Maxwell v. Collier.

to show, that Joy, his overseer, resided elsewhere, as alleged in his exception. The evidence shows, that the service was made on the defendant's overseer Joy, within the enclosures of the plantation, where he and defendant reside, in the parish of Concordia, although it does not establish, that the overseer resides in the dwelling house of the defendant. The whole plantation was the domicil of the defendant, and service on a person living on it was good. Code of Practice, art. 189. 19 La. 36.

On the trial, testimony was offered to prove a claim of the defendant's against the plaintiff, for the value of certain improvements put upon premises, leased to him by the plaintiff in Mississippi, under a written contract, by which his expenses in making said improvements were to be allowed to him. This evidence was, in our opinion, properly excluded by the Judge below. The plea of payment did not authorize evidence of an adverse claim in compensation, not equally liquidated with the plaintiff's demand. Civil Code, art. 2205. Code of Practice, art. 367. further appears from the records of the judgments,rendered in Mississippi, that the same claim was set up there, and passed upon. These judgments form res judicata, between the par

ties.

It

The appellant's counsel has urged, finally, that there is error in the judgment, as it allows eight per cent interest on the amount sued for, from the 19th of June, 1841, until paid; and that there being no evidence in the record, that such is the rate of interest allowed in Mississippi, only five per cent should have been given from the institution of this suit. The judgments sued upon draw eight per cent per annum interest from the date above mentioned. They are evidence of the interest due, as well as of the debt. Besides, a judgment rendered in this State, upon judgments obtained in other States, must, we apprehend, render them executory according to their tenor, whether this be done by issuing executory process upon them, or by decreeing their execution in an ordinary action.

Judgment affirmed.

Rachal v. Normand and another.

PRUDENT RACHAL v. FRANÇOIS M. NORMAND and another.

The sale of a slave must be in writing, but the law requires no particular form. The statement in a promissory note, made by the purchaser, that it was given for the price of the slave, is sufficient.

A purchaser, with knowledge of an existing privilege or mortgage, cannot avail himself of its not having been registered.

APPEAL from the District Court of Natchitoches, King, J. J. Taylor, for the appellant, cited 8 Mart. N. S. 136, 246. 6 Ib. N. S. 716. Acts of 1813, and 1824. Bullard & Curry's Dig. 596-597.

Sherburne and J. B. Smith, contra. A note reciting that it was given for the price of a slave, cannot be considered written evidence of a contract of sale. No contract is complete without the consent of both parties. In reciprocal contracts this assent must be expressed. Civ. Code, art. 1759. Contracts for the sale of slaves, or other real property, must be in writing. Ib. art. 2415. The sale to Normand was incomplete, wanting the signature of the vendor. 3 Mart. N. S. 458. Daquin v. Coison, 6 Ib. 679.

MARTIN, J. The facts of this case are these. The plaintiff sold a slave to Normand, for one thousand dollars, one half of which was paid in cash, and the balance was given in a note, payable in about twelve months. This contract was made in the presence of Lacour, who was called as a witness thereto. Lacour shortly after purchased the slave from Normand, who not long after left the State, being insolvent, and it is not proved where he has taken up his residence. The present suit is brought, on the appointment of a curator to Normand, for the recovery of the amount of the note, and against Lacour, in order to have it decreed that the judgment obtained against Normand, may be satisfied by the sale of the slave sold to him by the plaintiff, and by him to Lacour, in whose possession he is, the plaintiff claiming on him the vendor's privilege. Judgment was obtained against Normand, but Lacour successfully resisted the claim of

Rachal v. Normand and another.

the plaintiff, on the allegation and proof that the plaintiff's sale to Normand had not been registered. The plaintiff has appealed.

The sole question which the case presents for our solution is, whether the plaintiff can exercise his privilege of vendor, when he has neglected to register the sale, on making proof of the knowledge. of Lacour, at the time he made the purchase from the plaintiff's vendee, that the latter still owed part of the price of the slave to the plaintiff. The counsel of Lacour has denied that there was any written sale of the slave from the plaintiff to Normand, and he urges, that the parol sale of the slave is null. Our law has prescribed no form for the sale of a slave. It, however, requires it to be written, and forbids any testimonial proof of the sale. In the present case, the sale from the plaintiff to Normand appears in writing, on the face of the note, which is expressly stated to have been given for the balance of the price of the slave. This precludes Normand from denying the existence of a sale, of which he has furnished written evidence under his signature. The plaintiff, by receiving Normand's note, and instituting the present suit on it, has given evidence by a matter of record, of his having made the sale; so that there is nothing in the averment, that the sale did not take place. The knowledge of Lacour, at the time he purchased the slave, that part of the price was not then payable, is established. In the case of The Planter's Bank of Georgia v. Allard, 8 Mart. N. S. 136, the only question which this case presents, was determined in favor of the vendor. We there expressed our opinion that a purchaser, with a knowledge of an existing mortgage, cannot avail himself of the want of registry. It is true, that was the case of a mortgage, and the one now before us is that of a privilege. Both mortgages and privileges have the same effect, to wit; that of enabling the creditor to demand the sale, for the payment of his debt, of property in the possession of another. In the present comparison, we do not necessarily include the privilege of the vendor of other property than lands and slaves.

