WESTERN DIST. plaintiff acts as curator and alleging that he, the said Jean, September, 1834. is a person interdicted as incompetent to administer his own BABINEAU BENDY ET ALS. property, &c. in consequence of being deaf and dumb from his birth. The proceeding against the defendant, Bendy, has for its object, to subject certain property in his possession, as purchaser from Dugat, to a tacit or legal mortgage, which is claimed in favor of the interdicted person, on all Dugat's property. The court below, rendered judgment against the latter, for the amount of funds by him received on account of the interdicted, but decided against the claim of mortgage, on the property in the hands of Bendy, which had been purchased from Dugat. From this judgment, the plaintiff appealed. The correctness of this judgment, in relation to Dugat, is The law pre- not questioned, and the right of mortgage claimed, depends certain solely on the fact, whether the deaf and dumb person was which must be legally interdicted. sumes formalities pursued in order to obtain a judg son above the The evidence of the case, shows that he had, during his ment of interdic whole life, been considered as incapable of managing his tion against a person above the estate or person, with ordinary judgment and discretion, in age of majority. The law pre- consequence of the want of hearing and speech; but no sumes every per- formal judgment of interdiction, seems ever to have been age of majority, pronounced by any competent tribunal. It is true, that a capable of mancurator was appointed to him, at a time when he was over aging his own affairs, even the age of majority, and after the death of the person so persons not ex- appointed, Dugat, the maternal uncle of the individual cepted. presumed to be interdicted, assumed to act for him. The son has not been mortgage claimed on the property of the intermeddler, is one of created by law, and must be confined to cases expressly law; but being provided for. The article of the old Code, relied on by the deaf and dumb Where a per interdicted in pursuance deaf and dumb, and a curator ap- plaintiff, is found at page 456, and is expressed in the followpointed to manage his affairs, ing words, "there is a legal mortgage on the property of such curator canthose, who, without being tutors or curators, have taken on not claim a legal mortgage on the themselves, the administration of the property of minors, other, who has persons interdicted or absent, from the day when they did the first act of that administration." real estate of an intermeddled and collected moneys due said deaf and dumb person. The law prescribes certain formalities, which must be pursued, in order to obtain a judgment of interdiction against vs. any person who, from being of the age of majority, is presu- WESTERN DIST. med to be capable of managing his own affairs; and we September, 1834. know of no exception in relation to the deaf and dumb. The NIBLETT person in whose favor the mortgage is claimed, in the present WHITE'S HEIRS, instance, not having been interdicted in pursuance of the rules prescribed, is not one of those for whose benefit and protection the article of the Code cited provides. And according to the article, 16, page, 454, of the same book, "there are no legal mortgages, but in the cases directed by law." It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs, &c. NIBLETT US. WHITE'S HEIRS. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE Where a person borrows the slave of another, to do certain work for him, and through his neglect, or imprudent conduct, the slave dies, he will be bound to pay his value to the owner. So where A borrows the slave of B, to haul a load seven or eight miles, and a storm comes on, and the borrower refuses to stop and take shelter for himself and the slave, and the latter is lost, A will be answerable to B, in damages for the value of the slave. This is an action for damages, against the widow and heirs of the late Joseph White, to recover the value of a negro boy, owned by the plaintiff, and alleged to have been lost by the negligence of the said White, while in his possession on loan. The petition charges, that in the month of February, 1832, the plaintiff loaned a negro boy named Cesar, about sixteen years of age, to Joseph White, then living in the parish of Lafayette, who engaged, as he was bound by law, to take good care of said boy, and treat him well. That instead of doing WESTERN DIST. So, he required the boy to work after night, in the cold and September, 1834. rain, at a very unusual hour, without using any precaution NIBLETT to protect him from the cold and inclemency of the weather, in WHITE'S HEIRS. Consequence of which he died; he alleges the boy was worth eight hundred dollars, and that he has sustained damages resulting from his loss, of two hundred dollars more; that his widow and heirs have accepted his succession, and become liable for the amount of his said claim, for which the said White, by his negligence and misconduct, had rendered himself liable in his life-time. He prays judgment for the said sums amounting to one thousand dollars. The defendants plead a general denial, except what is expressly admitted: They admit that Joseph White had permission of the plaintiff, to employ his boy on a Sunday, about the time mentioned in the petition, but that he took all proper