
    
      COPELLE, CURATOR, vs. DALTON.
    
    Appeal from the court of the parish and city of New-Orieans.
   Mathews, J.,

delivered the opinion of the court. This suit is brought by the curator of one Whiting’s succession, to recover from the defendant, a slave named Bob or Robert, as having been the property of the intestate at the time of his death. The defence as set forth in me answer to the action, is: 1st. Title in the defendant derived from Whiting, through the legal agency of one Cleveland; 2d. Title obtained directly from the latter as being the true equitable proprietor of said slave. The plaintiff obtained judgment in the court below, from which the defendant appealed.

The whole evidence of the case comes up,;, on the record; from a strict examination of which we are clearly of opinion, that the first ground of defence, relied on by the defendant, entirely fails him. It is manifest that the power of the agent had ceased by the death of his constituent, long before the sale was made to the appellant, and that this occurrence was known to the attorney in fact; thp defendant could, therefore obtain no title . . through him in that capacity, as representing Whiting, in whom resided the legal title.

In support of the equitable claim and right of Cleveland, which is alleged to have passed to the purchaser by the act of sale executed by the former, although made under pretence of power derived from the intestate, oral tes timony was offered to prove that the price of the slave was paid by Cleveland, and that the act by which the title was conveyed to Whiting, was a simulation to secure the property of the former, against the claims of creditors. This testimony was admitted in the parish court, subject to exceptions in rela lion to competency. The witness who offered to prove the fact, appears to be the vendor to Whiting; whether he could under any circumstances be admitted to invalidate, or give an entire different, effect to his own authentic act, than which that it purports to have, according to the writing itself, it is needless, in the present case to inquire; as we are of opinion, that testimonial proof could not legally be received to prove the pretended simulation of the act of sale to Whiting. The testimony of this witness must be wholly excluded from the case, ant! being excluded, leaves the defendant s claim without support. ⅛ or the correctness of this doctrine-—see vol. 2, 452. Ibid. 13.

Ripley Sr Conrad for the plaintiff, M'-Caleb lor the defendant.

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