufficient to authorize the registration? The first act requiring two witnesses to instruments required to be registered, is that of 1805, ch. 16. sec. 2., which applies to the settlement of slaves, or other personal property, in consideration of marriage. The act of 1807, ch. 85. sec. 3., is, in this case, the governing provision. In the mode of proof to authorize registration, there had been no difference in cases of transfers of lands or slaves before 1807, and it is manifest the act of that year did not intend to make any. As to lands, it is clear, two witnesses are required; the deed is to be proven by at least two subscribing witnesses, "and all bills of sale or other instruments of writing for the transfer of personal property, shall be so proven." The seventh section provides for the registration of deeds, theretofore made, on the proof of only one witnesss, because, until 1805, in no case had more than one been required. The proof by one witness did not authorize the registration of the deed; consequently, the copy offered in evidence was incompetent to go to the jury. Judgment reversed.

12.

PIERCE V. GRAYS et al. Feb. T. 1818. 5 Martin's Louisiana

Rep. 367.

a donation

slaves de

the donee's

father, is

irrevocacable, although he

Per Cur. Mathews, J. The plaintiff, and appellant, claims two In Spain, slaves from the defendants. On the 17th of August, 1809, he to an inpurchased from Philip A. Gray, father of the defendants, eighteen fant, of slaves, and among them, the two now claimed, as having always livered to remained in the possession of the vendor, or his heirs. On the next day he executed a deed of gift in favor of Mayo Gray, and Sarah A. Gray, infant children of the vendor, for said slaves. The property remained in this situation till the 17th of September, 1814, formally when the donor seems to have changed his benevolent intention accept the gift. towards the donees, and declared, before the judge of the parish of Feliciana, his will and desire to revoke and annul "the deed of gift executed by him in the year 1809, before Wm. Lewis, syndic of the district of Feliciana, then under the government of Spain."

does not

The fact of the written donation executed by the plaintiff appears so conclusively, by the introduction of the instrument intended as a revocation of the donation, that it is thought unnecessary to notice the bill of exceptions of the defendants, on the introduction of parol evidence, to prove the acknowledgment of the plaintiff to that effect. The only question of law which arises out of these facts is, whether the donation was perfect and irrevocable, without any formal acceptance, for the infants by their father, or some other person.

According to the rules laid down on the subject of donations, inter vivos, it is clear, that the donor is bound, only from the acceptance of the donation, in precise terms, and that it produces no effect, except from the day of the acceptance. Civ. Code, 220. art. 54. Were the case to be decided by these rules, it is probable that the judgment of the district court would prove to be an erroneous one. But we are of opinion, that our code does not properly exhibit the rules by which the point in dispute between the parties must be settled. The contract was made under the Spanish government, and the municipal laws of Spain are alone applicable to it. These, it is believed, are not so rigorous as our statute in requiring a formal acceptance, in order to give validity to a donation, or to render it perfect and irrevocable; except in the cases laid down as ingratitude, a change of situation in the donor, who has given the greatest part of his estate, the subsequent birth of children, &c., which apply to donations, complete as to form. Gomez, in his Varia Resolutiones, lays it down, on the subject of donations, that they are executed in two modes: by delivery, or promise. By delivery, quando nulla precedente promissione vel obligatione quis tradit suum rem alteri causa donationis ; quid tunc statim valet et perficitur donatio; et transit dominium et plenum jus rei, in accipientem, ex titulo et causa donationis. A donation by promise is when a person obliges himself to give or deliver something to another. If a donation, accompanied by the delivery of the thing, be complete and perfect, it follows, as a necessary consequence, that it ought to be considered as irrevocable on the part of the donor, unless for causes authorized by law. The donation made by the plaintiff, and appellant, was not accompanied by any formal delivery of the slaves given to the appellees, or any person for them; but they were left in the possession of their father, who held them before the execution of the deed of gift to his infant children. He was the proper person to have received the dona

tion for them; and having already the possession of the slaves, no formal delivery was necessary to transfer the dominion of them in full right to the donees. We consider the slaves as having been in the possession of the father, under the donation to his children, and held for them, from the time of the execution of the deed of gift, to the commencement of this action. Was a formal, written acceptance of the donation necessary, on the part of the donees, under these circumstances, to render it irrevocable by the donor ? The court is of opinion, that it was not. It is very doubtful whether, by the laws of Spain, a formal acceptance be necessary in any case where the delivery of the thing accompanies the donation. But in cases of minors, infants, and absent persons, no acceptance is necessary to render the donation irrevocable, according to Gomez. (Treatise on Donations, p. 3.) It is true, that in a donation to an absent person, it seems required that the title or deed be transferred to the donee, in order to render the donation irrevocable; or that a clause be introduced, by which the notary, or officer before whom it is made, be requested by the donor to accept it for the absent persons, and that he then takes it as if accepted in due form. Febrero, 1. 5. n. 19. These regulations are confined to absent persons; and we find in the same books, (n. 30.) that a donor cannot revoke a donation made in such a manner so as to substitute a third person to the donee, when the substitute is an infant. From this view of the case, we are of opinion, that the judgment of the district court is correct.

