
    
      ERWIN vs. PORTER.
    
    Appeal from the court of the first district*
    oral evi-tJence cannot be given of ti>" con ems of apsper in »ne ⅛ him t” pro-trial*
   Matthews, J.

delivered the opinion of the 1 The defendant in the present case caused an execution to be levied on a quantity of cotton m the possession of one A. Yvrgnt, against whom he had obtained a judgment.— The plaintiff claimed the property seized, and obtained an injunction to prevent its sale, which was, on hearing the cause, made perpetual by a final judgment; and from that the defendant appealed.

The cotton is claimed by the appellee in consequence of having been raised on his plantation by the culture of his slaves. The title set up to the plantation and slaves, is evidenced by a sheriffs’ deed, which was made in pursuance of a sale under execution of the property, as belonging to the said Wright. The validity of the title is not impugned by the evidence ; but die defendant attempted to prove on the trial of the cause in the court below, that the plaintiff has re-sold the land and slaves to Wright by an act under private signature; and for that purpose, two witnesses were examined, under an agreement which subjected their tes-timonytoaJl legal objections. These witnesses prove the existence of a contract, in ‘ ting, between Erwin and Wright, by which the former sells to the latter the property above mentioned.

Their testimony was, however, finally rejected by the district court in rendering the judgment which perpetuated the injunction. We think this proceeding was correct. The evidence offered is inferior to the instrument of writing, the contents of which, the witnesses were introduced to prove. It is true, that it was not in the possession or power of the defendant; but it is shewn by the testimony of Dutton, one of the witnesses, that the sale, of which he saw a copy in the possession of Wright, purported to have been made in duplicates, one of which, it is presumed, was in the power of the plaintiff, which he ought to have been notified to produce before oral evidence of its contents could have been legally permitted. Wright, in whose possession the other duplicate deed was seen, is competent to testify in the present cause, and might have been subpcened with an order to produce the document.

The evidence on the part of the plaintiff T)roves ⅛0 land on which the cotton grew, to be his property, and also the slaves which cul-b vated it. From this demonstration, it follows as a corollary, that the cotton is his.

Morse for the plaintiff, Preston for the de* fendant.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  