care of said slave, which his situation and circumstances would permit, and that the boy was lost without any fault or negligence on the part of the deceased. They pray that the plaintiff's demand be rejected. The testimony showed, that the plaintiff and White lived neighbors to each other, and were in the habit of borrowing and lending to each other. That on a Saturday, White was assisting the plaintiff with his oxen to move a house somewhere in the neighborhood; that White had some pieux near the place to which the house had been removed, told plaintiff it would be a good time for him to get his pieux home if the plaintiff would hire his negroes and oxen the next day, (Sunday,) to which the plaintiff assented on White's agreeing to pay the negroes for their Sunday work. It was seven or eight miles to White's house, to which the pieux had to be hauled, and they were late in the day getting at them. The weather which had been warm on Saturday, the day preceding, (the negroes being thinly clad,) suddenly changed and blew a storm of rain and sleet. The negroes and carts had a bad morass or marais to cross in their way; night came on, and by the time they got across the morass to a house, the negro boy in question, was frozen to death. The plaintiff's testimony further showed, that it was one WESTERN Dist. or two o'clock at night, when White came home, nearly September, 1834. perished with cold, and told his wife, he wished he had never NIBLETT seen the pieux; that one of the plaintiff's negroes was dead, WHITE'S HEIRS. and he expected he would have him to pay for. The district judge was of opinion, the defendant's were responsible for the value of the slave lost, gave judgment accordingly for six hundred dollars, and costs of suit. The defendants appealed. Brownson, for the plaintiff. Garland, for the defendants. Martin, J., delivered the opinion of the court. 78. Where a per slave of another The plaintiff claims the value of one of his slaves, which he lent to White, and who through the gross neglect and ill son borrows the conduct of White, was compelled to travel, during a great to do certain part of the night, while a very uncommon storm raged, and through his although very thinly clad, so that he suffered so much through prudent conduct, fatigue and the inclemency of the weather, that he died. neglect or im the slave dies, he will be bound to the owner. The defendants denied the ill usage and misconduct to pay his value attributed to him.. There was a judgment for the plaintiff, and the defendants borrows the appealed. slave of B, to haul a load seven or eight miles, and a storm comes on, and the borrower refuses to stop and take No question of law arises in this case which turns entirely on matters of fact. We have carefully examined the testimony, and are unable to conclude that the district judge erred. It appears the deceased was warned by a person near shelter for himwhose house he passed, of the danger of pursuing his journey self or the slave, during the storm, and the offer was made to him of a shelter lost, A will be for himself and the negroes who were with him; but he in damages for persisted in continuing to travel. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. and the latter is answerable to B, the value of the slave. WESTERN DIST. D'ARBY'S HEIRS vs. BLANCHET'S HEIRS. D'ARBY'S HEIRS vs. BLANCHET'S HEIRS. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE The principle, that possession of a part of a tract of land, is possession of the whole, and sufficient to prevent the adverse party from acquiring absolute title by prescription, cannot prevail over the adverse possession of the other party, under a title of higher dignity, and a definite location by authority of the sovereign. Where land has been possessed, even under an erroneous location, for more than thirty years in conformity to it, in the presence of the adverse claimant, the plea of prescription will prevail, and the possessors quieted in their possession and title. The plaintiffs sue, as the testamentary heirs of Pierre D'Arby, f. m. c., deceased, late a resident of New-Orleans, to recover from the defendants, who are the heirs and legal representatives of Olivier Blanchet and wife, both deceased, a tract of land, fifteen arpents on one side, and fourteen on the other side of the river Vermilion, with the depth of forty, being the largest portion of an original tract, of twenty arpents front on each side of the Vermilion, with the depth of forty, granted by the Spanish government, finally to the plaintiffs' ancestor, by order of survey, signed by governor Galvez, the 22d of March, 1791. The plaintiffs allege, that the defendants are in possession of the land, and refuse to give it up : they pray that it be decreed to belong to them, and that they be quieted in the possession thereof. The defendants claim the land, under a complete legal title, derived from the plaintiffs. They allege that the plaintiffs sold eleven and one-half arpents, being all of the remaining tract of land, claimed by them in their petition, to one Pierre Dubois, by public act, dated May 8th, 1817, being six arpents on the right, and five and one-half arpents on the left side of the Vermilion; and as the parties were uncertain as to the number of arpents, then belonging to the vendors, agreed, that if there should be a greater quantity than was |