
    
      WELLS vs. HUNTER.
    
    Appeal from the court of the sixth district.
    When a judgment dissolving an injunction is given on a plea to the merits, it forms res judicata on the matters at isseu.
    
   Martin, J

delivered the opinion of the court The plaintiff obtained an injunction against the defendant, to prevent the levy of an execution against a third person on a slave, part of the property of the plaintiff's ancestor, the injunction was dissolved on the plea of the general issue, the district court being of opinion that the law and evidence were in favor of the defendant.

West’n Dis’ct

October, 1826.

Writing is not of the essence of a contract but the evidence of it.

The plaintiff even procured a deed of sale from M'Laughlin, to himself and his co-heirs, stating the slave had been purchased and paid for by their ancestor. On this injunction was obtained, and the defendant pleaded the general issue, and the res judicata, by the former suit. The injunction was dissolved and the plaintiff appealed.

It is objected here on his part, that the dissolution of an injunction, is not a judgment which forms a res judicata, and that the title given by M’Laughlin, since the dissolution of the first injunction, cannot be said to have been acted on.

A judgment dissolving an injunction is very often as one of non suit, and form then no res judicata, but here the dissolution took place after a plea of the general issue, and the evidence was held to be in favor of the defendants.

The deed of M’Laughlin, obtained since the dissolution of the first injunction is only an evidence of the contract by which the plaintiff’s ancestor acquired a title to the slave; and the latter is in the hands of the heirs as assets of their ancestor's estate.

A contract is to be considered abstractedly, free from its form, the instrument which is the evidence of it; the one is the nut, the other the kernel. The writing is resorted to, in order to perpetuate the remembrance of the contract, but it is not of its essence. Fiunt scripturae, ut quod actum est, per eas faciliter probari poterit, et sine his autem valet quod actum est, si habeat probationem. L. 4. ff. de pign. 20, 1.

The civil code, 310, art. 241, requires every covenant, tending to dispose of a slave, to be written. But it does not avoid a covenant merely oral: since it provides, that if the covenant be denied, its existence shall not be proven by parol: a negative pregnant with the affirmative, that it may, by the admission of the party in the pleadings in his judicial confession.

Thus also the code 344, art. 2, requires all sales of slaves to be written, and declares oral ones null. But the immediate provision that no parol proof shall be received of an ora sale and the preceding clause just commented on, shew that the nullity is not an absolute one, but a qualified one, in case no other proof be offered but by parol.

Scott for the plaintiff, Thomas for the defendant.

This construction gives effect to every word used by the legislature, and therefore is the soundest. It gives effect also to the contracts of men when admitted or duly proven' ut res magis valeat quam pereat.

We conclude that the effect of the res judicata on the alleged title, cannot be avoided by the acquisition of new evidence in support of it, obtained since the present judgment.

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