Penalta v. Borges'

Martin, J. delivered the opinion of the court. The plaintiff is appellant from a judgment which refuses his claim to be placed on the tableau of distribution, of the estate of the defendant’s testator, for the sum of sixty-three thousand six hundred and thirty-four dollars, being for the hire and value of nine slaves which he left with the deceased, to be hired for his (plaintiff’s) benefit. The facts of the case are these: A Portuguese vessel with a cargo of slaves, of which the above nine made a part, was captured by a pirate on the high seas, recaptured by an American vessel and brought into the port of Charleston; libelled, and the slaves decreed to be restored to the vice consul of Portugal. This officer finding no vessel destined to a Portuguese port, in Charleston, the plaintiff was employed to seek for such a vessel elsewhere, and for that purpose brought the slaves to New Orleans, where he delivered them to the deceased Manuel Borges, and soon after left the country. This happened about twenty years ago. There is no evidence of the probable value of the slaves in question or their hire. The judge of probates has dismissed the case for want of this evidence. There is a bill of exception taken to the rejection of a witness offered to prove that Borges acknowledged he had received and held these slaves as the agent of Penalta; the witness was rejected on the ground that parol evidence cannot be received to prove title to slaves. The position assumed is correct, but not applicable to the present case, in which nothing was sought to be proved,.but that the deceased was the plaintiff’s agent to hire the slaves and account for the proceeds. It is therefore ordered, adjudged and decreed, that the judgment [851] of the probate court be annulled, avoided and reversed, and the case remanded for further proceedings, with directions to the judge to admit testimonial proof of the agency of the deceased in receiving the slaves in question on hire; the costs of the appeal to be borne by the estate.