It is, therefore, ordered, that the judgment, as far as it relates to Norinand, be affirmed; and as far as it relates to Lacour, that it be annulled; and it is ordered, that the slave Daniel, in the pos

The Mechanics and Traders Bank of New Orleans v. Jemison and others.

session of the appellee, be sold to satisfy the judgment obtained against Normand; Lacour paying the costs in both courts.

THE MECHANICS AND TRADERS BANK OF NEW ORLEANS v. JOHN JEMISON and others.

The rule that notice of protest must be sent to the post office nearest to the residence of the party to whom it is addressed, is not of universal application; for where he is in the habit of receiving his letters at a more distant office, or through a more circuitous route, notice through the latter will be good. Notice of protest addressed to "A. B. of the parish of [stating the parish of his resi dence], at the post office at [mentioning the office at which he was in the habit of receiving his letters]," and deposited in that office, it being in the place where the protest was made, is a sufficient compliance with the second section of the act of 13 March, 1827, requiring the notice to be addressed to an endorser at his domicil, or usual place of residence. The addition of the words "at the post office -," does not affect the sufficiency of the direction.

at

APPEAL from the District Court of Concordia, Willson, J.

F. H. Farrar, for the appellants, cited Whittemore, &c. v. Leake, 14 La. 392. Lanusse v. Massicot et al., 3 Mart. 266. 1 Peters, 578. 2 Ib. 543. Bayley on Bills, 179. 16 Johnson, 218. 1 Pickering, 411. Walker's Miss. Rep. 530. 5 Howard's Miss. Rep., case of Patrick v. Beasely.

Stacy and Sparrow, for the defendants. A post office is not a proper place of deposit for notices of protest, unless they are to be transmitted thence by mail. 5 Mart. N. S. 137, 158, 359. 6 Ib. N. S. 506. 7 Ib. N. S. 491. 8 La. 170. Yerger's Rep. 166. 3 Littell, 498. 6 Mass. 317. Bayley on Bills, 275.

10 Johnson, 490. & Payne, 181.

Chitty on Bills, 7 Am. ed.

11 Ib. 231.

16 Ib. 22. 1

10 Mass. 90.

222, and note.

11 Ib. 231. 1 Robinson, 572. 1 Carrington Peters, 578.

BULLARD, J. The Bank is appellant from a judgment of nonsuit, rendered in favor of Dix & Glasscock, who were sued as endorsers of a bill of exchange. Their defence was the want of due notice of protest.

It appears, that the endorsers had their domicil and place of usual residence in the parish of Concordia, in which there was no

The Mechanics and Traders Bank of New Orleans v. Jemison and others.

post office at the time. The notices of protest appear to have been addressed to each of the endorsers, by name, "Parish of Concordia, Natchez Post Office," and were deposited in the post office at Natchez, when the protest was made. It is further shown, that they were in the habit of getting their letters and pa pers at the Natchez post office, and there is no evidence of their ever having received any at any other office, although there appear to have been post offices a few miles nearer the residences of the endorsers respectively, on the opposite side of the river, in the State of Mississippi.

We are of opinion, that the notices were sufficient. In 2 Peters, 121, the Supreme Court of the United States held, that the rule as to the nearest post office is not of universal application; for if the party is in the habit of receiving his letters at a more distant post office, or through a more circuitous route, and the fact is known to the person sending the notice, notice sent by the latter mode will be good.

In the case of Duncan v. Sparrow, at the last term, (3 Robinson, 164,) this court held, that the notice to the endorser would have been good, if it had been addressed to him at his domicil, or usual place of residence, and deposited in the post office at Natchez, where he was in the habit of receiving his letters. This has been done in the present case, and although the notary added the words, "Natchez Post Office," that direction does not, in our opinion, alter the case; because the postmaster already knew that the endorsers were in the habit of receiving their letters at his office, and he was not authorized to forward them to any other.

The subject of notices of protest has engaged our particular attention at this term, in the case of Mead v. Carnal and another, ante, p. 73; and we refer further to the authorities cited in the opinion delivered in that case, in support of the opinion now expressed, that the endorsers in the present case are liable.

It is, therefore, ordered, that the judgment of the District Court be reversed, and that the plaintiffs recover of the defendants, William Dix and B. F. Glasscock, in solido, the sum of twelve hundred dollars, with interest, at eight per cent per annum, from the 6th of January, 1842, four dollars costs of protest, and the costs in both courts.