
    C. Butlitt v. R. A. Stewart.—C. Jones and Wife, Intervenors.-M. White & Co., Warrantors.
    A parly to a suit cannot bo received as a witness ii‘ l\e is liable i'or costs; he cannot in such case be considered as testifying against his interest.
    'J’ho judicial admission, in order to be divided against the party pleading the same, must be one in the nature of a confession and avoidance of the plamtili’s demand, or some portion, as in the plea of compensation, otherwise the admission cannot be divided.
    Appeal from the District Court of tlie Parish of St. Bernard, .Foul-house, J.
    
      Geo. 8. Lacey, for plaintiffs and intervenors, appellants. llyams, Labai <& Jonas, ior warrantors, li. MeK. 8pearhi<j, for defendant.
   Mehbiok, C. J.

A case between the above mentioned parties, arising upon the same transaction, was before this court in 1856, and then dismissed as in case of nonsuit. In tlie present suit, Charles Jones and liis wife, Laura Utawarl, have intervened, claiming the interest represented by plantiff. Maunsel While and Theodore Ilion have been called in warranty, and the defendant lias instituted a reconvontional demand against the intervenors. Judgment was rendered against tlie plaintiff and inter-venors, and they appeal. They unite in tlieir demands and are represented by tlie same counsel in this court.

On tlie trial of tlie case, tlie deposition of the plaintiff was offered in evidence by tlio intervenors, but rejected by the District Judge. The defendant also offered the depositions of Maunsel White and liiun, which also met tlie same fate. These depositions were properly disregarded. The testimony of tlie witnesses tended to defeat the demands respectively "farmed against thorn.' Liable as they might be for costs, they could not considered as testifying against tlieir interest.

'"The'facts of tlie case may be briefly stated as follows :

In':Í85Ü;. John Caldwell Jr. and Daniel Hickey, being the joint owners a plantation named Laurels, near tlie city of Baton Kongo, in tlie parish of East'Baton Rouge, and tliirty-two slaves, sold tlie same by separate acts .to'7l/rs. Laura Jones, the intervenor, for the aggregate sum, as spoci-iied in tlie acts, of §42,500.

Jones and wife lived upon the plantation.

' The firm of Maunsel While ct* Co., it would seem, advanced the price, if in fact the title was not taken ill the name of Mrs. Jones for their benefit. The firm of Maunsel White ff (Jo. was at that time composed of Cuthbert Ihillitl, the plaintiff, and White and Ilion, the warrantors. While was either tlie principal partner, or a creditor of the firm to a large amount, say 5700,000. In 1851, the firm bought the negroes in controversy, viz : Lewis, Phillip, JSmile and Amanda, and sent them up to the Laurels Plantation, where they remained as part oí the force for over a year before the aefc of sale from Jones and wife to Stewart, the foundation of the present suit, was passed. In 1852, the firm of Maunsel White & Co. suspended payment for a time.' They were indebted to Matthew Ramsey, the father-in-law of Stewart, the defendant, in the sum of $36,0(10. The indebtedness of Mrs. Jones to Maunsel White cO Go., including the price of plantation and negroes subsequently bought, was about $52,000. It was proposed to arrange the indebtedness of Ramsey by a transfer to him of the plantation and slaves. Steimrt acted as Ramsey’s agent, and previous to the sale visited the plantation with Got. Nolan Slewa/rt, to ascertain its value and condition. Jones and wife, who were met by them on the way, informed them that there were about forty-four negroes on the, place belonging to it, and that the overseer could show the property. The negroes placed there by Maunsel White cO Go., now in cantroversy, were shown by the overseer as belonging to the same. Some other negroes which Jones had brought from Black River were excluded. The defendant and Gol. Nolan Stewart formed an estimate of the value of the property, including Lewis, Phillip and '.Emile, at $62,500. Amanda yeas, absent and not shown to them at that time, although they were informed she belonged to the place.

On the 19th of February, 1852, Jones and wife and Stewart, the defendant, appeared before II. B. Genas, notary public of this city, and in consideration of $65,000 paid and assumed by Rcmsey, transferred to the. defendant the plantation and certain slaves therein named and described as attached to and employed on said plantation. The description of the property was followed by this declaration in the act, viz :

“ The said property and slaves were acquired by the present vendor as follows : the undivided three-fourths thereof by purchase from John Gold-well Jr., by an act passed before Albert 0. Ainsworth, then notary public in this city, on the 20th day of March, 1850, and the remaining undivided fourth part by purchase from Daniel Hielcey by act passed before Thos. J. Beetle, then also a notary public in and for the city and parish of New Orleans, on the. 29th day of June, 1850.”

