Harper v. Destrehan , 2 Mart. (N.S.) 389 ( 1824 )

Porter, J.

delivered the opinion of the court. The plaintiff sued to recover a female slave, who had been illegally and forcibly taken out of his possession. The judge below decreed he should recover, but condemned him 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 first question for our decision, is sented by a bill of exceptions taken to the introduction of a document offered by the plaintiff, to prove he was guardian of the minor for whose USC he sued. We find it unnecessary to decide whether the paper offered was duly authenticated or not, for by the pleadings the plaintiff was not obliged to offer evidence to this fact. The plea of the ant was nothing more than a general denial. The exception which would have required this proof, should have been specially pleaded ; for it was a dilatory one, and it was waved by putting in a defence on the merits. Cur. Phillip. Citacion, nos. 2 & 3.

The evidence proves the identity of the slave, that she was part part of the estate of one Wm. Burland, deceased; and came into the possession of the plaintiff as guardian to Wm. Burland junior. The title under which defendant claims, is of a date previous to this, and nothing shews 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 that 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 public action. Civil Code, 488, art. 74 & 75.

Slaves, by the law of this country, are considered as immoveable, not moveable : therefore the above rule does not apply to them. The reason on 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.

christy for the plaintiff, Grymes for the defendant.

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 do recover of the defendant the slave claimed in the petition, with costs in both courts.