13.

GARRETT V. HUGHLETT. April T. 1800. 1 Har. and Johns.
Rep. 3.

circum

The court held, that a bill of sale of negroes might be deemed A bill of sale of nefraudulent from other circumstances than the continuance of pos- groes may be deemed session. The act of assembly, by requiring the bill of sale to be ac- fraudulent knowledged and recorded within a limited time, intended by those from other circumstances of notoriety to take off the presumption of fraud ari- stances sing from the vendor's continuing in possession. But if there were vendor's other circumstances attending the transaction, which tended continuing to show it fraudulent, those circumstances might be given in sion. evidence.

than the

in posses

14.

If a slave, sold, re

mains with the vendor,

to be seiz

debts.

PIERCE V. CURTIS et al. March T. 1819. 6 Martin's Louisiana

Rep. 413.

Per Cur. Mathews, J. In this case the plaintiff, and appellant, sues for the recovery of a slave, described in the petition. The he is liable action was commenced against Curtis alone, who, at the time, had ed for his possession of the slave. Gayles, the other defendant, intervened, and claimed the slave, in his answer, as his own, suggesting fraud in the transaction, by which the plaintiff obtained his title to the slave. Both Pierce and Gayles claim the slave under Curtis. The evidence on record shows the following facts :-On the 21st. of October, 1813, Curtis, by a notarial act, sold the slave in question to Abner Stanley, and retained a mortgage for his payment. It does not appear that the sale was attended with any tradition; but Curtis held possession of the slave till August, 1814, when Stanley, at his instance, conveyed to Pierce, by a notarial act, all the title which he acquired by the act of sale in 1813. After this, Curtis continued to possess the slave, as his own, until some time in 1815, when the sheriff of East Baton Rouge sold him, under an execution, upon and against the property of Curtis, and Curtis purchased him, at the sheriff's sale. On this statement of facts, the only question to be decided is, whether the slave sold, thus remaining with the vendor, and never having been delivered to the vendee, was, or not, liable to be seized and sold to satisfy the debt of the former. The case of Durnford v. Brook's Syndics, 3 Martin's Rep. 222. 259., is relied upon by the counsel of the defendant, and appellee, Gayles, and is certainly completely applicable to the present case, except that in the former the things sold were merchandise, which pass by a mere verbal agreement and delivery, whereas, the dispute is now about a slave, the title to whom has been transferred by public and authentic acts. But we are of opinion, that this circumstance cannot operate against third persons, such as creditors, so as to defeat their just claims founded on principles recognized in the above case. There is not any evidence. that the slave was ever delivered to Pierce, or that the latter ever exercised any act of ownership over him, except that which is derived from an extra-judicial acknowledgement of Curtis, whose interest it is to countenance the forced sale by which he was to be benefited. It is true that, according to our statute, the delivery of a slave who is sold takes place when it is really made to the buyer, or by the mere consent of the parties; when the sale mentions,

that the slave has been sold and delivered to the buyer, or when he was already in possession under another title. Civ. Code, 350. art. 28. But this constructive delivery does not appear from the expressions of the act of sale, and there is evidence that the slave remained in the possession of the vendor.

15.

DORSEY V. GASSAWAY. June T. 1809. 2 Har. & John's Rep. 402.

If

ther the

re

Held by the court, Chase, Ch. J., that if slaves remain in posses- And whesion of the vendor, the bill of sale must be recorded; and whether slave they remained in his possession is a matter of fact for the jury. they find they were not in his possession, the bill of sale is required to be recorded, and is not evidence, although it recorded, unless the execution of it be proved.

16.

mains with

the vendor

not

or not, is a

matter

of

was

fact.

RICE V. HANCOCK. Nov. T. 1824. 1 Harper's Rep. 393. The defendant gave an absolute bill of sale of a slave, which stated a past consideration. The court held, he was not precluded from showing that no consideration was in fact paid.

Per Cur. Gantt, J. The consideration paid for the negro might, or might not, have been inserted in the bill of sale, and the transfer in law would have been as effectual one way as the other. The insertion is more a matter of form than substance, and in no event can preclude the party from inquiring into it. Had the defendant offered evidence to show that the bill of sale was intended to transfer a less interest than what was expressed therein, or that another negro than the one described was intended, &c. then such evidence would be in contradiction to the deed, and not admissible. In transactions of this kind it is well known that the consideration expressed in the instrument is not always paid down, but secured by bond, note, or verbal promise, and it is the business of the purchaser to fortify himself with evidence of having paid the consideration agreed to be given.

17.

MONDAY V. WILSON et al. August T. 1832. 4 Louisiana Rep. 338.; S. P. TRAHAN v. M'MANUS et al., 2 Louisiana Rep. 209.; and see, 9 Martin's Rep. 648.; 6 Martin's Rep. N. S. 324.

Where the

Per Cur. Mathews, J. In this case the Plaintiff claims two slaves, which are in the possession of the defendant. The for- vendor of