After many other clauses in reference to the price and excluding warranty, and declaring that the title was but a quit claim deed, the acfc_-concluded with the following clause : _ ./

“And as there has been a death among the slaves on the said plahtatjotf since it was purchased by the said vendor, and as there may possibly be errors as to the same in the names thereof, as well as in the niiknjmr, it well understood that the purchaser will make no claim for cojnpensatiqn in case the number of said slaves should fall short, it being thedntention of said vendor to sell all which are now living and as purchased by her,with the nxoaption of Zade, Yellow John, JUliga, her five children,\,and5 Riohard.”

Zade and Yellow John appear to have been acquired with the plantation from Galdwell cO Hidcey; the other seven excepted negroes were, it seems, brought from Black River. -

Stewart took possession of the plantation and negroes employed thereon, including those in controversy. Jones and wife having disturbed, him in possession of these last, he applied to the plaintiff, and represented to tlie latter that Lewis, PhilTtp, 1Jmile and Amanda were intended to bo included in the. sale.

The plaintiff examined the books oí Maunsel White & (Jo., and having found that the value of these slaves swelled the amount which was exacted of Ramsey, and that the title was, as he supposed, in himself, he thereupon executed in favor of Stewart an act of sale under private signature for the negroes in controversy, for the nominal price of seventeen hundred dollars, being' of the opinion that it was the intention of the defendant to purchase all except the negroes specially excluded by the act. Stewart shortfy afterwards made title to his principal, Ramsey.

This suit is brought to rescind the sale by act under private signature from RnlMli to Steioart, on the ground of fraudulent misrepresentation on the part of the latter'at the time he obtained the act, and error. Bullitt, in his answer to the intervention, admits that the title to the four slaves is in Mrs. Jones, but alleges that he has an interest in rescinding the sale.

Maunsel White for himself, and as liquidator oí Maunsel White & Co., excepted to the call in warranty because Matthew Ramsey who was the principal of the agent Stewart, was not cited; because Bullitt cannot stand in judgment, having no interest; and if the foregoing exceptions should be overruled, then they defend the title acquired by Ramsey from Bullitt.

The appellants in this court rely, in order to establish the fraud, principally upon the testimony of J. K. JSlgee, JSsg., and William Christy the notary who prepared the act of sale from Mrs. Jones to Stewart, connected with a judicial admission in defendant’s answer.

jWe remark, in regard to Mr. Jñgee’s testimony, taken as a whole, that it is quite as favorable to the defendant as to the plaintiff and intervenors, and makes nothing in their favor.

The plaintiff’s and intervenors’ attempt to show title in Mrs. Jones through a supposed judicial admission in defendant’s answer, is equally unavailing. It is true that defendant says that said Ramsey was the creditor of Maunsel White & Co. for upwards of $37,000, and that Airs. Jones owed them $70,000 on account of the price of the plantation and supplies, and ‘1 which said account included the price paid by said house of Maunsel White c6 Co., for the identical four slaves in controversy, to wit, Lewis, Phillip, JEmile and Amanda, and also the other slave, viz, a man named Robert, wrongfully taken away from said plantation by said Mrs. Jones, &e.”

But this allegation must be taken with the other allegations of the answer on the same subject, to wit, that the legal title to said slaves had been taken by Ciithbert Bullitt in his own name, and that he had never parted with said legal title, or vested the same in said Laura Jones, and in substance, that said slaves were transferred by Bullitt and received by defendant in good faith in pursuance of the understanding of the parties.

It is true, that a judicial admission may sometimes be divided against the party pleading the same. But the admission which may be so divided is one in the nature of a confession and avoidance of the plaintiff’s demand, or some portion of the same, as a plea in compensation, payment, or the avoidance of a contract by duress, fraud, error, and the like, where the defence pleaded necessarily admits the allegations of the petition, but avoids their effect by showing some other matter in bar of tlie same. Here the defendant does not admit a legal title in Mrs. Jones, but on the contrary, avers tliat tlie same was in Bullitt. The intervenors and plaintiff cannot, therefore, divide this portion of the answer and urge that because the price of these slaves was carried into the account, therefore, the title rested in Mrs. Jones, although she paid no part of the price of the same.

The testimony of Ghristy relates principally to what transpired and what was said and done by the parties at the time the notarial act was passed before Genas, in which Mrs. Jones transferred the property to Stewart- It is somewhat inconsistent with the last clause which he dictated in the notarial act. On the trial of the first case before this court, we said we did not think the fraud was legally proven by the testimony of Ghristy; that fraud should be clearly established. We see nothing in his testimony, as exhibited on the last trial, which makes the case stronger than the first, and we concur with the District Judge in opinion, that the plaintiff and intervenors have failed to make out a case for relief on the merits.

This view malees it useless to consider whether Bamsey should have been made a party, or whether Bullitt had sufficient interest to maintain the action.

Defendant has prayed for an amendment of the judgment in his favor.

The testimony of Bion is rejected, and therefore the defendant has failed in his claim for the negro Bobert, removed by intervenor.

The only damages which the law gives to the defendant for the wrongful bringing of this suit, are his costs. See Hale v. City of New Orleans, 13 An. 502.

Judgment affirmed.  