
    BACH VS. HALL.
    Western Dist.
    
      October, 1831.
    APPEAL PROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, THE JUDGE OP THE PIPTH PRESIDING.
    If a party is required to answer interrogatories, and state whether he had not contracted to sell the property claimed, to the defendant, and he answers in the negative, his answers cannot be disregarded; unless the facts disclosed in them, show there was such a contract as the defendant alleged.
    When the plaintiff is interrogated to declare whether certain slaves claimed by him, had not been sold by him to the defendant, and he denies it, his answers cannot be allowed to be disproved by witnesses: it would be establishing the sale by parole testimony, which is prohibited by the code.
    This suit is brought for the recovery of three negroes, which the plaintiff alleges he purchased at sheriff’s sale, but were taken into possession and detained by the defendant, who refuses to deliver them up. He prays for the delivery of the slaves and fifty dollars for then hire.
    At October term, 1829, the death of the defendant was suggested and the suit revived against C. Mulholland, his executor.
    The executor pleads a general denial: and averred that the plaintiff sold the negroes to Hall, and received one bale of cotton in payment, and that he, as executor, is ready to pay the balance whenever it may be demanded.
    The executor propounded interrogatories to the plaintiff requiring him to explain and to state if he did not sell the slaves to Hall, Sic. His answers are stated in the opinion of the court. The defendant excepted peremptorily to the action, that it is a possessory one, and according to the plaintiff’s admissions, the defendant has been in possession of the negroes for more than twelve months prior to the commencement of this suit.
    The plaintiff replied that it was a petitory action, and that the title is directly at issue.
    There was a verdict and judgment for .the plaintiff, &c. The plaintiff produced .the sale and deed of the sheriff to him of the negroes for forty-five dollars. His answer to interrogatories explained the defendant’s possession.
    The defendant offered parole evidence to contradict the plaintiff’s answers to interrogatories, which was objected and excepted to on the ground that it went to prove a title to the slaves by parole.
    Flint, for the plaintiff.
    1. In this case the plaintiff has been interrogated on oath to make out a sale and title to slaves or immoveable property by his confessions.
    
      2. He denies the sale or alienation, and parole testimony cannot be administered, or admitted to contradict his answer, and make out the sale and title to the property in dispute.
    
      Barry, for defendant.
    1. The plaintiff’s answers to the interrogatories propounded, makes a sale. He confesses the price, the thing and consent given. The time for payment is the “ feme de payement,” which does not refer to the essence of the contract. It differs from a condition in this: The purchaser in the former is debtor from the date of the contract; in the latter not until the happening of the condition. Louisiana Code, article 2414.
    2. He makes a sale clearly the “ le pacte commissoir.” The Roman law resolved this contract, ipso facto, by non-payment, at the time agreed on. The French jurisprudence requires the sale to be rescinded before the vendor can recover. Pothier Contrat de Vente, numbers 458-9. Louisiana Code, articles 1907-8.
    3. The plaintiff confesses the delivery to defendant three years ago. The confession of sale and delivery of the slaves is good against the vendor. Louisiana Code, article 2255.
    
      Winn, on the same side.
    1. The court a quo improperly rejected parole evidence to disprove the plaintiff’s answers to interrogatories. If the plaintiff has sworn falsely, and the defendant can prove it by two witnesses the answers are disproved and the interrogatories should be taken pro confesso.
    
    
      2. False answers should be taken and held for nought. If the plaintiff had not answered, it is clear the interrogatories would be taken as confessed — a fortiori if his answers are false and can be so shown by legal proof. • .
   Porter, J.

delivered the opinion of the court.

The plaintiff claims three slaves which he avers are his property, and alleges that the defendant has got them into his possession, and refuses to deliver them up. The answer is composed of a general denial, and an averment that the plaintiff sold and delivered to the defendant’s testator in his life time, the property mentioned in the petition; and further, that the plaintiff received one bale of cotton in part payment of the purchase money. The cause was submitted to a jury, who found a verdict in favor of the petitioner for the slaves, and in favor of the defendant for the value of the bale of cotton. There was judgment accordingly, notwithstanding an attempt to obtain a new trial, and the defendant appealed.

The following interrogatories were submitted to the plaintiff:

1. Did you not sell the slaves mentioned in your petition, to John Hall, and give him possession of the same 1 2. Did he not give you one bale of cotton in part payment of the price of them? Did you not leave these matters once to arbitration: who were the arbitrators ?

The plaintiff answered to the first, “that he did not sell to John Hall the slaves Peter, Mary, and her child; but that three years ago the said Hall wishing to buy of him the said slaves, and alleging that he could, at the expiration of the first of the above three mentioned years, pay the price demanded for them; it was agreed between the parties,! that the said slaves, though owned by plaintiff, should remain! in possession, and at the service of John Hall until the expi-l ration of the year aforesaid; and should then the said Halil pay the price agreed upon for the said slaves, that the said) Bach should divest himself of his title to the said slaves, and! sell them to said Hall. At the expiration of the said year could not or would not pay as agreed upon; and no sale of the slaves took place.” •

To the second interrogatory, he answered “that the bale of cotton was given to deponent in part payment of the hire of said slaves, should not the sale of them take place at the time agreed upon for the purchase and payment of the said slaves, should the said Hall pay for and purchase the said slaves at the period agreed on, and fixed by the petitioner.”

To the third, he answered “that these matters were left to the arbitration of James D. Spurlock and John D. Pryor, and that the defendant never did comply with the award given.”

It has been contended on the part of the appellant that the court, not the plaintiff, are to judge whether there was a v ^ sale or not, and that therefore that part of the answer which denies there was a sale, must be disregarded. This is true, if the circumstances declared show that there was in fact , . , , , such a contract. Put the evidence proves that no sale took place. The plaintiff denies it, and states facts going clearly to establish, not an absolute sale, but a promise to sell, on condition the deceased paid the price at a certain time. He accounts for the possession, by swearing that the slaves were placed with the testator on hire, in case he should not be able to purchase them.

The defendant attempted to disprove the truth of these answers to the interrogatories, and the refusal of the court to permit him to do so, forms the ground of a bill of exceptions, r ^ t which appears on record. We think the judge did not err. The law declares the verbal sale of slaves to be void, unless acknowledged by the vendor in his answer to interrogatories: f , . . , , , ,, , , ° ’ and m addition requires the sale should have been accompanied by delivery. In this case the person alleged to have pold, does not confess, but on the contrary, denies he made such a contract. To permit the answer to be disproved by Lwo witnesses, would be establishing the sale by parole eviBence, for without the testimony of these witnesses, no sale lould be shown. If the principle contended for were sound, Ihe prohibition in the code would be a dead letter. It could ]3e evaded in every case by putting interrogatories, and when we).e negatived, verbal proof which the law for purposes of policy has excluded, would come in. A construction leading to such consequences cannot be adopted. It would be permitting that to be done indirectly, which the law would not permit to be done directly. If the plaintiff has not sworn the truth, the courts of criminal jurisdiction are open for his prosecution and punishment. But whether he has or not, the rules in relation to this contract have been too rigidly fixed by the legislature to permit any infringement of them in settling the civil rights of the parties.

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