
    Penalta v. Borges’ Executor.
    Parol evidence is inadmissible to prove title to slaves, but a witness may be received to prove that the defendant admitted he had received and held certain slaves as the agent of the plaintiff.
    Appeal from the court of probates, for the parish and city of New Orleans.
    The plaintiff alleges the succession of Manuel Borges is indebted to him in the sum of $63,634, for this, that in 1820 he left with said Borges nine slaves, with the understanding that he was to hire out said slaves and remit to him the proceeds at Kio Janeiro, in Brazil; but that he had never received any thing from him. He further alleges that said Borges several -times admitted the slaves were left with him to hire out for his (petitioner’s) 'benefit, and that he had totally failed to account for either the slaves or their ''[349] hire; that their value and that of their services or hire are well worth -the sum he claims, and for which he prays judgment.
    The executors and heirs excepted, and denied the plaintiff’s right to main•tain his action, and that his opposition should be dismissed.
    On the trial the plaintiff in opposition offered a witness to prove that Borges in his lifetime had acknowledged that he held these slaves as the plaintiff’s agent. This evidence was opposed on the ground that parol proof •could not be recéived to show title to slaves, under the allegations in the opposition, which objection was sustained by the court, and a bill of exceptions taken.
    The plaintiff offered the record of a proceeding against him in the United States district court for the eastern district of Louisiana, on account of these same slaves.
    This evidence showed that a Portuguese vessel with slaves (including the nine now claimed,) had been captured at sea by pirates, and recaptured "by an American vessel and brought into Charleston, where the vessel and ■ cargo .with .the slaves were libelled. The slaves were claimed by the vice consul of Portugal and given up as belonging to Portuguese subjects, and the plaintiff appointed agent of the Portuguese claimants to convey them thither. They were put in the schooner North Star and brought to New Orleans, in order to procure a vessel to taire them to Portugal. The vessel was seized, and the plaintiff arrested for violating the slave trade laws. He was however released, and in the mean time put the slaves into the possession of Manuel Borges, as he alleges to be hired out. He shortly after left this country for Brazil. Borges never accounted, and lately died. The slaves or their value, hire, &c., are now claimed by Penalta, the Portuguese agent who had them in possession and placed them with Borges.
    The judge of probates says in his judgment, the slaves “ did not belong to Penalta, but were the property of certain Portuguese subjects, and that the opponent (Penalta) only acted in relation to said slaves as agent of the Portuguese consulate.' He therefore can maintain no action in his in- [350] dividual capacity.” The opponent appealed from this judgment.
    
      Jennings for the appellant.
    
      Eoselms for the appellees.
   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.  